## NO. 12

- 21

- 00060

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

BILLY TREMAYNE CASEL , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPE AL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORAND UM OPINION Billy Tremayne Casel appeal s his conviction for driving while intoxicated, third or more. He presents six issues on appeal. We modify and affirm as modified.

B ACKGROUN D Appellant was indicted for driving while intoxicated, third or more, alleged to have been
committed on M arch 2 , 2019 in Smith County, Texas. 1 It was further alleged in the indictment that Appellant had previously been convicted of two prior felonies un der the habitual offender

statute. 2 Appellant pleaded “not guilty,” and the matter proceeded to a jury t rial. T he jury found Appellant “guilty” as charged. Appellant elected to have the trial court assess punishment. At the punishment phase of trial, A ppellant pleaded “true” to the enhancement paragraphs. The
State filed a motion to cumulate Appellant’s sentence with his twenty

- year sentence for evading

arrest that arose from the same incident. At the conclusion of the punishment phase, the trial

cour t assessed punishment at fifty

- years imprisonment . The trial court also granted the State’s
motion to cum ulate s e ntences. This appeal followed.

1 See T EX

. P ENAL C ODE A NN

. § 49.09(b) (West Supp. 2021 ).

2 See id . § 12.42 (d ) (West 2019 ).2 S UFFICIENCY OF THE E VIDENCE In his first issue, Appellant contends the evidence is insufficient to support h is conviction. Specifically, he urges the State failed to prove that he was operating the vehicle in quest ion an d that he was intoxicated at the time of the alleged operation. Standard of Review and Applicable Law When reviewing the sufficiency of the evi dence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational f a ct finder could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Bohannan v. State , 546 S.W.3d 166, 178 (Tex. Crim. App. 2017). The jurors ar e t he exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State , 270 S.W.3d 147, 150 (Tex. Crim. App. 2008) ; see Adames v. State , 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (stating that role of fact finder is
“as the so le j udge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence”). The jury, as the sole ju dge of credibility, may accept on e version of the facts and reject another, and it may reject any part of a witness ’ s t estim ony. Rivera v. State , 507 S.W.3d 844, 853 (Tex. App.

— Houston [1st Dist.] 2016, pet. ref ’ d); see Bohannan , 546 S.W.3d at 178 (statin g that fact finder has duty to res olve conflicts in testimony, to weigh evidence, and to draw reasonable inferences fro m basi c facts to ultimate facts). We may not re

- evaluate the weight and credibility of the evidence or substitute our judgment for that o f the fact finder. Bohannan , 546 S .W.3d at 178; Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We res olve any inconsistences in the evidence in
favor of the verdict. Bohannan , 546 S.W.3d at 178; see also Murray v. State , 457 S.W.3d 446,
4 48

– 49 (Tex. Crim. App. 2015) (“When the record supports conflicting inferences, we presume
that the factfinder resolved the con flicts in favor of the verdict, and we defer to that determination.”). A criminal conviction may be based on circumstantial evid ence. Merritt v.
State , 368 S.W.3d 51 6, 525 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as
direct evidence i n establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Temple v. State , 390 S.W.3d 341 , 359 (Tex. Crim. App. 2013) (quoting Ho oper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “Each fact need not p oint directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is suffic ient to support the conviction.” Ho oper , 214 S.W.3d at 13.3 T o satisfy the elements of DWI, the State was require d to prove tha t Appellant operated a motor vehicle in a public place while intoxicated. See T EX

. P ENAL C ODE A NN

. § 49.04(a) (West Supp. 2021 )

. “Intoxicated” is defined as “(A) not having the normal use of mental or physical faculties by reason of the int roduction of alc ohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substanc e into the body; or (B) having an a lcohol concentration of 0.08 or more.” Id

. § 49.01(2) (West 2011 )

. For the

e vidence to be suf ficient to support a conviction for DWI, a “temporal link” must exist between
the defendant ’ s intoxication and his drivi ng. K uciemba v. State , 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). This temporal link may be established by circumsta ntial evidence. Id

. (noting that circumstantial evidence is as probative as direct evidence in establishing guilt).
Evidence at Trial
Of ficer Gregory McCullough of the Tyler Police Department testified that he responded

to a welfare c all by a concerned ci tizen regarding a po ssible intoxicated driver

. W hen he arrived, Officer McCullough observed the suspected vehicle in the parking lot , a red Do dge Charger.
The vehicle ’s driver back ed up and mov ed forward several times , as if trying to get into a parking spot appropriately

