Nicholas JACKSON, Appellant v. The STATE of Texas, Appellee

NO. 14-17-00511-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 20, 2018.

Martha Hill Jamison, Justice

Appellant Nicholas Jackson was convicted of a Class B misdemeanor for failing to stop and give information and was sentenced to two days in Harris County Jail. He appeals his conviction and the assessment of certain court costs. Concluding that the evidence was legally sufficient to support appellant's conviction, appellant did not prove he was egregiously harmed by purported jury charge error, and the court costs assessed against appellant are constitutional, we affirm the trial court's judgment.

***Background***

Jack Simmons was in the left turn lane at Montrose and Fairview Streets in Houston, Texas. Appellant's car was ahead of him while waiting to turn left. The solid green light afforded only an unprotected left turn. Appellant did not complete his turn before the light turned red, so he backed out of the intersection and made contact with the front of Simmons's car. Simmons felt his vehicle "shudder" from the impact and heard a pop and crack. When the light turned green again, both appellant and Simmons completed the left turn.

Simmons followed appellant for some distance while appellant kept driving. Simmons alerted the Houston Police Department at some point. Meanwhile, Simmons sounded his horn and flashed his lights four or five times. He pulled up next to appellant and asked, "Are you going to stop?" Appellant waved at Simmons but continued driving.

Officer Peters responded to Simmons's call and conducted a traffic stop. The stop was recorded on Peters's bodycam. Peters took a statement from Simmons and asked to see where appellant hit his vehicle. Simmons used a light on his cell phone to show Peters the damage. Peters also asked Simmons whether he wanted to prosecute or *904just obtain appellant's insurance information. Peters informed appellant that he had failed to pull over after an accident. Appellant appeared surprised and stated that he did not believe he had been in an accident. Peters told appellant that Simmons's vehicle had very little damage except to his front license plate.1 Appellant's vehicle had no damage.

Appellant was indicted for "intentionally and knowingly" failing to stop and give his name and address to Simmons. The jury charge included a definition of "knowingly." Appellant did not object to the charge. A jury found appellant guilty, and the trial court sentenced him to two days' confinement in county jail, plus court costs, including a district attorney's fee of $25, a jury fee of $40, and a sheriff's fee of $15 for "Summoning Witness/Mileage."

***Discussion***

Appellant challenges his conviction on the grounds of legal insufficiency and jury charge error. Appellant also challenges the constitutionality of certain court costs assessed against him.

**I. The evidence is legally sufficient.**

In his first issue, appellant argues the evidence is legally insufficient to prove he was knowingly involved in an accident. When reviewing sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational factfinder could have found the elements of the offense beyond a reasonable doubt. *Gear v. State* , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing *Jackson v. Virginia* , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We do not sit as a thirteenth juror and may not substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. *Isassi v. State* , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. *Id.* This standard applies equally to both circumstantial and direct evidence. *Id.* Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative effect of all incriminating facts is sufficient to support the conviction. *Hooper v. State* , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

To establish failure to stop and give information, the State was required to prove that while operating a vehicle, appellant was "intentionally or knowingly" involved in an accident resulting in damage to another vehicle and failed to stop or provide required information. Tex. Transp. Code §§ 550.022(c), 550.023 ; *Steen v. State* , 640 S.W.2d 912, 915 (Tex. Crim. App. 1982). Appellant challenges only the legal sufficiency of the evidence that he was intentionally or knowingly involved in an accident.

Appellant argues that the totality of the evidence does not support a determination that he was knowingly involved in an accident with Simmons because appellant drove prudently while Simmons followed him, acted surprised when the officer said appellant had been involved in an accident, and sustained no damage to his vehicle, among other things.2 We disagree.

*905The jury also heard the following testimony:

> • Simmons felt his vehicle shudder when appellant backed into him;

> • Simmons heard a pop and crack at the same time;

> • While following Jackson, Simmons sounded his horn and flashed his lights about four or five times each;

> • Simmons pulled alongside Jackson, rolled down his window and asked, "are you going to stop?" and

> • The officer saw damage to the front of Simmons's vehicle.

