IN THE

TENTH COURT OF APPEALS

No. 10-16-00217-CR

ABRAHAM C. MARTINEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2015-2344-C2

O P I N I O N

In this appeal, appellant, Abraham Chavez Martinez, complains that: (1) the trial 

court abused its discretion in ordering the sentence in this case to run consecutive to a 

prior sentence in which appellant was on parole; and (2) the assessment of court costs 

violates his equal-protection rights in light of the Texas Supreme Court’s recent 

pronouncement in Campbell v. Wilder, 487 S.W.3d 146, 152 (Tex. 2016). Because the trial 

court erred in ordering the sentence in this case to run consecutive to a prior sentence in 
Martinez v. State Page 2

which appellant was on parole, we modify the trial court’s cumulation order and affirm 

the judgment as modified. 

I. THE TRIAL COURT’S CUMULATION ORDER

In his first issue, appellant contends that the trial court abused its discretion in 

ordering the sentence in this case to run consecutive to a prior sentence in which he was 

on parole.1 The State responds by asserting that a sentence “ceases to operate” when a 

defendant “makes parole,” unless the parole has been revoked prior to ordering a 

consecutive sentence in a new case. See Byrd v. State, PD-0213-15, 2016 Tex. Crim. App. 

LEXIS 1047, at *11 (Tex. Crim. App. Sept. 14, 2016) (“Without any evidence in the record 

that appellant’s parole on the 2008 offense was revoked prior to being sentenced for this 

offense, we conclude that appellant had ‘made parole’ on that original offense at the time 

of sentencing in this case. Therefore, for the purpose of Article 42.08(a)’s and Section 

508.150(b)(2)’s application to these facts, appellant’s 2008 sentence had already ‘ceased to 

operate’ when he was sentenced in this case. This means that there was no earlier 

sentence still in operation upon which to stack these sentences. The cumulation orders 

are invalid.”). Because of this, and because the trial testimony established that appellant 

had “made parole” at the time of the offense and was still on parole throughout trial, the 

State concedes that the “judgment should be modified accordingly to delete the provision 

 

1 The aforementioned prior sentence originated in the 54th District Court in Cause Number 2011-

2033-C2 for unlawful possession with intent to deliver a controlled substance—methamphetamine.
Martinez v. State Page 3

that this sentence not begin to operate until the sentence in 2011-2033-C2 ceased to 

operate.” After our review of the record, we agree that the judgment should be modified. 

Accordingly, we sustain appellant’s first issue and modify the trial court’s judgment to 

delete the provision ordering the sentence in this case to run consecutively with the 

sentence imposed in cause number 2011-2033-C2.

II. COURT COSTS

In his second issue, appellant argues that the statutes authorizing the assessment 

of court costs against indigent criminal defendants are unconstitutional and violate his 

right to equal protection of the law. We disagree.

Upon conviction, the imposition of court costs is mandatory. TEX. CODE CRIM.

PROC. ANN. art. 42.16 (West 2006) (“If the punishment is any other than a fine, the 

judgment . . . shall adjudge the costs against the defendant . . . .”). The allowable types 

and amounts of costs are set by statute, see id. ch. 102 (West 2006 & Supp. 2016), and no 

cost may be imposed unless it is “expressly provided by law.” Id. art. 103.002 (West 2006). 

Moreover, court costs need not be proven at trial because they are not part of the 

defendant’s guilt or the sentence to be imposed. See, e.g., Martin v. State, Nos. 14-14-00761-

CR & 14-14-00762-CR, 2015 Tex. App. LEXIS 12414, at *2 (Tex. App.—Houston [14th Dist.] 

Dec. 8, 2015, no pet.) (mem. op., not designated for publication). “Rather, they are 

‘nonpunitive recoupment of the costs of judicial resources expended in connection with 
Martinez v. State Page 4

the trial of the case.’” Id. (quoting Weir v. State, 278 S.W.3d 364, 365-66 (Tex. Crim. App. 

2009)).

Here, appellant was ordered to pay $434 in court costs. On appeal, appellant seeks 

to delete the assessment of court costs because the imposition of such costs violates his 

equal-protection rights, especially because the Texas Supreme Court has held “[i]t is an 

abuse of discretion for any judge, including a family law judge, to order costs in spite of 

an uncontested affidavit of indigence.” Campbell, 487 S.W.3d at 152. More specifically, 

appellant asserts that “[t]he various statutes under which court costs were assessed in 

this case are unconstitutional as applied to [appellant] because similarly situated indigent 

civil litigants are not required to pay court costs and no rational basis exists for treating 

indigent criminal defendants and indigent civil litigants differently.”

In determining the constitutionality of a statute, we begin with the presumption 

that it is valid and that the legislature did not act arbitrarily or unreasonably in enacting 

the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); see State v. Rosseau, 

396 S.W.3d 550, 557 (Tex. Crim. App. 2013). The burden of establishing the 

unconstitutionality of a statute falls on the party seeking to challenge the statute. Rosseau, 

396 S.W.3d at 557. “The Equal Protection Clause of the Fourteenth Amendment requires 

that ‘all persons similarly situated shall be treated alike’ under the law.” Id. (quoting 

Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982); Wood v. State, 18 

S.W.3d 642, 651 (Tex. Crim. App. 2000)). “The party challenging a statute on equal 
Martinez v. State Page 5

protection grounds bears the burden of showing that the statutory classification is not 

rationally related to a legitimate state interest, where interests other than fundamental 

rights or suspect classifications are affected.” Wood, 18 S.W.3d at 651. It is undisputed 

that neither fundamental rights nor suspect classifications are implicated in this case; as 

such, the rational-basis test applies.