. According to McCullough, the vehicle moved approximately “a foot
and a half” back and forward each time even though the v ehicle was already lined up with the parking spot

. Appellant then exited the driver’s seat

. McCullough’s dash cam video , which was admitted into evidence, depicted the vehicle moving in the parking spot. The video also showed Appellant

. While se veral feet from the vehicle, McC ullough smell ed alcohol coming from the
vehicle

. When making contact with Appellant, a struggle ensued a fter Appellant resisted arrest and refused to comply with officer requests. During the struggle, McCullough smelled

m arijuana on Appellant. According to Officer McCullough, no field sobriety tests were performed because Appellant had fal len to the ground d uring the struggle . The officers wanted
to make sure Appellant was not injured . Appellant was evaluated by emergen cy medic al personnel. McCullough explained that field sobriety test results would be invalid if Appellant
suffered some sort of injury

. Of ficer McCullough testified that there was damage to the front right of Appellant’s vehicle , consistent with striking a curb or involvement in some sort of
accident . During the search of the vehicle, officers found an open bottle of beer . They also4 found a baggie of marijuana in Appellant’s sweater

. The officers asked for a blood sample at th e hospital , and Appellant refused

. Therefore, they obtained a warrant for a blood draw

. Officer David Russ of the Tyler Police Department testifie d that he was dispa tched to Family Dollar on Loop 323 on March 2, 2019 . The call was initially in response t o a suspicious
vehicle tha t was in volved in a minor crash in a parking lot . He believe d the vehicle had struck a
curb . According to Officer Russ, the 911 caller sai d the vehicle had been stuck in a ditch, and
the caller saw open containers in the vehicle and smelled marijuana . W hen he a rrived on scene,
Officer Russ noted “fresh front end damage” on the car

. He further observed the vehicle in
moti on, as if it was att empting to back into a parking spot . A ppellant then stepped out of the
driver’s seat of t he vehicle . According to Officer Russ, A ppellant smelled like alcohol

. Appellant was transported to the hospital where he was examined for injur ies. When Appellant
refused to provide a blood sample , Officer Russ began the process of obtaining a blood sample

warrant and complete d a probable caus e affidavit. A judge signed the warrant approximately

two hours after the initial dispatch call . A ppellant cont inued to be un cooper ative at the hospital
even after the warrant ’s issuance . A nurse with t he Smith County Sheriff’s Office w as eventually abl e to obtain the blood draw approximately four hours after initial dispatch

. A recording of the 911 call was adm itted into evidence and played for the jury. According to the caller, a red Charger skidded off the roadway into the ditch an d pulled into the Family Dollar parking lot . The caller reported open containers in the car and stated that the driver appear ed i ntoxicated . The call er further claimed that the driver smell ed like what he
believe d to be m arijuana

. The caller stated that h e was no longer i n the parking lot because the
driver cursed at him

. Therefore, he called authorities and left

. The caller did no t testify at trial.
Karen Shumate of the Tyler crime lab testified that the blood draw requested analysis for
alcohol and vola tiles content . S he further testified that she began the analysis on May 3, 2019

. The test result showed blood alcohol concentrat ion of 0.160 . The s tandard for intoxication in
Texas is 0.08

. Operating a Motor Vehicl e Appellant argues the State failed to prove he was oper ating a vehicle. The Penal Code does not define “operate” or “operating.” To assess the sufficiency of the evid ence to support this element of the offense of DWI, the Court of Criminal Appeals has defined “operate” as “taking ‘action to affect the functi on of [a] vehicle in a manner that would enable the vehicle ’ s5 use.’” Kirsch v. State , 357 S.W.3d 645, 648 (Tex. Crim. App. 2012) (quot ing Denton v. State , 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)). Courts consider the totality of the ci rcumstances in de termining whether sufficient evidence supports a conclusion that the defendant operated the
vehicle. Denton , 911 S.W.2d at 390; Dansby v. State , 530 S.W.3d 213, 228 (Tex. App.

— Tyler 2017, pet. ref ’ d) (concluding that evidence was sufficien t to support conv iction when officer found unoccupied truck running in restaurant parking lot and defendant, who was inside

restau rant, admitted he had driven vehicle from nearby bar to his house before driving to

res taurant). Courts interpret “operating” a motor vehicle “ very broadly.” Priego v. State , 457 S.W.3d 565, 569 (Tex. App.

— Texarkana 2015, pet. ref ’ d) (quoting Smith v. Sta te , 401 S.W.3d 915, 919 (Tex. App.

