PD-0312-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/22/2015 11:28:03 PM Accepted 5/26/2015 10:44:55 AM ABEL ACOSTA TO THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
PD-0312-15 _________________________________
ROBERT S. SHEARER, Appellant v. THE STATE OF TEXAS, Appellee
_________________________________
PETITION FOR DISCRETIONARY REVIEW _________________________________________________________
On Petition for Discretionary Review from the Court of Appeals for the Tenth District, Waco, Texas in Cause No. 10-14-00031-CR, dismissing Appellant’s appeal from the County Criminal Court No. 2 of Brazos County, Texas, Cause No. 5054-A.. _________________________________________________________
R. Scott Shearer TBA No. 00786464 917 Franklin, Suite 320 Houston, Texas 77002 May 26, 2015 (713) 254-5629 (713) 224-2889 FAX ShearerLegal@Yahoo.com
Appellant
May 22, 2015
1 SUBJECT INDEX Page
List of Authorities...................................................................................... 4
Names of All Parties.................................................................................. 5
Statement Regarding Oral Argument........................................................... 6
Statement of the Case................................................................................ 8
Statement of the Procedural History of the Case......................................... 9
Question for Review Number One............................................................... 10
QUESTION FOR REVIEW NUMBER ONE: Did the panel of the court of appeals err by applying an incorrect standard of review regarding the punitive nature of the assessment ordered paid in this case?
(Op. at 2)
Reasons for Review................................................................................... 10
Question for Review Number Two.............................................................. 11
QUESTION FOR REVIEW NUMBER TWO: Did the court of appeals deprive Appellant of Due Process and Equal Protection of the law by holding that it had no jurisdiction to decide this appeal?
Reasons for Review................................................................................... 15
Argument and Authorities.......................................................................... 16
Question for Review Number Three............................................................. 20
2 QUESTION FOR REVIEW NUMBER THREE: Is the term “fine imposed” that is contained within the statute conveying jurisdiction in a court of appeals of this State sufficiently broad to include sums ordered paid as a “special expense”?
(Op. at 2) Reasons for Review................................................................................... 20
Argument and Authorities.......................................................................... 21
Prayer for Relief…………………………………………………………. 22
Certificate of Service…………………………………………………….. 23
Certificate of Compliance……………………………………………….. 24
Appendix………………………………………………………………… 25
3 LIST OF AUTHORITIES
Page
CASES
Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966)............................. 10, 13, 15, 18
Griffin v. Illinois, 351 U.S. 12, 18 (1956) ....................................... 10, 14, 15, 19, 20
Rinaldi v. Yeager, 384 U.S. 305 (1966) ................................................ 10, 13, 15, 19
Weir v. State, 278 S.W.3d 364 (Tex. Cr. App. 2009) ....................................... 13, 18
STATUTES
TEX. CRIM. PROC. CODE ANN. art. 4.03 ....................................................................11
TEX. CRIM. PROC. CODE ANN. art. 45.051 ................................................................12
RULES
TEX. R. APP. PROC. 38.1(a) .........................................................................................5
4 NAMES OF ALL PARTIES
In accordance with TEX. R. APP. PROC. 38.1(a), Appellant submits that the following are interested parties:
R. Scott Shearer - Appellant.
917 Franklin, Suite 320 Houston, TX 77002
Rodney W. Anderson - Trial counsel for the State of Texas.
Brazos County Attorney’s Office 300 East 26th Street, Suite 1300 Bryan, Texas 77803
Spencer R. Giles- Appellate counsel for the State of Texas.
Brazos County Attorney’s Office 300 East 26th Street, Suite 1300 Bryan, Texas 77803
Hon. James W. Locke - Presiding judge of the Trial Court.
300 E. 26th St., Suite 214 Bryan, TX 77803
5 STATEMENT REGARDING ORAL ARGUMENT
Appellant believes oral argument will be helpful. Appellant requests oral
argument.
6 TO THE COURT OF CRIMINAL APPEALS OF TEXAS
PETITION FOR DISCRETIONARY REVIEW _________________________________________________________
On Petition for Discretionary Review from the Court of Appeals for the Tenth District, Waco, Texas in Cause No. 10-14-00031-CR, dismissing Appellant’s appeal from the County Criminal Court No. 2 of Brazos County, Texas, Cause No. 5054-A.. _________________________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
APPELLANT, ROBERT S. SHEARER, files this Petition for
Discretionary Review. In support of his request for review, Appellant would
respectfully show the Court the following:
7 STATEMENT OF THE CASE
This appeal stems from Appellant’s conviction in State of Texas v. Robert S.
Shearer for the offense of speeding. The case was originally filed in a justice of
the peace court and then appealed de novo to County Court at Law No. 2. On
December 19, 2013, the trial court assessed punishment at six months deferred
adjudication probation a $200.00 special expense fee and $204.10 in court costs.