Intent may be inferred from circumstantial evidence. *Darkins v. State* , 430 S.W.3d 559, 565 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). While appellant provided evidence that he did not know he was involved in an accident with Simmons, the jury weighed this evidence against the above evidence.

The jury has the responsibility of weighing all the evidence, resolving any evidentiary conflicts, and drawing reasonable inferences from the evidence presented at trial. *See**Garcia v. State* , 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). In light of the evidence presented and the reasonable inferences the jury was free to make, we conclude that the evidence is legally sufficient to show that appellant was knowingly involved in a traffic accident. We overrule appellant's first issue.

**II. Appellant was not egregiously harmed by the trial court's definition of "knowingly" submitted to the jury.**

In his second issue, appellant argues that he was egregiously harmed because the charged offense is a "circumstances of conduct" offense and the court's charge did not limit the definition of "knowingly" to the circumstances surrounding his failure to stop and give information. The Court of Criminal Appeals has recognized three categories of offenses: "result of conduct," "nature of conduct," or "circumstances of conduct." *Robinson v. State* , 466 S.W.3d 166, 170 (Tex. Crim. App. 2015). Circumstances of conduct offenses prohibit otherwise innocent behavior that becomes criminal only under specific circumstances. *Id.*

In analyzing a jury charge issue, our first duty is to decide whether error exists. *Middleton v. State* , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If so, we then analyze that error for harm. *Id.* When a defendant fails to object to the charge, we will reverse only when the error was so egregious and created such harm that the defendant did not have a fair trial. *Bluitt v. State* , 137 S.W.3d 51, 52-53 (Tex. Crim. App. 2004) ; *Almanza v. State* , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). To determine whether a defendant has sustained egregious harm from a non-objected-to instruction, appellate courts consider (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information. *Bluitt* , 137 S.W.3d at 52-53 ; *Almanza* , 686 S.W.2d at 171.

Appellant complains that the trial court's definition of "knowingly" in the charge was too broad because it defined the term as involving knowledge of the result, nature, and circumstances of conduct and thus was not limited only to circumstances of conduct.3 Presuming that *906the failure to stop and give information is a circumstances of conduct offense and that the court erred in not limiting the definition of "knowingly" as asserted by appellant, we conclude the error did not create harm such that the defendant did not have a fair trial.4

Appellant concedes that the focus of the evidence and the contested issues at trial were directed at whether he knew he had been in an accident. He further concedes that closing arguments also centered on whether he was knowingly involved in an accident. Appellant argues only that the charge should have omitted language involving nature of conduct and result of conduct offenses.5 He does not argue that the state of the evidence, arguments of counsel, or any other relevant information advanced an erroneous theory. *See**Bluitt* , 137 S.W.3d at 52-53. We conclude that appellant did not meet his burden of showing egregious harm and overrule his second issue.

**III. Challenged statutes imposing court costs are constitutional.**

In his third through fifth issues, appellant challenges the constitutionality of statutes imposing court costs for district attorney's, jury's, and sheriff's fees. Appellant did not object to the imposition of court costs in the trial court. The costs were assessed in open court but not itemized in the judgment. The cost bill was generated the same day as the judgment, but it is not clearly incorporated into the judgment. The judgment includes a blank for "court costs," which states "$ as assessed."

Convicted defendants may object to the assessment of mandatory court costs against them for the first time on appeal when the judgment does not contain an itemization of the imposed court costs. *London v. State* , 490 S.W.3d 503, 507 (Tex. Crim. App. 2016) ; *Bowden v. State* , 502 S.W.3d 913, 914 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd). We presume that the challenged costs were "mandatory court costs" and thus preservation of these complaints was not required.

We review the constitutionality of a criminal statute de novo as a question of law. *Ex parte Lo* , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature was neither unreasonable nor arbitrary in enacting it. *See**Rodriguez v. State* , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) ; *Eugene v. State* , 528 S.W.3d 245, 249 (Tex. App.-Houston [14th Dist.] 2017, no pet.) ; *see also* Tex. Gov't Code § 311.021 (requiring courts to presume that "compliance" with Texas and United States Constitutions was intended). We must uphold the statute if we can apply a reasonable construction that will render it constitutional. *Ely v. State* , 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979). We make every reasonable presumption in favor of the statute's constitutionality unless the contrary is clearly shown. *Peraza v. State* , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). The party challenging the statute has the burden to establish its unconstitutionality. *Id.* ; *Rodriguez* , 93 S.W.3d at 69.

