Francisco Martinez Sanchez, Jr. v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00147-CR

FRANCISCO MARTINEZ SANCHEZ, JR., Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 16-01118-CRF-272

OPINION

In one issue, Appellant Francisco Martinez Sanchez, Jr. challenges the punishment

assessed in connection with his conviction for three separate felony offenses: (1) burglary

of a vehicle; and (2) two counts of theft of less than $2,500. Sanchez additionally entered

pleas of “true” to two enhancements. The trial court imposed a sentence of six years on

each count, to be served concurrently.

Sanchez argues that $133.00 of the costs assessed against him should be vacated

because the statute under which they were imposed has been held unconstitutional by the Texas Court of Criminal Appeals. See Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App.

2017). Specifically, Sanchez challenges those portions of the costs that were assessed

under §§ 133.102(e)(1) and (e)(6) of the Local Government Code that relate to “abused

children’s counseling” and “comprehensive rehabilitation.” TEX. LOC. GOV. CODE ANN.

§§ 133.102(e)(1) and (e)(6). The State concedes error, noting that these sections have been

declared unconstitutional by Salinas. The State argues, however, that Salinas does not

apply to Sanchez because the Court of Criminal Appeals directed that it have only limited

retroactive effect.

The Court of Criminal Appeals held in Salinas:

[W]e will also apply our constitutional holding in this case to any defendant who has raised the appropriate claim in a petition for discretionary review before the date of this opinion, if that petition is still pending on the date of this opinion and if the claim would otherwise be properly before us on discretionary review. Otherwise, our holding will apply prospectively to trials that end after the date the mandate in the present case issues.

Salinas, 523 S.W.3d at 113. Mandate issued in Salinas on June 30, 2017. See Salinas v. State,

No. PD-0170-16 (Tex. Crim. App. June 30, 2017) (mandate).

Sanchez’s sentences were imposed on April 13, 2017, and the judgments were

signed by the presiding judge on April 26, 2017. The bill of costs that imposed the

challenged $133.00 fee was filed on April 28, 2017.

Because no petition for discretionary review is pending on Sanchez’s claim and

the proceedings in the trial court ended prior to issuance of the mandate in Salinas, the

court’s holding in that case does not apply. See also Hawkins v. State, 551 S.W.3d 764, 767

(Tex. App.—Fort Worth 2017, pet. ref’d); Hernandez-Valdez v. State, No. 12-17-00136-CR,

Sanchez v. State Page 2 at *1 (Tex. App.—Tyler Mar. 15, 2018, no pet.) (mem. op., not designated for publication);

James v. State, No. 05-16-01313-CR, 2017 WL 4944877, at *1 (Tex. App.—Dallas Nov. 1,

2017, no pet.) (mem. op., not designated for publication); Love v. State, No. 08-17-00030-

CR, 2017 WL 4675614, at *2 (Tex. App.—El Paso Oct. 18, 2017, pet. ref’d) (mem. op., not

designated for publication); Garrett v. State, No. 03-17-00030-CR, 2017 WL 3897270, at *2

(Tex. App.—Austin Aug. 25, 2017, no pet.) (mem. op., not designated for publication);

Austin v. State, No. 06-16-00135-CR, 2017 WL 2265679, at *3 (Tex. App.—Texarkana May

24, 2017, pet. ref’d) (mem. op., not designated for publication).

Sanchez argues that we reject the holding in Salinas regarding retroactivity.

However, as an intermediate court, we must follow the majority holding in that case.

Villarreal v. State, 504 S.W.3d 494, 509 (Tex. App.—Corpus Christi 2016, pet. ref’d); see also

Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

We overrule Sanchez’s sole issue and affirm the judgments of the trial court.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill (Chief Justice Gray dissenting with opinion) Affirmed Opinion delivered and filed August 28, 2019 Publish [CR25]

Sanchez v. State Page 3