## No. 01-14-00675- CR No. 01 -14-00676- CR In the 

### Court of Appeals For the 

### First District of Texas At Houston

♦ No s
. 1394947 & 1394948 In the 174 th Criminal District Court Of Harris County, Texas

♦ 

### ISRAEL MONTOYA ALCARAZ Appellant V. 

### THE STATE OF TEXAS Appellee

♦ 

## STATE’S APPELLATE BRIEF

♦ D EVON A NDERSON District Attorney Harris County, Texas B RIDGET H OLLOWAY Assistant District Attorney Harris County, Texas Texas Bar No. 24025227 holloway_bridget@dao.hctx.net A MY M C C AULEY Assistant District Attorney Harris County, Texas Harris County Criminal Justice Center 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713·755· 5826

ORAL ARGUMENT NOT R EQUESTED ACCEPTED 01-14-00676-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 6/23/2015 2:51:33 PM CHRISTOPHER PRINE

CLERK

### STATEMENT REGARDING ORAL ARGUMENT

Pursuant to T EX

. R. A PP

. P. 9.4(g) and T EX

. R. A PP

. P. 39.1 , the State does not
request oral argument.



### IDENTIFICATION OF THE PARTIES

Pursuant to T EX

. R. A PP

. P. 38.2( a)(1)(A) , a complete list of the names of all interested parties is provided below. Complainant, victim, or aggrieved party:

XX

— a minor Counsel for the State:

Devon Anderson

 District Attorney of Harris County Bridget Holloway

 Assistant District Attorney on appeal Amy McCauley

 Assi stant District Attorney at plea Appellant or criminal defendan t: Israel Montoya Alcaraz Counsel for Appellant:
Alexander Bunin

 Chief Public Defender Angela L. Cameron

— Assistant Public Defender on appeal Mark Thering

— Attorney at plea Trial Judge:
Honorable Ruben Guerrero

 Presiding Judge

### TABLE OF CO NTENTS

STATEMENT REGARDING ORAL ARGUMENT

................................ .......................... 1 IDENTIFICATION OF THE PARTIES

................................ ................................ ................ 1 TABLE OF CONTENTS

................................ ................................ ................................ ........... 2 INDEX OF AUTHORITIES

................................ ................................ ................................ .... 3 STATEMENT OF THE CASE

................................ ................................ ................................ 5 STATEMENT OF FACTS

................................ ................................ ................................ ....... 5 SUMMARY OF THE ARGUMENT

................................ ................................ ..................... 7 REPLY TO APPELLANT’S THIRD ISSUE PRESENTED

................................ ............... 8 Appellant’s judgment should be modified to correctly indicate he did not waive his right to appeal. REPLY TO APPELLANT’S FIRST ISSUE PRESENTED

................................ ................ 8 This Court should wait for the Court of Cr iminal Appeal’s opinion in Peraza v. State, 457 S.W.3d 134 (Tex. App.

— Houston [1st Dist.] 2014, pet. granted Mar. 25, 2015), before ruling on appellant’s challenge to the “DNA Testing Fee.” REPLY TO APPELLANT’S SECOND ISSU E PRESENTED

................................ .......... 10

Analysis

................................ ................................ ................................ ................................ ... 10 Because the record supports that appellant was arrested for three felonies and convicted for two, and because the Code of Criminal Proc edure demands the $5 “Arrest w/out Warrant/Capias” fee upon conviction, the trial court did not err in assessing the court cost. CONCLUSION

................................ ................................ ................................ ......................... 13 CERTIFICATE OF S ERVICE AND WORD LIMIT COMPLIANCE

....................... 14

2

### INDEX OF AUTHORITIES

C ASES Cardenas v. State, 403 S.W.3d 377 (Tex. App.

— Houston [1st Dist.], aff’d 423 S.W.3d 396 (Tex. Crim. App. 2014) 11 Ex parte Carson, 159 S .W.2d 126 (Tex. Crim. App. 1942)

................................ ................................ ........... 8 Garza v. State, 425 S.W.3d 649 (Tex. App.

— Houston [14th Dist.] 2014, no pet.)

................................ ...................... 12 Guzman v. State, No. 01 - 11 - 00862 - CR, 2013 WL 4003791 (Tex. App.

— Houston [1st Dist.] Aug. 6, 2013, pet ref’d)

................................ ......... 12 Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014)

................................ ................................ ........ 10 Mouton v. State, No. 01 - 12 - 00642 - CR, No. 01 - 12 - 00643 - CR, 2013 WL 3522650 (Tex. App.

— Houston [1st Dist.] July 11, 2013, no pet.)

................................ ............ 12 O’Bannon v. State, 435 S.W.3d 378 (Tex. App.

— Houston [14th Dist.] 2014, no pet.)

................................ ........................ 9 Peraza v. State, 457 S.W.3d 134 (Tex. App.