(Appendix 1). The Appellant perfected his appeal when he filed a timely notice on
January 30, 2014. This Court dismissed Appellant’s appeal in a memorandum
opinion dated January 15, 2015. (Appendix 2). Appellant filed a timely motion
for rehearing, which was overruled on February 19, 2015.
___________________________________________________________ * The record on petition for discretionary review is cited as follows:
Op. at p .......... Opinion at page p.
8 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
In an UNPUBLISHED opinion delivered January 15, 2015, a panel of the
Tenth Court of Appeals DISMISSED Appellant’s appeal from the County Court
No. 2 of Brazos County, Texas. The Appellant filed a motion for rehearing, which
was overruled on February 19, 2015. The Appellant’s Petition for Discretionary
Review was due on March 17, 2015. Appellant filed a Motion for Extension of
Time to File Petition for Discretionary Review, which was granted. Appellant’s
Petition for Discretionary Review is due May 22, 2015.
9 GROUNDS FOR REVIEW
QUESTION FOR REVIEW NUMBER ONE: Did the panel of the court of appeals err by applying an incorrect standard of review regarding the punitive nature of the assessment ordered paid in this case?
Reasons for Review:
1. The panel decision of the Tenth Court of Appeals requires review because the court decided an important question of state law that that is in conflict with the applicable decisions of the United States Supreme Court. The panel decision is in conflict with the Supreme Court’s decisions in Griffin v. Illinois, 351 U.S. 12, 18 (1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); and Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966).
2. The panel decision of the First Court of Appeals requires review because the court has misconstrued TEX. CRIM. PROC. CODE Ann. articles 4.03 and 45.051.
3. The panel decision of the Court of Appeals requires review because the court of appeals has decided an important question of state law, which has not been, but should be settled by this Court.
4. The panel decision of the Court of Appeals requires review because the court of appeals has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s powers of supervision.
10 Argument and Authorities:
In its opinion of January 15, 2015, Appellant submits the panel fell into error
when it misapplied and misconstrued TEX. CRIM. PROC. CODE ANN. articles 4.03
and 45.051. Article 4.03 provides as follows:
Article 4.03. Courts Of Appeals The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed or affirmed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
TEX. CRIM. PROC. CODE ANN. art. 4.03 (West Supp. 2014)(emphasis added)
The judgment in this case indicates that Appellant was assessed a two-
hundred dollar [$200.00] “Special Expense”. Special expenses are governed by
Article 45.051 of the Texas Code of Criminal Procedure. Article 45.051 provides,
in pertinent part, as follows:
11 Article 45.051. Suspension Of Sentence And Deferral Of Final Disposition (a) On a plea of guilty or nolo contendere by a defendant or on a finding of guilt in a misdemeanor case punishable by fine only and payment of all court costs, the judge may defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period not to exceed 180 days. In issuing the order of deferral, the judge may impose a special expense fee on the defendant in an amount not to exceed the amount of the fine that could be imposed on the defendant as punishment for the offense. The special expense fee may be collected at any time before the date on which the period of probation ends. The judge may elect not to impose the special expense fee for good cause shown by the defendant. If the judge orders the collection of a special expense fee, the judge shall require that the amount of the special expense fee be credited toward the payment of the amount of the fine imposed by the judge.
TEX. CRIM. PROC. CODE ANN. art. 45.051. (emphasis added).
Appellant was sentenced to a “special expense” in the amount of $200.00
and not to any term of probation. Article 45.051 plainly states that any such
“special expense” be credited toward the fine. Id.
The United States Supreme Court has held that it is the nature of the
deprivation that controls, not the label that the State chooses to give it:
Both liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by the simple label a State chooses to fasten upon its conduct or its statute.
12 Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).
In the present case, Appellant was ordered deprived of $200.00 as a “special
expense”, which was in reality a fine. Furthermore, a “special expense” that has
been imposed is required to offset a fine under Article 45.051. This clearly
indicates the punitive nature of the $200.00 assessment and distinguishes it from a
court cost. See Weir v. State, 278 S.W.3d 364, 402 n. 5 (Tex. Cr. App. 2009)
(“This could be read as an indication that the Legislature has intended to treat fines
and costs similarly for sentencing purposes. We decline to so construe Article
42.15, instead construing it as treating fines and costs similarly only in terms of
where they are to be paid.”).
Regardless of the label, Appellant was ordered to pay a punitive assessment
in an amount greater than $100.00. The court of appeals, therefore, had
jurisdiction over Appellant’s appeal from county court and the panel erred by
dismissing this appeal. Refusing Appellant the right of appellate review in this
circumstance deprives him of both Due Process of Law and Equal Protection of the
Law under the United States Constitution. See Rinaldi v. Yeager, 384 U.S. 305,
310 (1966) (“This Court has never held that the States are required to establish
avenues of appellate review, but it is now fundamental that, once established, these
13 avenues must be kept free of unreasoned distinctions that can only impede open
and equal access to the courts”); Griffin v. Illinois, 351 U.S. 12, 18 (1956).