*907Appellant has made a facial challenge to the constitutionality of the statutes in question. A facial challenge is an attack on a statute itself as opposed to a particular application. *Peraza* , 467 S.W.3d at 514. In such a challenge, the challenger must establish that "no set of circumstances exists under which the statute would be valid." *Id.* ; *see also**State v. Rosseau* , 396 S.W.3d 550, 557 (Tex. Crim. App. 2013) (holding party asserting a facial challenge "must establish that the statute always operates unconstitutionally in all possible circumstances"). Because a facial challenge attacks a statute's validity in all circumstances, it is "the most difficult challenge to mount successfully." *See**Santikos v. State* , 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).

In analyzing facial challenges to court costs, we consider only applications of a statute that it authorizes or prohibits. *See**Peraza* , 467 S.W.3d at 515. We do not evaluate the facial constitutionality of a court cost by theorizing where the funds collected and distributed might be spent. *See**id.*

Appellant claims the fees at issue violate the separation of powers provision of the Texas Constitution. The Texas Constitution expressly guarantees the separation of powers among the three branches of government. Tex. Const. art. II, § 1 ; *Salinas v. State* , 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). Article II, section 1 of the Texas Constitution states the following:

> 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.

This section ensures that the powers granted to one governmental branch may be exercised only by that branch, to the exclusion of the other branches. *Ex parte Lo* , 424 S.W.3d at 28. When one branch of government assumes or is delegated a power more properly attached to another branch, that assumption or delegation of power violates the separation-of-powers provision. *Salinas* , 523 S.W.3d at 106-07. If a statute turns the courts into tax gatherers, then the statute delegates to the courts a power more properly attached to the executive branch; however, the collection of fees in criminal cases is a part of the judicial function if the statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes. *See**id.* at 106-07 (holding that consolidated fee statute was unconstitutional as to state government accounts for "counseling abused children" and "comprehensive rehabilitation"). In other words, a reviewing court must determine whether the fee is a disguised tax on a criminal defendant (which is unconstitutional) or a fee for a legitimate criminal justice purpose (which is constitutional). *Allen v. State* , No. 01-16-00768-CR, --- S.W.3d ----, ----, 2018 WL 4138965, at *6 (Tex. App.-Houston [1st Dist.] Aug. 30, 2018, pet. granted).

The earliest statement by the Court of Criminal Appeals on the constitutionality of court costs disallowed a library fee because it was neither necessary nor incidental to the trial of a criminal case. *Ex parte Carson* , 143 Tex. Crim. 498, 506, 159 S.W.2d 126, 130 (1942). The high court later modified the *Carson* test, rejecting *908the requirement under *Carson* that "to pass constitutional muster, the statutorily prescribed court cost *must* be 'necessary' or 'incidental' to the 'trial of a criminal case.' " *Peraza* , 467 S.W.3d at 517 (emphasis added). The court stated that court costs should be related to the recoupment of costs of judicial resources, but it found the terms "necessary or incidental" too limiting. *Id.* The court did not say that necessary or incidental costs were unconstitutional, however. Court costs that satisfy *Carson* continue to be constitutional.

Our legislature has developed statutorily prescribed court costs with the intention of reimbursing the judicial system for costs incurred in the administration of the criminal justice system. *Id.* Although not necessary to or an incidental expense of the actual trial of a criminal case, the costs may nevertheless be directly related to the recoupment of costs of judicial resources expended in connection with the prosecution of criminal cases within our criminal justice system. *See id.*

In addition, if the statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes, then the statute allows for a constitutional application and does not violate the separation of powers provision. *Id.* (tracing allocation of funds collected as costs for DNA testing); *see also**Johnson v. State* , No. 14-16-00658-CR, 2018 WL 4925456, at *5 (Tex. App.-Houston [14th Dist.] Oct. 11, 2018, no pet. h.). A "criminal justice purpose" is one that "relates to the administration of our criminal justice system" and should be evaluated on a statute-by-statute/case-by-case basis. *Peraza* , 467 S.W.3d at 517-18 ; *Johnson* , 2018 WL 4925456, at *5.

