David Wayne Herring v. State

Opinion

ACCEPTED

12-17-00255-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS 12/1/2017 1:17 PM

Pam Estes

CLERK

FILED IN

SMITH COUNTY COURTHOUSE 100 N. BROADWAY 4th Floor D. Matt Bingham 12thTELEPHONE:

COURT OF APPEALS TYLER, TEXAS TELECOPIER:

(903) 590-1720 (903) 590-1719

TYLER, TEXAS 75702 Criminal District Attorney 12/1/2017 Michael1:17:48 PM Chief J. West, Appellate

April Allison Sikes, First Assistant Smith County PAM ESTES Jennifer Barfield, Office Director Clerk

December 1, 2017

12th Court of Appeals 1517 West Front Street, ste. 354 Tyler, Texas 75702

Re: 12-17-00255-CR, Herring v. State - State’s Letter Brief.

To the Honorable Judges,

Appellant argues under a single point that his court costs in this case should be

reduced based upon a Court of Criminal Appeals' decision holding that two portions of

the Consolidated Court Cost fee were unconstitutional. See Salinas v. State, ___ S.W.3d

___, 2017 Tex. Crim. App. LEXIS 284, *11-16 (Tex. Crim. App. Mar. 8, 2017). The

Court in Salinas mandated that its holding would apply only:

(1) to defendants who raised the appropriate claim before March 8, 2017, the date that Salinas was decided, provided that the petition is still pending; or

(2) prospectively, to trials that end after March 8, 2017.

Id. at 15.

The record shows that Appellant entered a plea of guilty and was convicted and

sentenced on August 11, 2017 - approximately four months after the opinion in Salinas was issued. (1 CR: 67, 85). A total of $383.00 in court costs were made attendant to this

conviction. (1 CR: 85, 88). This total does not include the restitution ordered in the

amount of $180.00. (1 CR 85).

The Bill of Costs in the record shows that, as part of the total court costs,

Appellant was assessed $133.00 as a "Consolidated Court Cost fee" - parts of which

have now been found to be unconstitutional by the holding of Salinas. (1 CR: 88).

Specifically, the subsections of Tex. Local Gov't Code § 133.102 ordering payments

made for "abused children's counseling" and "comprehensive rehabilitation" constituted

a legislative overreach that serves no legitimate criminal justice purpose. Salinas, 2017

Tex. Crim. App. LEXIS 284 at *8, 10. The Court reasoned that directing court costs to

these funds is unconstitutional on the basis that they violate a right of the courts under

the separation of powers doctrine; there is no constitutional issue with the fee that

relates to a defendant's personal rights. Id. at 14. In fact, the $133 total Consolidated

Court Cost fee in this case could remain untouched, so long as the funds are redirected

to a "legitimate criminal justice purpose." Id. at n. 54. However, as of the date of this

reply brief, the Legislature has not yet acted to address the constitutional problem

discussed in Salinas regarding the Consolidated Court Cost fee.

As a remedy to the unconstitutional legislative allocation of fees, the Court in

Salinas modified the appellant's original court costs to remove the $133.00 Consolidated

Court Cost fee. Id. at 16.

The State believes that the holding of Salinas is expressly and prospectively

applicable as Appellant's trial was held after that opinion was issued. Id. at 15.

Consequently, the State must concede that the Bill of Costs and the Order Withdrawing

Funds should be modified to reflect actual court costs of $250.00 and not $383.00 as

currently reflected. See Tex. R. App. P. 43.2 (b) (West 2017); Salinas, 2017 Tex. Crim.

App. LEXIS 284 at *15; Brewer v. State, 572 S.W.2d 719, 723 (Tex. Crim. App. 1978)

(“Where the Court has the necessary data and evidence before it for reformation, the

judgment may be reformed on appeal.”).

Thank you,

/s/ Michael J. West Michael West Asst. Criminal District Attorney Bar I.D. No. 21203300 100 N. Broadway, 4th Fl. Tyler, Texas 75702 (903) 590-1720 (903) 590-1719 mwest@smith-county.com

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the pertinent sections of the State’s Letter

Brief in the above numbered cause contain 502 words, an amount which complies with

Texas Rule of Appellate Procedure 9.4.

/s/ Michael J. West Michael J. West Asst. Criminal District Attorney Bar I.D. No. 21203300

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 1st day of December, 2017, the following have been completed:

(1) The original of the State’s Letter Brief in Response to Appellant’s Brief in the above numbered cause has been electronically filed with the Clerk of the Court of Twelfth Court of Appeals.

(2) A legible copy of the State’s Response to Appellant's Brief in the above numbered cause has been sent by electronic filing to:

Mr. Austin Jackson Attorney at Law 305 S. Broadway, Ste. 700 Tyler, Texas 75702 JlawAppeals@gmail.com

/s/ Michael J. West Michael J. West Asst. Criminal District Attorney Bar I.D. No. 21203300 100 N. Broadway, 4th Fl. Tyler, Texas 75702 (903) 590-1720 (903) 590-1719