14 QUESTION FOR REVIEW NUMBER TWO: Did the court of appeals deprive Appellant of Due Process and Equal Protection of the law by holding that it had no jurisdiction to decide this appeal?
1. The panel decision of the Tenth Court of Appeals requires review because the court decided an important question of state law that that is in conflict with the applicable decisions of the United States Supreme Court. The panel decision is in conflict with the Supreme Court’s decisions in Griffin v. Illinois, 351 U.S. 12, 18 (1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); and Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966).
2. The panel decision of the First Court of Appeals requires review because the court has misconstrued TEX. CRIM. PROC. CODE Ann. articles 4.03 and 45.051.
3. The panel decision of the Court of Appeals requires review because the court of appeals has decided an important question of state law, which has not been, but should be settled by this Court.
4. The panel decision of the Court of Appeals requires review because the court of appeals has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s powers of supervision.
15 Argument and Authorities:
In its opinion of January 15, 2015, Appellant submits the panel fell into error
when it dismissed Appellant’s appeal under TEX. CRIM. PROC. CODE ANN. articles
4.03 and 45.051. Article 4.03 provides as follows:
Article 4.03. Courts Of Appeals The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed or affirmed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.
TEX. CRIM. PROC. CODE ANN. art. 4.03 (West Supp. 2014)(emphasis added)
The judgment in this case indicates that Appellant was assessed a two-
hundred dollar [$200.00] “Special Expense”. Special expenses are governed by
Article 45.051 of the Texas Code of Criminal Procedure. Article 45.051 provides,
16 Article 45.051. Suspension Of Sentence And Deferral Of Final Disposition (a) On a plea of guilty or nolo contendere by a defendant or on a finding of guilt in a misdemeanor case punishable by fine only and payment of all court costs, the judge may defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period not to exceed 180 days. In issuing the order of deferral, the judge may impose a special expense fee on the defendant in an amount not to exceed the amount of the fine that could be imposed on the defendant as punishment for the offense. The special expense fee may be collected at any time before the date on which the period of probation ends. The judge may elect not to impose the special expense fee for good cause shown by the defendant. If the judge orders the collection of a special expense fee, the judge shall require that the amount of the special expense fee be credited toward the payment of the amount of the fine imposed by the judge.
Appellant was sentenced to a “special expense” in the amount of $200.00
and not to any term of probation. Article 45.051 plainly states that any such
The United States Supreme Court has held that it is the nature of the
deprivation that controls, not the label that the State chooses to give it:
Both liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by
17 the simple label a State chooses to fasten upon its conduct or its statute.
Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).
In the present case, Appellant was ordered deprived of $200.00 as a “special
expense”, which was in reality a fine. Furthermore, a “special expense” that has
been imposed is required to offset a fine under Article 45.051. This clearly
indicates the punitive nature of the $200.00 assessment and distinguishes it from a
court cost. See Weir v. State, 278 S.W.3d 364, 402 n. 5 (Tex. Cr. App. 2009)
(“This could be read as an indication that the Legislature has intended to treat fines
and costs similarly for sentencing purposes. We decline to so construe Article
42.15, instead construing it as treating fines and costs similarly only in terms of
Regardless of the label, Appellant was ordered to pay a punitive assessment
in an amount greater than $100.00. The court of appeals, therefore, had
jurisdiction over Appellant’s appeal from county court and the panel erred by
dismissing this appeal. Refusing Appellant the right of appellate review in this
circumstance deprives him of both Due Process of Law and Equal Protection of the
Law under the United States Constitution. See Rinaldi v. Yeager, 384 U.S. 305,
310 (1966) (“This Court has never held that the States are required to establish
18 avenues of appellate review, but it is now fundamental that, once established, these
avenues must be kept free of unreasoned distinctions that can only impede open
and equal access to the courts”); Griffin v. Illinois, 351 U.S. 12, 18 (1956).
19 QUESTION FOR REVIEW NUMBER THREE: Is the term “fine imposed” that is contained within the statute conveying jurisdiction in a court of appeals of this State sufficiently broad to include sums ordered paid as a “special expense”?
1. The panel decision of the Tenth Court of Appeals requires review because the court decided an important question of state law that that is in conflict with the applicable decisions of the United States Supreme Court. The panel decision is in conflict with the Supreme Court’s decisions in Griffin v. Illinois, 351 U.S. 12, 18 (1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); and Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966).
2. The panel decision of the First Court of Appeals requires review because the court has misconstrued TEX. CRIM. PROC. CODE Ann. articles 4.03 and 45.051.
