Tio Jackson v. the State of Texas

Court of Appeals of Texas

Tio Jackson v. the State of Texas

Court of Appeals of Texas·Decided October 20, 2021·No. 10-17-00333-CR·Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00333-CR No. 10-17-00334-CR

TIO JACKSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Hamilton County, Texas Trial Court Nos. CR08282 and CR08283

MEMORANDUM OPINION ON REMAND 1

In 2017, Tio Jackson entered open pleas of guilty to two offenses: (1) theft of a

firearm, in Trial Court Number CR08282; and (2) aggravated assault with a deadly

weapon, in Trial Court Number CR08283. The trial court sentenced Jackson to ten years

1 Our original memorandum opinion in these cases was delivered on February 19, 2020. Jackson v. State, Nos. 10-17-00333-CR and 10-17-00334-CR, 2020 Tex. App. LEXIS 1349 (Tex. App.—Waco Feb. 8, 2020). In light of the Court of Criminal Appeals’ opinion in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021), the Court vacated our judgments on May 12, 2021 and remanded them to us for proceedings consistent with its opinion. in prison in Trial Court Number CR08282 (appellate case number 10-17-00333-CR) and to

twenty-five years in prison in Trial Court Number CR08283 (appellate case number 10-

17-00334-CR). The sentences were ordered to be served concurrently.

The trial court additionally imposed court costs in both cases—$249 in Trial Court

Number CR08282 (appellate case number 10-17-00333-CR) and $299 in Trial Court

Number CR08283 (appellate case number 10-17-00334-CR). Sentence was imposed in

both cases on July 19, 2017, but the bill of costs for each case was not prepared until

December 17, 2017. Jackson’s appeals primarily challenge the court costs imposed in both

cases.

Because there are errors in the trial court’s judgments, we modify the judgments

in both cases to reflect the appropriate amount of costs to be assessed Jackson and to

correct clerical errors found in both judgments. The judgments are affirmed as modified.

Issues

In his first issue, Jackson contests the facial constitutionality of some of the court

costs imposed as part of his sentence because the costs, he argues, violate the separation

of powers provision of the Texas Constitution. In his second issue, Jackson asserts that

the trial court erred in imposing costs in both convictions because he was convicted of

both offenses in a single criminal action. The State does not challenge the timing or

propriety of Jackson’s appeal of the assessed costs. 2

2 A defendant may raise an objection to the assessment of court costs for the first time on appeal when the costs are not imposed in open court and the judgment does not contain an itemization of the imposed court costs, as in this case. London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).

Jackson v. State Page 2 In his third issue, Jackson argues that the judgments erroneously note there were

plea bargain agreements in each case.

Because Jackson’s arguments regarding the constitutionality of certain costs

implemented will be affected in at least one conviction by Jackson’s second issue, we

discuss Jackson’s second issue, first.

Discussion

A. Costs Assessed in both Convictions

The State concedes that the judgments in both cases should be reformed to reflect

that costs are assessed in only one case. We agree that costs should have been assessed

in either Trial Court Number CR08282 or Trial Court Number CR08283, but not both. See

Hurlburt v. State, 506 S.W.3d 199, 203-204 (Tex. App.—Waco 2016, no pet.). Accordingly,

Jackson’s second issue is sustained, and we modify the judgment in Trial Court Number

CR08282 (appellant case number 10-17-00333-CR) to delete the assessed court costs in the

amount of $249. See id. at 204.

B. Costs Challenged 3

In his first issue, Jackson specifically challenges the following assessed costs:

1. a $40 “criminal basic clerk fee,” authorized under former article 102.005(a) of the Code of Criminal Procedure;

2. a $4 “criminal juror reimbursement fund” fee, authorized under former article 102.0045(a) of the Code of Criminal Procedure;

3Because of our disposition of Jackson’s second issue, the disposition of Jackson’s first issue will only affect Trial Court Number CR08283 (appellate case number 10-17-00334-CR).

Jackson v. State Page 3 3. a $2 “criminal indigent defense fund” fee, authorized under former section 133.107 of the Local Government Code; and

4. a $25 “time payment” fee, authorized under former section 133.103(a)(1)-(2) of the Local Government Code. 4

1. Standard of Review and Applicable Law

Whether a statute is facially constitutional is a question of law that we review de

novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When considering a statute's

constitutionality, we begin with the presumption that the statute is valid. Allen v. State,

614 S.W.3d 736, 740 (Tex. Crim. App. 2019). The party challenging the constitutionality

of a statute bears the burden of establishing its unconstitutionality. Peraza v. State, 467

S.W.3d 508, 514 (Tex. Crim. App. 2015).

With the statute's presumed constitutionality, Jackson already faces a high burden.

See Allen, 614 S.W.3d at 740. But because Jackson has launched a facial challenge, he bears

an even greater burden. See id. “A facial challenge is an attack on a statute itself as

opposed to a particular application.” City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct.

2443, 2449, 192 L.Ed.2d 435 (2015). To prevail on a facial challenge, a party must establish

that the statute always operates unconstitutionally in all possible circumstances. State v.

Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). Thus, if there is any possible

constitutional application of the statute, a party’s facial challenge fails. Peraza, 467 S.W.3d

at 515-16. Given this high burden, a facial challenge is “the most difficult challenge to

4 Effective January 1, 2020, each of the provisions supporting the specific costs challenged by Jackson were either repealed or relocated. See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. Ch. 1352. The legislative changes to all the provisions apply only to a cost, fee, or fine assessed on a conviction for an offense committed on or after the effective date of the Act. Id. at § 5.01. Because the offense in this case was committed well before January 1, 2020, the former provisions apply. Id.

Jackson v. State Page 4 mount successfully.” Allen, 614 S.W.3d at 741 (quoting United States v. Salerno, 481 U.S.

739, 745, 107 S. Ct. 2095, 95 L.Ed.2d 697 (1987)).

In this case, Jackson’s facial challenges are grounded in the separation of powers

provision of the Texas Constitution. TEX. CONST. art. II, § 1. This provision prohibits one

branch of government from assuming or delegating a power more properly attached to

another branch. See TEX. CONST. art. II, § 1; Ex parte Lo, 424 S.W.3d at 28. As it pertains to

this case, if a statute contains a provision by which courts are turned into "tax collectors,"

as Jackson alleges, then the effect of the statute is to delegate to courts a power more

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