Affirmed as Modified and Opinion on Remand filed June 10, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00653-CR

BENNETT KEITH O’BANNON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1310491

OPINION ON REMAND

Appellant Bennett Keith O’Bannon appeals his conviction for indecency 

with a child. On original submission, appellant argued (1) the trial court reversibly 

erred in allowing the State to present testimony from two outcry witnesses 

regarding the same alleged conduct; (2) the judgment is invalid because it 

contained sheriff’s fees that are not supported by the record; (3) the assessed DNA

court costs are unconstitutional as a matter of law; and (4) the trial court erred in 

not granting a hearing on appellant’s motion for new trial or motion in arrest of 

judgment. In a single cross-issue, the State asked the court to modify the judgment 
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to correct the amount of jail time credited to appellant’s sentence. We modified the 

trial court’s judgment to delete the specific amount of costs assessed and reflect jail 

time credited from July 8, 2011, through July 11, 2012. O’Bannon v. State, No. 14-

12-00653-CR; 2013 WL 4806994 (Tex. App.—Houston [14th Dist.] Sept. 10, 

2013), vacated and remanded, No. PD-1346-13; 2014 WL 1512960 (Tex. Crim. 

App. Apr. 16, 2014). The Court of Criminal Appeals vacated our judgment and 

remanded in light of its opinion in Johnson v. State, 423 S.W.3d 385 (Tex. Crim. 

App. 2014).

Sheriff’s Fees

In his second issue appellant argues the judgment is invalid because it 

contains fees from the sheriff that are erroneous and unsupported. On April 28, 

2014, this court received a supplemental clerk’s record containing a certified bill of 

costs listing, among other costs, $110 for “Summoning Witness/Mileage.” The 

record reflects that 11 witnesses were summoned. Article 102.011(a)(3) of the 

Texas Code of Criminal Procedure requires that a defendant pay $5 for each 

witness summoned. Both parties agree, and the record supports, that 11 witnesses 

were summoned at three different times. 

Appellant argues, “Either the cost is $55 or $165. The Sheriff’s fee of $110 

is wholly unsupported by any documentation.” We disagree. Although the sheriff’s 

fee could have been as much as $165, the record reflects that 11 witnesses were 

summoned at least twice, which supports the cost of $110. Because the cost of 

$110 for summoning witnesses is supported by the record, we overrule appellant’s 

second issue.

DNA Testing Fee

In his third issue appellant contends the judgment is invalid because the 
3

assessed DNA Testing Fee is unconstitutional as a matter of law. The certified bill 

of costs in the supplemental clerk’s record lists, among other costs, $250 for a

“DNA Testing Fee.” This fee is authorized by article 102.020 of the Texas Code of 

Criminal Procedure, entitled, “Costs Related to DNA Testing.” As pertinent here, 

article 102.020 provides: 

(a) A person shall pay as a cost of court:

(1) $250 on conviction of an offense listed in Section 411.1471(a)(1), 

Government Code;

*****

(h) Except as provided by Subsection (h-1), the comptroller shall 

deposit 35 percent of the funds received under this article in the state 

treasury to the credit of the state highway fund and 65 percent of the 

funds received under this article to the credit of the criminal justice 

planning account in the general revenue fund.

Tex. Code Crim. Proc. art. 102.020.

Appellant argues that article 102.020(h) is facially unconstitutional under the 

separation of powers clause of the Texas Constitution, which provides:

DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; 

EXERCISE OF POWER PROPERLY ATTACHED TO OTHER 

DEPARTMENTS. The powers of the Government of the State of 

Texas shall be divided into three distinct departments, each of which 

shall be confided to a separate body of magistracy, to wit: Those 

which are Legislative to one; those which are Executive to another, 

and those which are Judicial to another; and no person, or collection 

of persons, being of one of these departments, shall exercise any 

power properly attached to either of the others, except in the instances 

herein expressly permitted.

Tex. Const. art. II, § 1.

According to appellant, the uses specified in article 102.020(h) for the DNA 

Testing Fee collected under article 102.020(a)(1) are not properly characterized as 

costs of court; therefore, appellant contends that article 102.020(h) impermissibly 
4

requires the judicial branch to perform an executive function by collecting a tax. 