— Texarkana 2013, pet. ref ’ d)). “[W]hile driving does i nvolve operation, operation
does not necessarily invol ve driving.” Denton , 911 S.W.2d at 389; Priego , 457 S.W.3d at 569 (stating that “any action that is more than me re preparation toward ope rating the vehicle” falls under definition of “operating” set out in Denton and that “[t]he action ta ken to affect the functioning of the vehicle ‘need not succeed in causing the vehicle to function for the person to be operating i t’”) (quoting Smith , 401 S.W.3d at 919, and Strong v. State , 87 S.W.3d 206, 215 (Tex. App.

— Dallas 2002, pet. ref ’ d), abrogated on other grounds by Pfeiffer v. State , 363 S.W.3d 594 (Tex. Crim. App. 2012)). Courts have therefore upheld DWI convictions in
si tuations in which the def endant was not actually driving the vehicle. Priego , 457 S.W. 3d at
569. Appellant contends the State did not present sufficient evidence that he operated a vehicle in a public place. He contends that “it is not apparent the v ehicle was functional .” He further urges that Officer Russ was unaware how long t he vehicle had been in the parking lot. However , Appellant i gnores the evidence that both Officers Russ and McCullough observed the vehicle being moved in the parking sp ace by Appellant when the y arrived on scene. And this movement was captured by Office r McCullough’s dash cam video. Viewing the evid ence in the l ight most
favorable to the verdict , the jury w as rationally justified in finding, beyond a reasonable doubt,

t hat Appellant operated th e vehicle

. Blood

- Alcohol Test Results Appellant further argu es that the State failed to prove that the bloo d alcohol tes t result was valid for the time period in which appellant was driving because the blood draw occurred6 approxim ately four hours after Ap pellant was arrested, and the State failed to offer evidence of a retrograde extrapolation concerning the bl ood

- alcohol t est results. As stated above, to support a conviction for DWI, a “temporal link” must exist between
the defen dant ’ s intoxication and h is driving. Kuciemba , 310 S.W.3d at 462. The Penal Code
defin es “intoxicated” in two ways: (1) not having t he normal use of mental or physical faculties by reason of the introduction of alcohol, among other things, into the body; or (2) having an
alcohol c oncentration of 0.08 or more. T EX

. P ENAL C ODE A NN

. § 49.01(2); Kirsch v. State , 306 S.W.3d 738, 743 (Tex. Crim. App. 20 10). “The first definition is the ‘impairment’ theory, while the second is the ‘per se’ theory,” and these th eories are not mutually excl usive. Kirsch , 306
S.W.3d at 743. In Kirsch , the Cour t of Criminal Appeals stated that “BAC

- test result s, even absen t expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment in toxication.” Id

. at 745. Howev er, a blood

- alcohol test result, without more, is

not sufficient to prove intoxication at the time of driving. Id

. “There must be other evidence in the record that would support an inference that the defendant was intoxica ted at the time of driving as well as at the time of taking the test.” Id

. “Other evide nce” indicating that a
defendant was intoxic ated at the t ime of driving

— as well as at the time of the blood draw

— includes erratic driving, post

- driving behavior such a s stumbling, swaying, slurring or mu mbling words, inability to perform field sobriety tes ts or follow directions, bloodshot eyes, any
admissions b y the defendant concerning when and how much he had been drinking, “in short, any and all of the usual indicia of intoxication.” Id

. Here, the jur y charge instructed the jury on both theories of into xication

— the impairment theory and the per se theory. O n appeal, A ppellant argues that the blood

- alcohol test results
constituted no evidence of his blood

- alcohol le vel at the time that he was driving hi s vehicle because the blood draw occurred approximate ly four hours after his arrest and the Sta te did not
of fer expert testimony concerning retrograde extrapolation. As the Court of Criminal Appeals
held in Kirsch , ho wever, blood

- alcohol test results “are often highly probative to prove both per se and impai rment intoxication” even when the State d oes not prese nt expert testimony on retrograde extrapolation. See id

. The blood

- alcohol test result by itself is not suff icient to prove
intoxication at the time of driving, but it may be considered along with other indicia of
intoxication. See id

.7 In addition to A ppellant’s blood

- alcohol test result, which reflected Appellant’s blood

alcohol level at the time of the blood draw was 0.160, the State presented other indicia of intoxication. Specifically, the State pr esented the 911 call, in which the cal ler described Appellant’s v ehicle and reported that the driver had driven into a ditch , had open containers in his vehicle, and smelled of marijuana. Upon encounter ing Appellant in the parking lot, both
Officers Russ and McCullough testified that Appellan t smelled of alcohol and marijuana. In addition, they found an open container of beer in his vehicle and a baggie of marij uana in his jacket. Both officers testifi ed that they believed Appellant was intoxicated. See Zill v. State , 355 S.W.3d 778, 785

– 86 (Tex. App.