With this framework in mind, we address each challenged statute in turn. Appellant argues only that the costs at issue violate the separation of powers provision because they are allocated into the county's general fund and "allow spending for purposes other than legitimate criminal justice purposes."

**A. The district attorney's fee is constitutional.**

In his third issue, appellant challenges the district attorney fee "to the extent that it allocates funds to the county's general fund" as an impermissible tax collected by the judiciary that is not expended for a legitimate criminal justice purpose. Code of Criminal Procedure article 102.008(a) imposes a $25 fee on a defendant convicted of a misdemeanor "for the trying of the case by the district or county attorney." Tex. Code Crim. Proc. art. 102.008(a). Another panel of this court recently overruled a facial constitutional challenge to article 102.008(a). *Moliere v. State* , No. 14-17-00594-CR, --- S.W.3d ----, ----, 2018 WL 6493882, at *6 (Tex. App.-Houston [14th Dist.] Dec. 11, 2018, no pet. h.). We concluded that the statute passes constitutional muster because it is collected to reimburse the prosecutor for costs incurred in trying the case as a "recoupment of costs" under *Peraza* . *See**id.* (citing *Peraza* , 467 S.W.3d at 517 ). We overrule appellant's third issue.

**B. The jury's fee is constitutional.**

In his fourth issue, appellant challenges the jury's fee "to the extent that it allocates funds to the county's general fund" as an impermissible tax collected by the judiciary that is not expended for a legitimate criminal justice purpose. Article 102.004(a) imposes a $40 fee on a defendant convicted by a jury in a county court, as here. Tex. Code Crim. Proc. art. 102.004(a). The State argues that an interconnected statute in the Local Government *909Code directs jury's fee funds to be deposited with the county treasurer. *See* Tex. Local Gov't Code § 113.004(b)(1) ; *see also* Tex. Att'y Gen. Op. No. GA-0262, at *4 (2004) (noting that jury's fees are to be deposited into a special fund that must be kept separate from other treasury funds).

Another panel of this court recently overruled a facial constitutional challenge to article 102.004(a). *Johnson* , 2018 WL 4925456, at *7-8. We held that although article 102.004(a) does not allocate the jury's fee to any specific fund or direct how the funds collected are to be expended, section 113.004 of the Local Government Code does. *Id.* at *7. Section 113.004 requires the $40 jury's fee to be deposited into a fund designated for jury's fees, among other things, and used for the payment of claims registered in the class of claims corresponding to that fund.6*Id.* We concluded that section 113.004 not only allows but mandates that jury's fees collected under article 102.004 be used for legitimate criminal justice purposes. *Id.*

Consistent with our opinion in *Johnson* , we conclude that appellant has not met his burden to show that the jury's fees collected under the statute cannot be used for legitimate criminal justice purposes in all possible circumstances. *See**id.* We overrule appellant's fourth issue.

**C. The sheriff's fee is constitutional.**

In his fifth and final issue, appellant also challenges the "summoning witness/mileage" sheriff's fee "to the extent that it allocates funds to the county's general fund" as an impermissible tax collected by the judiciary that is not expended for a legitimate criminal justice purpose.7 Article 102.011 imposes a $5 fee on a defendant convicted of a misdemeanor "for summoning a witness" and 29 cents per mile "for mileage required of an officer to perform a service listed in this subsection and to return from performing that service." Tex. Code Crim. Proc. § 102.011(a)-(b). The State argues article 102.011 is constitutional because it directs the funds to be expended for the legitimate criminal justice purpose of recouping "expenses associated with the services provided by peace officers in relation to a defendant's criminal trial."8 We agree.

Appellant relies on our sister court's opinion in *Hernandez v. State* , 562 S.W.3d 500 (Tex. App.-Houston [1st Dist.] 2017, no pet.), in which the court held that under *Salinas* , a statute imposing a district attorney's fee was unconstitutional "to the extent that it allocates funds to the county's general fund because those funds allow spending for purposes other than legitimate criminal justice purposes." *Id.* at 511 (citing *Salinas* , 523 S.W.3d at 109 n.26 ). However, the holding in *Salinas* does not render every court cost that goes into a general fund unconstitutional.