Appellant argues that while the DNA fee might be considered a necessary 

expense for DNA testing, the fee neither goes toward DNA testing or for the 

functions of the courts. Instead, 35 percent of the fee goes to the state highway 

fund, and 65 percent to the criminal justice planning account in the general revenue 

fund. Appellant thus contends that the statute impermissibly compels courts to 

collect a tax in violation of separation of powers principles.

In addressing a constitutional challenge, this court “must begin with the 

presumption that the statute is valid and that the Legislature did not act arbitrarily 

or unreasonably in enacting it.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. 

App. 2013). The party challenging the statute “has the burden to establish its 

unconstitutionality.” Id. “[T]o prevail on a facial challenge, a party must establish 

that the statute always operates unconstitutionally in all possible circumstances.” 

Id. 

Appellant principally relies on Ex parte Carson, 143 Tex. Crim. 498, 159 

S.W.2d 126, 127 (1942), to meet this burden. Carson invalidated a statute 

requiring the collection of $1 in costs in civil and criminal cases in certain counties 

to fund law libraries in those counties. Id. The Court of Criminal Appeals 

invalidated the statute because (1) the $1 cost was “neither necessary nor incidental 

to the trial of a criminal case [and thus was] not a legitimate item to be so taxed” 

against a criminal defendant; (2) the statute was a local or special law, which the 

state legislature was not authorized to enact; and (3) collection of this cost only 

from defendants in certain counties was discriminatory. Id. at 127, 129–30. Noting 

the conflicting decisions on the issue of what can be considered a proper cost in the 

trial of a case, the court noted:

On one side the courts take the view that the costs may be taxed as a 
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proper item because the money is used in the establishment and 

maintenance of a law library which, it is stated, is a legitimate charge 

on the litigants. We find ourselves unable to accept that view. Such 

reasoning would lead into fields of expenditures which may as well 

include the cost of the court houses, the automobiles which officers 

use to apprehend criminals and even the roads upon which they ride. 

If something so remote as a law library may be properly charged to 

the litigant on the theory that it better prepares the courts and the 

attorneys for the performance of their duties, it occurs to us that we 

might as logically tax an item of cost for the education of such 

attorneys and judges and even the endowments of the schools which 

they attend. Many other illustrations might be used appropriately to 

show the fallacy of such contention and the inevitable result that 

litigation in the courts would be prohibitive. We, therefore, conclude, 

as several states have, that the tax imposed by the bill is not and 

cannot be logically considered a proper item of cost in litigation, 

particularly in criminal cases.

Id. at 127.

Earlier this year, a divided panel of this court upheld “consolidated court 

costs”1in the face of a similar constitutional challenge. See Salinas v. State, 426 

S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet. filed). In Salinas, 

appellant also relied on the holding in Carson to support his assertion that the 

separation of powers doctrine prohibited assessment of court costs that were not 

necessary or incidental to the trial of a criminal case. Id. at 326. We agree with the 

majority’s assertion that “[t]here is room to discuss whether Carson can bear the 

weight appellant would have it carry. Carson’s passing discussion of whether the 

$1 fee constitutes a ‘tax’ [the entirety of which is quoted above] is both 

abbreviated and bereft of citations to supporting authority.” Id.

Assuming arguendo that Carson requires a statute imposing court costs to be 

 

1

Tex. Loc. Gov’t Code § 133.102.
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“necessary or incidental to the trial of a criminal case,”2appellant’s facial 

constitutional challenge to section 102.020(h) fails. 

In this case, as in Salinas, appellant has failed to satisfy his burden to show 

that the statute is invalid in all possible applications because he has not established 

how the funds will be used once they are distributed to the state highway fund and 

the criminal justice planning account. Appellant draws inferences from the fact that 

the criminal justice planning account is established by the governor’s office, and 

that the funds flow “directly to the executive branch and [are] used for policy 

purposes.” With regard to the portion of the cost that is directed to the state 

highway fund, appellant infers from the title of the fund that the funds collected 

will not be used for purposes necessary or incidental to DNA collection or testing. 