— H ouston [1st Dist.] 2011, no pet.) (listing factors constituting
evidence of intoxication

— including “slurred sp eech, bloodshot or glassy eyes, unsteady b alance, a ‘staggering gait,’ and the odor of alcohol on the person or on her breath”

— and st ating that “[ t]he testimony of a police officer regarding the defendant ’ s behavior and the officer ’ s opinion
that the defen dant is intoxicated provides sufficient su pport to uphold a jury verdict”).
Because t he blood

- a lcohol test result, even without exper t testimony o n retrograde extrapolation, i s probative of intoxication and t he State presented other evidence indicating tha t
A ppellant was intoxicated at the time he was driving , w e conclude that, when viewing the
evid ence in the light most favorable to th e verdict, a reasonable jury could conclude that
A ppellant was intoxicated at the time that he operated his vehicle. See K ennemur v. State , 280 S.W.3d 305, 314

– 15 (T ex. App.

— Amarillo 2008, pet. ref ’ d) (considering bloo d

- alcohol test result among other fac tors indicati ng intoxication even though blood draw occurred seven hours after defendant was in car accident and stating th at test result “tend[ed] to make it more pr obable
that he was intoxicated at the time of the col lision because [it] provided evidence that he had introduced alcohol into the body prior to the accident” and no evidence in record indicated that
defendant con sumed alcohol after leaving bar or followin g car accident). We overrule Appellant’s first issue.

A DMISSION OF E VIDENCE In his secon d issue, Appe llant argues the trial court abused its discretion in admitting the 911 call into evidence. He urges that port ions of the 911 call constitute hearsay and are irrelevant.8 When the State offered the 911 ca ll into evidence, Appellant’s counse l made the
fo llowing objection:

And, Judge, I will just simply reiterate what I had

– my objections that I made prior, and that would be as to relevance, number one, and any hearsay contents therein that are not within either exemptions or exceptions to t hat rule.

Co unsel, however, failed to identify the specific statements in the recording that were objectionable or ask for a limiting instruction when the trial court overruled his objection. Thus,
even if we assu me that portions of the recording were ina dmissible, ap pellant ’ s objection at trial was insufficiently specific to preserve error for appellate review. 3 See Whitaker v. State , 286 S.W.3d 355, 369 (Tex. Crim. A pp. 2009) ( to preserve complaint on appeal, o bjecting party bears
burden to specificall y point out w hich portions are inadmissible when exhibit contains both admissible and inadmissible evidence); Willover v. St ate , 70 S.W.3d 841, 847 (Tex. Crim. App.
200 2) (explaining that trial court may admit evid ence that contains admissible and inadmiss ible

content and “losing party ... will be made to suffer on appeal the consequences of his insufficiently specific offer or objection”); see also T EX

. R. A PP

. P. 33.1( a) (describing requirements for preservation o f error). Therefore, we overrule Appellan t’s second is sue.

I MPROPER J URY A RGUMENT In his third issue, Appellant argues the State made an impermissible jury argumen t resulting in reversible error. Specific ally, he argues “the prosecutor struck at [Appe llant] over
the shoulders of defense counse l.”
Standard of Review and Applicable Law
We review a claim of improper jury argument for an abuse of discretion. Turner v.
State , No. 12

- 09

- 00264

- CR, 2010 WL 2638146 , at *1 (Tex. App.

— Tyler June 30, 2010, pet. ref ’ d) (mem. op., not designated for publica tion). A tria l court does not abuse its discretion when its decision is within the zone of reasonable disagreement. Id. Fu rther, the trial court ’ s decision will be uph eld on appeal if it is correct on any th eory of law applicable to the case. Id. Jury a rgument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deductions from the eviden ce; (3) answers to arguments of opposing couns el; and