— Houston [1st Dist.] 2014, pet. granted Mar. 25, 2015)

....................... 8 Peyronel v. State, 446 S.W.3d 151 (Tex. App.

— Houston [1st Dist.] pet. granted Dec. 17, 2014)

................................ .. 12

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### S TATUTES T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.020 (West 2006)

................................ ................................ ................................ .... 8
T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.011 (West 2006)

................................ ................................ .............................. 11, 12
T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.16 (West 2006)

................................ ................................ ................................ ....... 10



### R ULES T EX

. R. A PP

. P. 38.2( a)(1)(A)

................................ ................................ ................................ ..... 1
T EX

. R. A PP

. P. 39.1

................................ ................................ ................................ ....................... 1
T EX

. R. A PP

. P. 9.4(g)

................................ ................................ ................................ .................. 1

4

### TO THE HONORABLE COURT OF APPEALS:



### STATEMENT OF THE CASE Appellant, Israel Montoya Alcaraz , w as charged with one count of aggravated sexual assault of a child and one count of possession of child pornography

. (CR 947 at 24; CR948 at 16 ). A ppellant ente red a plea of “ guilty” to
both offense s and his cases were reset for a presentence investigation (PSI)

. ( CR947 at 32; CR948 at 24; RRI at 88 - 89 )

. After the PSI hearing, appellant was
sentenced to confine ment for 50 years and 10 years respectively, to run concurrently

. ( CR947 at 62; CR948 at 37; RRI at 88 - 89 ). Written notice s of

app eal were timely filed. (CR 947 at 67; CR948 a t 40 ).

       ♦

      



### STATEMENT OF FACTS Appellant was indicted for aggravated sexual assault of a child under the age of 14 and for possession of child pornography

. No en hanceme nts were alleged. (CR947 at 24; CR948 at 16 ). Appellant entered a plea of “guilty” to both charges
without agreed punishme nt recommendation s . Appellant signed a written Waiver of Constitutional Right s, Agreement to Stipulate, and Judicial Confession in which he agreed “I understand the above allegations and I confess that they are true and that the acts alleged above were committed on June 2, 2013 .” ( CR947 at 32;

5CR948 at 24 ) (emphasis handwritten on form s ). The court costs assessed against appellant included a $250 “DNA Testing Fee” and a $5 “Arrest w/o Warrant/Capias.” (CR947 at 64; CR948 at 39 ). While initially the trial court certified that appellant did not have the right to appeal, the trial court properly changed that ruling . ( RR 1 - 29 - 15 ).

       ♦

      

6

### SUMMARY OF THE ARGUMENT Appellant’s judgment should be modified to correctly indicate he did not waive his right to appeal. Furthermore, this Court should wait for the Court of
Criminal A ppeal’s opinion in Peraza v. State, 457 S.W.3d 134 (Tex. App.

— Houston [1st Dist.] 2014, pet. granted Mar. 25, 2015) , before ruling on appellant’s challenge to the “DNA Testing Fee.” Last ly, it is submitted that the $5 “Arrest w/o Warrant/Capias ” fee is s upported by the record and proper.

       ♦

      

7

### REPLY TO APPELLANT’S THIRD ISSUE PRESENTED In his third issue presented on appeal, appellant asks this Court to reform the judgment to reflect that appellant did not waive his right to appeal. Because the record shows appellant did not waive his right to appeal, the State does not oppose this request . Appellant’s third issue presented on appeal should be
sustained.

       ♦

      



### REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
Relying on Peraza v. State, 457 S.W.3d 134 (Tex. App.

— Houston [1st Dist.] 2014, pet. granted Mar. 25, 2015), a ppellant challenges the trial court’s assess ment of the “DNA Testing Fee” in his bill of costs as unconstitutional. Appellant requests this Court modify each judgment to delete the $250 charge from court

costs.
In Peraza , this Court held that T EX

. C ODE C RIM

. P ROC

. art. 102.020 , “Costs related to DNA testing,” authorizes an unconstitutional tax because the costs it imposes are not “necessary or incidental to a criminal trial.” Peraza , 457 S.W.3d a t
141 (citing Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942) ). Not pointed out by appellant
, however, is that the Fourteenth Court of Appeals has d isagree d

8with this Court’s ruling in Peraza

. See O’Bannon v. State, 435 S.W.3d 378 (Tex. App.

— Houston [14th Dist.] 2014, no pet. ). After appellan t filed his appellate brief in this case, the Court of Criminal Appeals granted petition for discretionary review in Peraza . B riefs have been filed
and t he Court of Criminal Appeals heard argument on May 20, 2015 , regarding whether the $250 DNA Testing Fe e is constitutional ; so guidance from the Court of Criminal Appeals is forthcoming to reconc ile Peraza and O’Bannon

. The State requests this Court delay its ruling on this issue until the Court of Criminal Appeals has spoken.