A review of the statutes related to DNA collection and costs reveals that the 

funds collected as a DNA Testing Fee are sufficiently related to the collection and 

testing of DNA in criminal cases. Article 102.020 requires assessment of a DNA 

Testing Fee of “$250 on conviction of an offense listed in Section 411.1471(a)(1) 

of the Government Code.” Tex. Code Crim. Proc. art. 102.020. Section 411.1471, 

entitled “DNA Records of Persons Charged with or Convicted of Certain Felonies” 

requires a defendant to “provide to a law enforcement agency one or more 

specimens for the purpose of creating a DNA record.” Tex. Gov’t Code § 

411.1471(b). It also requires law enforcement agencies to preserve the specimen 

and maintain a record of the collection of the specimen. Id. § 411.1471(d). Article 

102.056(e) of the Code of Criminal Procedure, titled “Distribution of Funds,” 

permits grants from the criminal justice planning account to the Department of 

Public Safety “for expenses incurred in performing duties imposed . . . under 

Section 411.1471.” Therefore, we cannot say that the 65 percent of the DNA 

 

2 Carson, 159 S.W.2d at 130.
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Testing Fee that is distributed to the criminal justice planning account is so 

unrelated to the collection and maintenance of DNA records that it could be 

considered a “tax” under Carson.

With regard to the remaining 35 percent directed toward the state highway 

fund, those funds are to be used, among other uses, “by the Department of Public 

Safety to police the state highway system and to administer state laws relating to 

traffic and safety on public roads.” Tex. Transp. Code § 222.001(a)(3). One of the 

functions performed by DPS is establishment and maintenance of “a computerized 

database that serves as the central depository in the state for DNA records.” Tex. 

Gov’t Code § 411.142(a). Therefore, these inter-connected provisions permit the 

DNA Testing Fee to be redistributed through the state highway fund to the 

Department of Public Safety for legitimate criminal justice purposes.

Because appellant has failed to satisfy his burden to show that the statute is 

invalid in all possible applications, we overrule appellant’s third issue.

Hearing on Motion for New Trial

In his fourth issue appellant argues the trial court erred in not granting a 

hearing on the motion for new trial or the motion in arrest of judgment. 

Appellant filed a motion for new trial in which he argued the sheriff’s fee 

discrepancy and the constitutionality of the DNA Testing Fee. Attached to the 

motion was (1) the court’s judgment; (2) a computer printout of the costs assessed; 

(3) the order to the sheriff’s office to prepare and provide a copy of the sheriff’s 

fee record; (4) the sheriff’s fee record; (5) an order to include a bill of costs in the 

appellate record; and (6) copies of the subpoenas issued. Appellant also filed a 

motion in arrest of judgment in which he made identical arguments and attached 

identical documents as those made and attached to the motion for new trial. 
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Appellant properly presented the motions and requested a hearing. Neither motion 

contains an affidavit stating which matters are not determinable from the record. 

The trial court denied appellant’s request for a hearing.

While not required by statute, if a motion for new trial alleges facts outside 

the record, it must be supported by an affidavit. Reyes v. State, 849 S.W.2d 812, 

816 (Tex. Crim. App. 1993); Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim.

App. 1983); Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no 

pet.); see Tex. R. App. P. 21.2. A motion for new trial alleging facts outside the 

record unsupported by affidavit is fatally defective, and the trial court does not err 

in refusing to entertain such motion. Bearden, 648 S.W.2d at 690; Flores, 18 

S.W.3d at 798.

We conclude that the trial court did not abuse its discretion in not granting 

appellant a hearing and overrule appellant’s fourth issue.

The court’s opinion in Johnson did not affect this court’s original disposition 

of appellant’s first issue and the State’s cross-point. For that reason, we adhere to 

our original disposition in parts I and IV of our previous opinion. See O’Bannon v. 

State, No. 14-12-00653-CR; 2013 WL 4806994 at *1, *4.

We modify the trial court’s judgment to reflect jail time credited from July 

8, 2011, through July 11, 2012. We affirm the judgment as modified.

/s/ Marc W. Brown

Justice

Panel consists of Justices Christopher, McCally, and Brown.

Publish — TEX. R. APP. P. 47.2(b).