3 We note that Appellant likewise fails to specific ally identify th e inadmissible portions on a ppeal.9 (4) pleas for law enforcement. L andry v. State , 706 S.W.2d 105, 111 (Tex. Cri m. App. 1985),
cert. denied , 479 U.S. 871, 107 S. Ct. 242, 93 L. Ed. 2d 167 (1986). When the State ’ s jury argument excee ds the permissible bounds, it will not constitut e reversible error unless, in light of

t he entire record, the argument is extreme or ma nifestly i mproper, violates a mandatory statute, or injects new facts harmful to the accused in the proceedings. Wesbroo k v. State , 29 S.W.3d 103, 115 (Tex. Crim. App. 2 000). The remarks must have been a willf ul and calculated effort by the State to depr ive an app ellant of a fair and impartial trial. Id. In most instances, an instruction to disregard the remarks will cur e the error. Id. Only offensive or flagrant error wa rrants reversal when there has been an i nstruction to disregard. Id. To preserve error on improper jury argument, a defendant must object to the prosecutor ’ s argument and obtain an adverse ruling. See Archie v. State , 221 S.W.3d 695, 699 (Tex. Crim. App. 2 007). Generally, this requires a timely and specific objection, a request for a n instruct ion to disregard the improper argument, and a motion for mistrial. Se e id. This sequence is not essential, as a request for an instruction to disregard is required onl y if said instruction would
cure the err or. See id. However, a motion for m istrial is an essential prerequisite to preserving the complaint for appeal. See id. Analysis Appellant argues that the prosecutor “struck at [Appellant] over his counsel’s shoulde rs” when he made arguments that insulted defense counsel. Specifically, h e complain s about the following statements:

It ’ s hard to listen to that because what you just heard is every page from t he defense attorney playbook of: My guy is dead to rights, so what do I do now? That ’ s it. Everything. What ’ s the first thing you do? W ell, let ’ s confuse you on the law. For

-- for the defense attorney to say, “ There ’ s nothing about common sense in the jur y c harge, ” do you know what he ’ s telling you? Then don ’ t use y our common sense. Why? Because common sense will find his guy guilty.

And so then w e make this

-- and I ’ ve seen it before

-- this cute little story about, “ Well, we ’ re reasonable people if you h ave a doubt; hence, there ’ s a reasonable doubt. ”

. . . But, ag ain, that is your classic playbook of: My guy is dead to rights, so I ’ ve got to thr ow something out there.

. . .10 And then, right out of the defense attorney playbook which is going to be, “ You k now, I have no problem with the police. ” When the defense star ts with, “ I have no problem with the police,” that means they do.

Appell ant’s tria l counsel failed to object to the argument and failed to move for mistrial. Thus, he failed to preserve his com plaint for appeal

. See id.
But even had Appellant preserved error, any improper argument would be nonconstitutional error subject to a harm ana lysis pursuant to appellate Rule 44.2(b). T EX

. R.
A PP

. P. 44.2(b); Turner , 2010 WL 2638146, at *1. An error t hat does not affect substantial rights must be disregarded. T EX

. R. A PP

. P. 44.2(b). A substantial right is affected when the error
ha s a “ subst antial and injurious effect or influence in determining the jury ’ s verdict.” King v.
State , 953 S.W.2d 266, 27 1 (Tex. Crim. App. 1997). In Mosely v. State , the C ourt of C rimina l
A ppeals considered three factors in evaluating improper arguments: (1) se ver ity of the misconduct (the magnitude of the prejudicial effect of the prosecutor ’ s remarks), (2) measures adopt ed to cure the misconduct (the efficacy of any cautionary instructi on by the judge), and (3) the certainty of conviction absent the mis conduct (t he strength of the evidence supporting the conviction). 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Here, the severity of the alleged misconduct was mild because the comments do not directly accuse the defense attorney of lying, and the comments do not su ggest any evidence was
manufacture d. See id. at 260. At most, the comments indicate the defense may be attemp ting to distort the jury’s view of the evidence through clever argu ment . Such a comment does not inject new facts into the record, and the ju ry is in the position to evaluate the truth of the prosecutor’s
assertions. While no curative action was taken, a s discussed above, the evidence supporting Appellant’s guilt was su bstantial. See id. ; Gibson v. State , No. 12

- 18

- 00314

- CR, 2019 WL
73 73840, at *10 (Tex. App.

— Tyler Dec. 31, 2019, no pet.) (mem. op., not designated for publication)

. Under these circumstan ces, we conclude that the State ’ s argument was not so offensive or flagrant as to render the trial fundamentally unfair. See Mosley , 9 83 S.W.3d at 259;
see also Wesbrook , 29 S.W.3d at 115. We overrule Appellant’s third issue.