In *Salinas* , the defendant challenged the assessment of court costs in a consolidated *910fee on the basis that certain government accounts to which some of the funds were directed-for abused children's counseling and comprehensive rehabilitation-"were not sufficiently related to the court system to be valid recipients of money collected as court costs." 523 S.W.3d at 105-06. The court addressed "whether the two accounts at issue [met] the requirement that the relevant statutes provide for an allocation of funds 'to be expended for legitimate criminal justice purposes.' " *Id.* at 107. As to the comprehensive rehabilitation account, in concluding that the statute at issue was unconstitutional "to the extent it allocate[d] funds to" that account, the court noted that the statute, on its face, did not appear to serve a legitimate criminal justice purpose because the statute did not articulate how the funds would be used for "anything relating to criminal justice." *Id.* at 108-09. As to the abused children's counseling account, the court noted that the program benefitting abused children, to which the funds were directed in the statute, "no longer exists and the funds revert to the General Revenue Fund." *Id.* at 109. Accordingly, the State did not establish that those funds were to be "expended for legitimate criminal justice purposes." *Id.**Salinas* does not support the broad proposition that *every* court cost that is deposited into a general fund is unconstitutional. *See**Allen* , --- S.W.3d at ----, 2018 WL 4138965, at *7 (citing *Salinas* , 523 S.W.3d at 109 n.26 ).

In *Peraza* , the Court of Criminal appeals noted that court costs are "intended by the Legislature" to allow for a "recoupment of the costs of judicial resources expended in connection with the trial of the case," 467 S.W.3d at 517 (citing *Weir v. State* , 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) ), and it held that permissible "court costs should be related to the recoupment of costs of judicial resources." *Id.* That language controls our analysis.

We conclude the tracing of accounts through various statutes is unnecessary for costs that are "related to the recoupment of costs of judicial resources." *See**id.* Here, the statute explicitly directs the payment of the sheriff's fee "for services performed" in connection with the recoupment of costs of judicial resources, specifically, the costs of summoning witnesses for criminal trials. *See* Tex. Code Crim. Proc. § 102.011(a)-(b). Because the sheriff's fee is an actual recoupment of the out of pocket expenses incurred for summoning witnesses and for associated mileage, we conclude that appellant has not met his burden to show that the sheriff's fees collected under the statute cannot be used for legitimate criminal justice purposes in all possible circumstances.9 We overrule appellant's fifth issue.

***Conclusion***

Concluding that the evidence was legally sufficient to support appellant's conviction, appellant did not prove he was egregiously harmed by the trial court's failure to limit the definition of "knowingly" in the jury charge, and the court costs assessed against appellant are constitutional, we affirm.

( Frost, C.J., concurring and dissenting).

**CONCURRING AND DISSENTING OPINION**

Kem Thompson Frost, Chief Justice

I agree with the majority that appellant's first and second issues lack merit, *911and that this court should affirm appellant's conviction and sentence. This court's recent precedent in *Moliere v. State* binds this panel to overrule appellant's third issue, in which he asserts that the district-attorney fee imposed in article 102.008(a) of the Texas Code of Criminal Procedure facially violates the Texas Constitution's separation-of-powers clause.1 Though I stand by my dissenting opinion in *Johnson v. State* , the majority correctly determines that the *Johnson* precedent binds this panel to overrule appellant's fourth issue, in which he asserts that the jury fee imposed in article 102.004(a) of the Texas Code of Criminal Procedure facially violates the Texas Constitution's separation-of-powers clause.2

I part ways with the majority as to the analysis of the fifth issue, in which appellant asserts that article 102.011(a)(3) and article 102.011(b) of the Texas Code of Criminal Procedure facially violate the Texas Constitution's separation-of-powers clause. Though the majority concludes otherwise, under binding precedent from the Court of Criminal Appeals, to show that any court-cost statute on its face violates the separation-of-powers clause, a challenger need only show that neither the court-cost statute nor any interconnected statute directs that the funds collected under the court-cost statute be spent for a legitimate criminal-justice purpose.