       ♦

      

9

### REPLY TO APP ELLANT’S SECOND ISSUE PRESENTED Appellant challenges another court cost in his second issue presented on

ap peal. Appellant argues the $5 “Arrest w/o Warrant/Capias ” part of the Sheriff’s
fee should be deleted from the bill of costs because the bill of cos ts also s hows a $50 “Serving Capias” fee and “[o]ne cannot be arrest[ed] both with and without a warrant or capias

. ” 1 Because the record supports that appellant was arrested for
three felonies and convicted on two, and because the Code of Cr iminal Procedu re demands the $5 “Arrest w/out Warrant/Capias ” fee upon conviction, the trial court did not err in assessing the court cost.


### A NALYSIS The assessment of court costs on appeal is reviewed to determine if there is a basis for the cost, not to determine if th ere was sufficient evidence offered at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). If the defendant receives any punishment other than a fine, the judgment must declare the costs against the defendant and order the collection of those costs. See
T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.16 (West 2006). When a specific amount of court costs is written in the judgment, an appellate court errs when it deletes the

1 Appellant’s brief at 12.

10specific amount if there is a basis for the cost. Johnson , 423 S.W.3d at 389. Although it is the most expedient and prefera ble method to sustain statutorily authorized and assessed court costs, a bill of costs is not required to support the amount of court costs if the reviewing court concludes that the assessed costs are supported by facts in the record. Id . at 395.
Because the record demonstrates that appellant pled guilty and was thus
convicted in district court of two felonies, felonies under section 21.011 of the
Texas Penal Code , a factual basis exists for both $5 “Arrest w/o Warrant/Capias”
and $50 “Serving Capias” fee s

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.011(a)(1) (West 2006) (defendant convicted of felony must pay $5 when a peace officer
makes a warrantless arrest ) ; T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.011(a) (2) (West
2006 ) (a defendant convicted of a felony must pay $50 for executing or processing arrest warrant); see also T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.011(e) (West 2006) (“A fee under Subsection ... (a)(2) ... shall be assessed on conviction, regardless of whether the defendant was also arrested at the same time for another offense, and shall be assessed for each arrest made of a defendant arising out of the offense for which the defendant has been convicted.”))

. While appella nt claims it is impossible to be arrested both with and without a warrant, both fees have been assessed and upheld in other cases. See Cardenas v. State, 403 S.W.3d 377 (Tex. App.

— Houston [1st Dist.], aff’d 423 S.W.3d

11396 (Tex. Crim. App. 2014) ; Peyronel v. State, 446 S.W.3d 151 (Tex. App.

— Houston [1st Dist.] pet. granted Dec. 17, 2014 ) ; 2 Garza v. State, 425 S.W.3d 649 (Tex. App.

— Houston [14th Dist.] 2014, no pet.); Guzman v. State, No. 01 - 11 - 00862 - CR, 2013 WL 4003791 (Tex. App.

— Houston [1st Dist.] Aug. 6, 2013, pet ref’d); Mouton v. State,
No. 01 - 12 - 00642 - CR, No. 01 - 12 - 00643 - CR, 2013 WL 3522650 (Tex. App.

— Houston [1st Dist.] July 11, 2013, no pet.) . Furthermore, while the record here indicates appellant had a warrant issued for his arrest, he was arrested for three felonies (evading charge was dropped). Even assuming the arrest warrant wa s for
both aggravated sexual assault and for possession of child pornography, appellant had a third arrest for evading, which would have been without a warrant , but
arose from the convicted offenses

. (RRPSI at 17, 89). See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 10 2.011(e) (West 2006)

. Appellant’s second issue on appeal should be
overruled.

       ♦

      

2 Petition for discretionary granted on an unrelated issue.

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### CONCLUSION It is respectfully submitted that appellant’s judgment be modified to indicate he did not waive his right to appeal. It is fu rther submitted that this Court should wait for the Court of Criminal Appeal’s opinion in Peraza before ruling on appellant’s challenge to the “DNA Testing Fee.” Lastly, it is submitted

t hat the $5 “Arrest w/o Warrant/Capias ” fee is supported by the recor d and

proper.

D EVON A NDERSON District Attorney Harris County, Texas

/s/ 

### Bridget Holloway

B RIDGET H OLLOWAY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 713.755. 5826 Texas Bar No. 24025227 holloway_bridget@dao.hctx.net

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### CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE This is to certify: (a) that the word count of the computer program used to prepare this docum ent rep orts that there a re 2036 words in the docum ent; and (b) that the undersigned attorney requested that a copy of this document be served to appellant’s att orney s via TexFile at the following email s on June 23, 2015 :

Angela L. Cameron Assistant Public Defender Email: angela.cameron@pdo.hctx.net

/s/ 

### Bridget Holloway

B RIDGET H OLLOWAY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 71 3.755. 5826 Texas Bar No. 24025227 holloway_bridget@dao.hctx.net

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