C RUEL AND U NUSUAL P UNISHME NT In his fourth issue, Appellant contends that the fifty

- year sente nce imposed upon him, stacked with his twenty

- year sentence for eva d ing arres t, constitutes cruel and unusual11 punishment. We first note that the Court of Criminal Appeals has held that a n order cumulating sentences is not cruel and unusual punishment per se. See Stevens v. State , 667 S.W.2d 534, 538 (Tex. Crim. App. 198 4 ).
Furthe rmore , as Appellant concedes in his brief, he made no timely objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, failed to preserve any such error. See Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Cr i m. App. 1 996) ( waiver with regard to rights under the Texas Constitution); Curry v. State , 910 S.W.2d 490, 497 (Tex. Cr im. App. 1995) (waiver with regard to rights under the United States Constitution); see also T EX

. R.
A PP

. P. 33.1; Mays v. State , 285 S. W.3d 884, 889 (Tex. Crim. App. 2009) (“Preservation of error is a systemic requirement that a first

- level appellate cour t should ordinarily review on its own motion[;] ... it [is] incumbent upon the [c]ourt itself to take up error preservation as a thres ho ld
issue.” ). But even despite Appellant ’ s failure to preserve error, we conclude that the sentence about which he compl ains does not constitute cruel and unusual punishment. The legislatur e is vested with the power to define crimes and prescribe penalti e s. See
Dav is v. State , 905 S.W.2d 655, 664 (Tex. App.

– Texarkana 1995, pet. ref ’ d); see also Simmons
v. State , 944 S.W.2d 11, 15 (Tex. App.

– Tyler 1996, pet. ref ’ d). Courts have repeatedly hel d that punishment which falls within the limits prescribed by a v a lid statut e is not excessive, cruel, or
unusual. See Harris v. State , 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jorda n v. State , 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis , 905 S.W. 2d at 664. In the case at hand, Appellant was convicted of a thi r d

- degree felony, driving while intoxicated, third or more , which
was enhanced by two prior felony convictions , the puni shment range for which is between twenty

- five to ninety

- nine years or li fe in prison

. See T EX

. P ENAL C ODE A NN

. §§ 12. 42 ( d ) (West
2019 ) ; 49.09 (b)( 2)(A) (West Supp. 2021 ). Here, the sentence imposed by the trial court falls within the range set forth by th e legislature. Therefore, the punishment is not prohibited as cruel,

unusu al, or excessive per se. Nonetheless, Appellant urges the co urt to per form the three

- part test originally set forth in
Solem v. Helm , 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 63 7 (1983). Under this test, the proportionality of a sentence is evaluated b y considering (1) the gravity of the offense and the
harshne ss o f the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem , 463 U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has b een m odified by12 Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court ’ s decision in
Har melin v. Michigan , 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold determination that the sentence is gro ssly dispr oportionate to the crime before addressing the remaining elements. See, e.g. , McGruder v. Puckett , 954 F.2d 3 13, 316 (5th Cir. 1992), cert. denied , 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed . 2d 98 (1992); see also Jackson v.
State , 989 S.W.2d 842, 845

– 4 6 (T ex. App.

– Texarkana 1999, no pet.). We first must determine whether Appellant ’ s sentence is grossly disproport ionate. In so doing, we are guided by the holding in Rummel v. Estelle , 445 U. S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rumm el , the Su preme Court addressed the proportionality claim of an appellant who received a mandatory life sentence under a prior version of the Texas habitual
offender statute for a conviction of obtai ning $120.75 by false pretenses. See id

. , 445 U.S. at
26 6, 100 S

. Ct. at 1135. A life sentence was imposed because the appellant also had two prior felony convictions

— one for f raudulent use of a credit card to obtain $80.00 worth of goods or
services and t he other for passing a forged check in the amount of $28 .36. Id

. , 445 U.S. at 266,
100 S. Ct. at 1134

– 35. After recognizing the legislative prerogative to classify offenses a s felonies and, further, considering the purpose of the habitual offender statute, the court determined that the appellant ’ s mandatory l ife senten ce did not constitute cruel and unusual punishment. Id

. , 445 U.S. at 285, 100 S. Ct. at 1145.
In the case at hand, the offense committed by Appellant

— driving while intoxicated, third

or more

— is at least as serious as the combination of offenses committed by the appellant in
Rummel , while Appellant ’ s combined seventy

- year sentence is less severe than the life sen tence upheld by the Supreme Court in Rummel

. Thus, it is reasonable to conclude tha t if the sentence
in Rummel was not unconstitutional ly disprop ortionate, then neither is the sentence assessed against Appellant. Therefore, since we do not find the thres hold test to be satisfied, we need not apply the remaining elements of the Solem test . Appellant ’ s fourth issue is overru led.