Under the rational-basis test, similarly-situated individuals must be treated 

equally unless there is a rational basis for not doing so. Aguirre v. State, 127 S.W.3d 883, 

886 (Tex. App.—Austin 2004, no pet.) (citing Whitworth v. Bynum, 699 S.W.2d 194 (Tex. 

1985); Mauldin v. State Bd. of Plumbing Exam’rs, 94 S.W.3d 867, 873 (Tex. App.—Austin 

2002, no pet.)). “We will uphold a law creating a classification if there is ‘any reasonably 

conceivable state of facts that could provide a rational basis for the classification.’” Id.

(quoting Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14, 113 S. Ct. 

2096, 124 L. Ed. 2d 211 (1993); Mauldin, 94 S.W.3d at 873). “Where there are plausible 

reasons for legislative action, our inquiry is at an end. Id. (citing Beach Commc’ns, 508 U.S. 

at 313-14). “In fact, the party challenging the legislative classification has the burden of 

negating every conceivable basis which might support it.” Id. (citing Beach Commc’ns, 508 

U.S. at 315).

Contrary to appellant’s assertion, indigent civil litigants and indigent criminal 

defendants are not similarly-situated persons. In Campbell, the Texas Supreme Court 

noted that Texas Rule of Civil Procedure 145, which pertains to a civil litigant’s ability to 
Martinez v. State Page 6

afford to pay costs, “is but one manifestation of the open courts guarantee that ‘every 

person . . . shall have remedy by due course of law.’” 487 S.W.3d at 152 (quoting TEX.

CONST. art. 1, § 13). In other words, if not for the provisions of Rule 145, an indigent 

person, seeking the remedies afforded to non-indigent persons through the civil courts, 

would be prevented from accessing the courts. See TEX. R. CIV. P. 145.

Indigent criminal defendants face no such barrier. In fact, indigent criminal 

defendants are in court solely because of a criminal charge brought by the State, and court 

costs are not assessed, unless a conviction is obtained. Furthermore, indigent criminal 

defendants are afforded a number of advantages that are unavailable to indigent civil 

litigants, including the right to court-appointed counsel at trial and on the first direct 

appeal, see U.S. CONST. amend VI; Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S. Ct. 792, 

797, 9 L. Ed. 2d 799 (1963); the right to experts, see Ake v. Oklahoma, 470 U.S. 68, 76-77, 105 

S. Ct. 1087, 1092-93, 84 L. Ed. 2d 53 (1985); and the right to a free record on appeal, see 

Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S. Ct. 585, 590-91, 100 L. Ed. 891 (1956). Given the 

above, we cannot say that indigent criminal defendants are similarly situated as indigent 

civil litigants.

Additionally, as described in Weir, the Court of Criminal Appeals has stated that 

the statutes “authorizing an assessment of court costs against convicted defendants, was 

intended by the Legislature as a non-punitive recoupment of the costs of judicial 

resources expended in connection with the trial of the case.” 278 S.W.3d at 365-66 
Martinez v. State Page 7

(internal quotations omitted) (citing People v. Jones, 223 Ill. 2d 569, 861 N.E.2d 967, 975, 

308 Ill. Dec. 402 (Ill. 2006) (noting that unlike a punitive “fine” imposed as part of a 

convicted defendant’s sentence, a “cost” does not punish a defendant, but rather is a 

collateral consequence of the defendant’s conviction that is compensatory in nature); State 

v. Kula, 262 Neb. 787, 635 N.W.2d 252 (Neb. 2001) (stating that “costs” are purely 

compensatory and not punitive)); see, e.g., Martin, 2015 Tex. App. LEXIS 12414, at *2; Shead 

v. State, Nos. 07-15-00164-CV, 07-15-00165-CV, & 07-15-00166-CV, 2015 Tex. App. LEXIS 

8411, at *7 (Tex. App.—Amarillo Aug. 11, 2015, no pet.) (mem. op.); Hurst v. State, No. 04-

13-00465-CR, 2014 Tex. App. LEXIS 5645, at **9-10 (Tex. App.—San Antonio May 28, 2014, 

pet. ref’d) (mem. op., not designated for publication). Therefore, even if equal protection 

was a concern, we believe that the non-punitive recoupment of costs associated with the 

trial of the case constitutes a rational basis for different treatment that advances a valid 

public purpose and a legitimate governmental interest. See Ex parte Carson, 143 Tex. Crim. 

498, 159 S.W.2d 126, 127, 130 (1942) (holding that fees which are “neither necessary nor 

incidental to the trial of a criminal case” are not legitimate court costs that may be 

assessed against a defendant). As such, we cannot say that appellant has met his burden 

in showing that he was denied equal protection of the law through the assessment of 

court costs upon his conviction. See Beach Commc’ns, 508 U.S. at 315; Rosseau, 396 S.W.3d 

at 557; see also Aguirre, 127 S.W.3d at 886. We overrule appellant’s second issue.
Martinez v. State Page 8

III. CONCLUSION

Based on the foregoing, we modify the trial court’s judgment to delete the 

provision ordering the sentence in this case to run consecutively with the sentence 

imposed in cause number 2011-2033-C2 and affirm the judgment as modified.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed as modified

Opinion delivered and filed December 7, 2016

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