In his fifth issue, appellant asserts that article 102.011(a)(3) and article 102.011(b) facially violate the Texas Constitution's separation-of-powers clause because each statutory fee constitutes an impermissible tax collected by the judiciary, rather than a legitimate court cost. The parties have not cited and research has not revealed any binding precedent addressing this issue.3

Article 102.011(a)(3) imposes on a defendant convicted of a felony or a misdemeanor a $5 fee for each witness summoned by a peace officer in the case (the "witness-summoning fee").4 If a defendant must pay a fee under article 102.011(a), then article 102.011(b) requires the defendant to "also pay 29 cents per mile for mileage required of an officer to perform a service listed in [ article 102.011(a) ] and to return from performing that service" (the "mileage fee").5 Appellant's argument amounts to a facial challenge to each statute's constitutionality. Appellant contends that each statute violates the separation-of-powers clause because each statute lacks the requisite directing language - neither statute directs that the funds collected be expended *912for something that is a legitimate criminal-justice purpose.

*Preservation-of-Error Analysis*

The trial court ordered in its judgment that appellant pay all court costs. The trial court did not impose any court costs in open court, and the judgment does not contain an itemization of the court costs. The Court of Criminal Appeals permits an appellant in this scenario to challenge the constitutionality of article 102.011(a)(3) and article 102.011(b) for the first time on appeal, so appellant did not need to preserve error in the trial court to get appellate review of the challenges he presents today.6

*Facial-Challenge Analysis*

We review the constitutionality of a criminal statute de novo as a question of law.7 Because one making a facial challenge attacks the statute itself as opposed to a particular application, the challenger must show that no set of circumstances exists under which the challenged statutes would be valid.8 Importantly, under the proper facial-challenge analysis, this court is to consider only applications in which the challenged statute actually authorizes or prohibits conduct.9

*The Texas Constitution's Separation-of-Powers Clause*

Our state constitution expressly guarantees the separation of powers among Texas's three branches of government.10 Article II, section 1 states:

> 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. This foundational guarantee assures that the powers the people of Texas have granted to one governmental branch will not be usurped by another but secured exclusively for the intended branch.11 Simply put, the three branches of government must stay within their constitutionally designed lanes.12 When one branch assumes or is delegated a power more properly attached to another branch, that action violates the separation-of-powers clause.13 If a statute turns the courts into tax gatherers, then the statute gives to the courts a power more properly attached to the executive branch.14

*The Court of Criminal Appeals's Opinion in Peraza*

This court should look to the Court of Criminal Appeals's precedent to determine the legal standard for analyzing appellant's *913constitutional challenges. In *Peraza v. State* , the Court of Criminal Appeals reviewed its 1942 opinion in *Ex parte Carson* , in which the high court found a $1 library fund court cost invalid as neither "necessary nor incidental to the trial of a criminal case."15 Though the *Carson* case did not involve an allegation that the court cost violated the Texas Constitution's separation-of-powers clause, the court of appeals in *Peraza* drew guidance from the *Carson* precedent in deciding that the statute in *Peraza* violated the Texas Constitution's separation-of-powers clause.16 On review, the Court of Criminal Appeals concluded that "necessary and incidental to the trial of a criminal case" should not be the legal standard for determining whether court-cost statutes defy the separation-of-powers clause.17 The high court reasoned that the rejected standard would be "too limiting" and would "ignore the legitimacy of costs that, although not necessary to, or an incidental expense of, the actual trial of a criminal case, may nevertheless be directly related to the recoupment of costs of judicial resources expended in connection with the prosecution of criminal cases within our criminal justice system."18

The *Peraza* court held that, "if the statute under which court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal-justice purposes, then the statute allows for a constitutional application that will not render the courts tax gatherers in violation of the separation of powers clause."19 For the purposes of this legal standard, the *Peraza* court stated that a criminal-justice purpose is one that relates to the administration of the criminal-justice system and that courts must determine the legitimacy of a purported criminal-justice purpose on a statute-by-statute, case-by-case basis.20 The *Peraza* court also emphasized that the challenger takes on the burden to show that the statute operates unconstitutionally in every possible circumstance.21 The *Peraza* court signaled that the challenger's burden includes showing that no scenario exists under which the statute or an interconnected statute would provide for an allocation of the court costs to be used for legitimate criminal-justice purposes.22