3. The panel decision of the Court of Appeals requires review because the court of appeals has decided an important question of state law, which has not been, but should be settled by this Court.
4. The panel decision of the Court of Appeals requires review because the court of appeals has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s powers of supervision.
20 Argument and Authorities:
The term “fine imposed” contained within article 4.04 of the code of
criminal procedures is sufficiently panoptic to include those monies required to be
paid as a “special expense” under article 45.051 of the code of criminal procedure.
Evidence of this construction is supported by the fact that the statute itself requires
that any such “special expense” be credited toward the fine. Additionally, the
statute conveying jurisdiction upon the court of appeals for cases involving fines
exceeding $100.00 has been on the books since 1965. It is likely that this
jurisdictional language predates the term “special expense” found within Article
45.051 by decades.
21 PRAYER FOR RELIEF
FOR THESE REASONS, Appellant respectfully asks this Court to grant review of the decision of the court of appeals. Appellant further prays that this Court will reverse the judgment of the court of appeals.
Respectfully submitted,
By: /s/ R. SCOTT SHEARER R. Scott Shearer TBA No. 00786464 917 Franklin, Suite 320 Houston, Texas 77002 (713) 254-5629 (713) 224-2889 FAX ShearerLegal@Yahoo.com
Attorney for Appellant
22 CERTIFICATE OF SERVICE
I certify that a copy of this Petition for Discretionary Review has been served upon the State of Texas by e-mailing a copy of same to the following parties at their respective addresses on this the 22nd day of May, 2015:
BRAZOS COUNTY ATTORNEY’S OFFICE 300 E. 26TH STREET, SUITE 1300 BRYAN, TX 77803
/s/ R. SCOTT SHEARER R. Scott Shearer
23 CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)
Certificate of Compliance with Type-Volume Limitations and Typeface Requirements.
1. This Petition for Discretionary Review complies with the type-volume limitation of TEX. R. APP. PROC. 9.4(i)(2)(D) and (3) because:
This Petition for Discretionary Review contains 2,307 words, excluding the parts of the Petition for Discretionary Review exempted by TEX. R. APP. PROC. 9.4(i)(1).
2. This Petition for Discretionary Review complies with the typeface requirements of TEX. R. APP. PROC. 9.4(e) because:
this Petition for Discretionary Review has been prepared in a conventional proportionally spaced typeface using Microsoft WORD 97 version 7.0 in Times New Roman 14 point type.
/s/R. SCOTT SHEARER R. Scott Shearer
24 APPENDIX 1
25 APPENDIX 2
26 IN THE TENTH COURT OF APPEALS
No. 10-14-00031-CR
ROBERT SCOTT SHEARER, Appellant v.
THE STATE OF TEXAS, Appellee
From the County Court at Law No. 2 Brazos County, Texas Trial Court No. 5054-A
MEMORANDUM OPINION
In this matter, appellant, Robert Scott Shearer, appeals a County Court at Law
judgment in a trial de novo pertaining to a speeding ticket. In a letter dated December
17, 2014, this Court questioned its jurisdiction in this case, especially considering that
theunderlying judgment did not appear to impose a fine or affirm a fine in excess of
$100. See TEX. CODE CRIM. PROC. ANN. art. 4.03 (West Supp. 2014). We warned
appellant that this appeal would be dismissed unless a response was filed within seven
days of our December 17, 2014 letter adequately explaining why this Court has jurisdiction over this appeal. To date, appellant has not responded to our December 17,
2014 letter.1
Under these circumstances, we conclude that the record demonstrates that
appellant does not intend to pursue this appeal. Therefore, under our inherent
authority, we dismiss this cause for want of prosecution. See Ealy v. State, 222 S.W.3d
744, 745 (Tex. App.—Waco 2007, no pet.) (citing Peralta v. State, 82 S.W.3d 724, 725-26
(Tex. App.—Waco 2002, no pet.)); see also Evans v. State, No. 10-09-00251-CR, 2010 Tex.
App. LEXIS 546, at *3 (Tex. App.—Waco Jan. 27, 2010, no pet.) (mem. op., not
designated for publication). This cause is hereby dismissed.2
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Dismissed Opinion delivered and filed January 15, 2015 Do not publish [CR25]
1In fact, throughout the process, appellant has only filed one thing with this Court—a motion for extension of time to file a late brief that has not yet been filed.
2 A motion for rehearing may be filed within 15 days after the judgment or order of this Court is rendered. See TEX. R. APP. P. 49.1. If appellant desires to have the decision of this Court reviewed by filing a petition for discretionary review, that petition must be filed in the Court of Criminal Appeals within 30 days after either the day the court of appeals’ judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals. See id. at R. 68.2(a).
Shearer v. State Page 2 Shearer v. State Page 3