E MERGENCY M ANAGEMEN T S ERVICES T RAUMA F EE In his fifth issue, Appellant argues that the $100 Emergency Medical Services (EMS)

t rauma fee assessed as part of h is court costs is unconstitutional and should be delet ed from the judgment. Appellant argues that the stat utory prov ision that provides for the EMS trauma fee is
unconstitutional because the funds collected are not allocated for legitimate criminal justice13 purposes, thus violating the separation of powers cla use of the Texas Constitution. See T EX

. C ONST

. art. II, § 1. Effective January 1, 2020, the Legislature amended Article 102.0185 of the Texas Code of Criminal Procedure, entitled “Fine for Intoxication Convictions: Emergency Medical Services,
Trauma Facili ties, and Trauma Care Systems.” The sta tute provide s that upo n conviction of an offense under Chapter 49 of the penal code, except for Sections 49.02 and 49.031, the def endant “shall” pay a $100 fine. T EX

. C ODE C RIM

. P ROC

. A NN

. art 102.0185 (West Supp. 202 1). Prior to the amendment, Article 102.0185 was entitled “ Additional Costs Attendant to Intoxication Convictions: Emergency Medical Services, Trauma Facilities, and T rauma Care Systems.” See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 2.38, 2019 Tex . Gen. Laws 3981, 4005

- 06.
T he Legislature subst ituted “fi ne” for “costs” throughout the statute. The amendment applies only to an offense committed on or after the effective date, which is January 1, 2020, and the former law applies to offenses committed before January 1, 2020. Id

. at 4035. Because Appellant committed his offense in March 2019, the former law applies. A facial challenge is an attack on the statute itself as opposed to a particular application.
Salinas v. State , 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). It is a challenge to the st atute in

a ll its applications. Id

. Appellant’s facial constitutional challenge is grounded on separation of powers b etween the branches of government, which the Texas Constitution exp ressly guarantees.
T EX

. C ONS T art. II, § 1. “One way the Separation of Powers pr ovision is violated is when one branch of government assumes or is delegated a power more properly attached to another
branch.” Salinas , 523 S.W.3d at 106

– 07 (internal quotatio n and citation removed). Alt hough courts may not operate as tax gath erers, whi ch is a function reserved to the executive branch, “courts may collect fees in criminal cases as part of its judicial function ‘if the statute under
which court costs are assesse d (or an interconnected stat ute) provides for an allocation of such

court cost s to be expended for legitimately criminal justice purposes.’” Casas v. State , 524 S.W.3d 921, 926 (Tex. Ap p.

— Fort Worth 2017, no pet.) (quoting Peraza v. State , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015)). The version of the statute authorizing the cost in effect at the time imposed an additional $100 court cost upon conviction for an intoxication offense to b e allocated for emergency

medical services, trauma facilities, and trau ma
- care systems. Act of June 1, 2003, 78th Leg., R.S., ch. 1213, § 4, 2003 Te x. Sess. Law Serv. Ch. 1213, amended by Act of May 5, 2011, 82nd14 Leg., R.S., ch. 91, § 6.007, 2011 Tex. Sess . Law Serv. Ch. 91. This statute was again amended in
2019. See Act of May 23, 2019, 86th Leg., R.S ., ch. 1352, § 2.38, 2019 Tex. Sess. La w. Serv.
C h. 1352, current version at T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.0185. Attendant statutes direct the comptro ller to deposit the monies collected in an account in the general revenue fund
established for the s ame services, facilities, and systems. Id

. ; see also T EX

. H EALTH & S AFETY C ODE A NN

. § 773.006(a) (West 2017 )

. The commissioner of state health services is directed to use the monies deposited in the reserved account “to fun d county and regional emergency

me dical services, designated trauma fa cilities, and trauma care systems” in accordance with certain statutory percentages and to maintain a $500,000 reserve

. T EX

. H EALTH & S AFETY C ODE A

NN .§ 773.122(a)

– (f) (West 2017 )

. Appell ant urges us to follow the Fort Wo rth and Texarkana Courts of Appeals , which

re lied on Salinas and held that the prior version of A rticle 102.0185 of the Code of Criminal Procedure, direc ting the collection of the $100 “EMS Trauma Fund” cost, is unconstitu tional.
See Casas , 524 S.W.3d at 9 27; see also Waddell v. State , No. 02

- 14

- 0037 2

- CR, 2017 WL 4819373, at *1 (Tex. App.