In *Peraza* , the challenged statute required that the court costs collected to be sent to the comptroller and then required the comptroller to deposit 35 percent of the funds into the state treasury to the credit of the state highway fund and the remaining 65 percent to go to the credit of the criminal-justice planning account in the general revenue fund.23 The *Peraza* court noted that article 102.056 of the Code of Criminal Procedure requires that funds in the criminal-justice planning account be used to reimburse law-enforcement agencies for expenses incurred in collecting a DNA specimen from every person charged *914with certain crimes.24 Even if the court costs deposited into the criminal-justice planning account were used to fund criminal-justice projects unrelated to managing the statewide DNA database, the funds still would be used for legitimate criminal-justice purposes.25

As to the funds deposited into the state treasury to the credit of the state highway fund, Government Code section 411.145 requires that these funds be used to defray the cost of administering the part of the Government Code governing the collection and management of DNA samples, which the *Peraza* court deemed a legitimate criminal-justice purpose.26 So, the *Peraza* court held that the challenger had not met his burden of showing that it was impossible for the court-cost statute to operate constitutionally under any circumstance.27 Notably, the court-cost statute challenged in *Peraza* did not involve the recoupment of costs necessary and incidental to the trial of a criminal case.28 Nonetheless, the *Peraza* court articulated a single legal standard for deciding whether a challenger has shown that a court-cost statute facially violates the Texas Constitution's separation-of-powers clause, and the high court did not say that this standard would differ depending on the type of court-cost statute.29

*The Court of Criminal Appeals's Opinion in Salinas*

Two years after *Peraza* , in *Salinas v. State* , the Court of Criminal Appeals addressed the constitutionality of a statute requiring every convicted felon to pay $133 as a court cost.30 Though the statute contained an express provision allocating the court costs among various accounts, the high court concluded that two of the accounts did not qualify as an allocation of funds to be expended for legitimate criminal-justice purposes and, to that extent, deemed the statute facially unconstitutional.31

The *Salinas* court said that it was applying the legal standard from *Peraza.*32 As to the legal standard required to show that a court-cost statute facially violates the separation-of-powers clause, the teachings of *Peraza* mirror the teachings of *Salinas.*33 Yet, the *Salinas* court used different words to describe this legal standard.34 The *Peraza* court spoke in terms of statutes "provid[ing] for an allocation of such court costs to be expended for a legitimate criminal justice purpose" while the *Salinas* court stated that " *Peraza* requires that the relevant statutes direct that the funds be used for something that is a legitimate *915criminal justice purpose."35 In finding the *Salinas* statute unconstitutional in part, the high court pointed to the failure of any statute to direct that the court costs be used for a legitimate criminal-justice purpose and concluded that this failure alone showed that the statute imposing the court cost facially violated the separation-of-powers clause:

> Because the constitutional infirmity in this case is the statute's failure to *direct* the funds to be used in a manner that would make it a court cost (i.e., for something that is a [legitimate] criminal justice purpose), the statute operates unconstitutionally every time the fee is collected, making the statute unconstitutional on its face.36

The *Salinas* court stressed in broad language that it found the statute facially unconstitutional because the statute did not direct the funds to be used for a legitimate criminal-justice purpose.37 The high court stated that courts should base the determination of what constitutes a legitimate criminal-justice purpose on what the governing statute says about the intended use of the funds, not on whether the funds actually are used for a legitimate criminal-justice purpose.38

The *Salinas* case did not involve a statute under which the court recoups costs that are necessary and incidental to the trial of a criminal case, nor did *Salinas* involve a statute that said nothing about the allocation of the court costs collected.39 Even so, the *Salinas* court used expansive language and did not mention any exception for such statutes. *See id.* Presuming for argument's sake that appellant's separation-of-powers challenge does not fall within the *Salinas* court's holding, the high court's statements retain their relevance as judicial dicta because they constitute deliberate and unequivocal declarations of the law made after mature consideration and for future guidance of the bench and bar.40 These judicial dicta bind this court.41