— Fort Worth Oct. 26, 2017, no pet.) (mem. op., not designated for pub lication); Robinson v. State , No. 06

- 17

- 00082

- CR, 2017 WL 4655107, at *4 (Tex. App.

— Texarkana Oct. 18, 2017, pet. ref ’ d) (mem. op., not de signated f or publication). In Casas , the Fort Worth Court of Appeals held that the statute was unconstitutional becau se the Legislature did not explicitly direct that the funds be used fo r criminal

- justice purposes and re asoned that it
was insufficient th at some of the money collected could ultimately be spent on a legitimate
criminal

- justice purpose, such as victims of a drunk

- driving accident. Casas , 524 S.W.3d at 927 (quoting Salinas , 5 23 S.W.3d at 107

– 109). We agree wi th our sister courts of appeals. The former version of A rticle 102.0185 of the
Code of Criminal Procedure is facially unconstitutional because neither the statute nor its attendant statutes explicitly direct that the court cost collected be used for a crim inal

- justice

purpose. See Casas , 524 S.W.3d at 927 ; Richardson v. State , 606 S.W.3d 375, 384

– 85 (Tex. App.

— Houston [1st Dist.] 2020), pet. ref’d , No. P D

- 483

- 20, 2020 WL 6156390 (Tex. Crim. App. Oct. 21, 2020)

. We sustain Appellant’s fifth issue and modify the judgment and bill of

costs t o delete t he $100 EMS trauma fee

.15 W ARRANT F EE In his sixth issue, Appellant urges the trial court improperly ass esse d certain court costs in its judgment. Specifically, he argues the trial court improperly assessed a “war rant fee”
because he was not ar rested pur suant to a warrant. The bill of costs itemizes the costs imposed, which total $463.50. 4 This includes a $50 .00 “warrant fee.” It also reflects a $5.00 arrest fee. The Texas Code of Criminal Procedure requires a convicted defendant to pay cert ain fees t o “defray the cost of services provided in the case by a peace officer.” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102 .011(a) (West Supp. 202 1 ). Specifically, it requires a defendant to pay $5.00 for an arrest without a warra nt and $50.00 for executing o r processi ng an issued arrest warrant, capias, or capias pro fine. Id

. art. 102.011(a)(1)

- (2). Appellant urges that “[ b]ecause no arrest warrants or capiases appear in the record,” the

warrant fee is not supported by the record

. As a result, he asks this Court to delete the warrant fee. We agree that no arrest warrants appear in the record

. We have the authority to mod ify a judgment to make the record speak the truth when we have the necessary data and information to
do so. Se e T EX

. R. A PP

. P. 43.2(b); Patterson v. State , 525 S.W.3d 896, 898 (Tex. App.

— Tyler 2017, no pet.). Therefore, we modify the judgment and c orresp onding bill of costs to delete the
warrant fee . We sustain Appellant’s sixth issue.

D ISPOSITION Having over ruled Appellant’s first, se cond, thir d, and fourth issues but sustained his fifth and sixth issues, we modify the trial court’s judgment and corre sponding bill of costs and attached order to withdraw funds to delete the $100 EMS/Trauma Fund fee and delete the $50
warrant fee , leavin g a total of $313.50 in costs. We affirm the judgment as modified

.

B RIAN H OYLE Justice
Opinion delivered April 2 9 , 20 22. Panel consisted of Worthen, C 9 .J., H oyle, J., and Neeley, J.

4 The trial court’s judgment does not reflect the costs a ssessed in t he bill of costs and order to withdraw funds. The judgment only refer ences $50 in costs and a $100 fine.16 ( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRI CT OF TEXA S

JUDGMENT

APRIL 2 9 , 2022

NO. 12

- 21

- 00060

- CR

BILLY TREMAYNE CASEL , Appellant V. THE STATE OF TEXAS , App ellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct .No. 007

- 1635

- 19 ) THIS CAUSE came to be heard on the appellate record and t he brief s filed herein, and the same being considered, it is the opini on of this court that the judgment and corresponding bill of costs and attached order to withdraw funds of the court below should be modified and as modified, affirmed.

I t is therefo re ORDERED, ADJUDGED and DECREED that the judgment and corresponding bil l of costs and attached order to withdraw funds be modified to delete the $100 EMS/Trauma Fund fee and delete the $50 warr ant fee , leaving a total of $313.50 in costs of the court belo w against Appellant; in all other respects the judgment of the trial cou rt is affirmed ; and that this decision be certified to the court b elow for observance

. Brian Hoyle , Justice

. P anel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.