*Salinas* compels this court to apply the legal standard in that case to all facial, separation-of-powers challenges to court-cost statutes.42 In criminal appeals, this court must follow precedent from the Court of Criminal Appeals.43 We may not remodel the legal standard. We lack the authority to to add to or take away from *916the high court's precedent.44 If the high court sees reason to make changes, the high court can do so. Until then, in analyzing the constitutionality of court-cost statutes, we must look to the Court of Criminal Appeals's unadulterated standard: to show that a court-cost statute facially violates the separation-of-powers clause, a challenger need only show that neither the court-cost statute nor any interconnected statute directs that the funds collected under the court-cost statute be expended for something that is a legitimate criminal-justice purpose.45

The *Salinas* standard applies to appellant's challenges to article 102.011(a)(3) and article 102.011(b), even presuming that each statute involves recoupment of costs incurred by the county that are necessary and incidental to the trial of a criminal case, and even though each statute is silent as to the allocation of the court costs collected.46 Though the *Salinas* legal standard and the *Peraza* legal standard feature different wording, they do not conflict. Nor is the *Salinas* legal standard inconsistent with the result in *Peraza* because the *Peraza* court indicated that the court-cost statutes and interconnected statutes directed that the funds collected be expended for something that is a legitimate criminal-justice purpose.47

*The Statutory Language*

Article 102.011, entitled "Fees for services of Peace Officers," provides:

> (a) A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer:

> ...

> (3) $5 for summoning a witness;

> ...

> (j) In this article, "conviction" has the meaning assigned by Section 133.101, Local Government Code.

> (b) In addition to fees provided by Subsection (a) of this article, a defendant required to pay fees under this article shall also pay 29 cents per mile for mileage required of an officer to perform a service listed in this subsection and to return from performing that service. If the service provided is the execution of a writ and the writ is directed to two or more persons or the officer executes more than one writ in a case, the defendant is required to pay only mileage actually and necessarily traveled. In calculating mileage, the officer must use the railroad or the most practical route by private conveyance ... This subsection applies to:

> (1) conveying a prisoner after conviction to the county jail;

> (2) conveying a prisoner arrested on a warrant or capias issued in another county to the court or jail of the county; and

> (3) traveling to execute criminal process, to summon or attach a witness, and to execute process not otherwise described by this article.48

Article 102.011 does not allocate the witness-summoning fee or the mileage fee to any specific fund, nor does the statute give any direction as to how the funds collected *917should be expended.49 Under article 102.011 's unambiguous language, the statute does not direct that the funds collected be expended for something that is a legitimate criminal-justice purpose.50

That funds *could* be used for a legitimate criminal-justice purpose does not satisfy the *Salinas* legal standard.51 In assessing what constitutes a legitimate criminal-justice purpose, we must look to what article 102.011 and any interconnected statute say about the intended use of the funds - not to the *actual* use of the funds.52 The *Salinas* court concluded that directing court costs to fund the "Comprehensive Rehabilitation" account - a general-revenue fund dedicated to providing rehabilitation services - violated the Texas Constitution's separation-of-powers clause.53 In rejecting the notion that the account helps people with rehabilitation from injuries that easily could be caused by crime, the Court of Criminal Appeals noted that the statute did not (1) describe the functions or services being funded, (2) impose a criminal-justice restriction on the use of the funds, or (3) mention a criminal-justice purpose.54 According to *Salinas* , to pass muster under the separation-of-powers clause, article 102.011 or an interconnected statute must direct that the funds collected be expended for something that is a legitimate criminal-justice purpose.55 The statute's constitutionality depends on it.

Like Local Government Code section 133.102, which the Court of Criminal Appeals found unconstitutional in *Salinas* , article 102.011 fails to limit the use of the funds collected to serving a criminal-justice purpose.56 Article 102.011 does not say a word about how the collected funds should be spent or where they should be held.57 Under article 102.011 's plain language, the statute does not direct that the funds collected be expended for something that is a legitimate criminal-justice purpose.58

The majority concludes that article 102.011 explicitly directs the payment of the witness-summoning fee and mileage fee for services performed in connection with the recoupment of the costs of summoning witnesses for criminal trials.59 The majority also concludes that the witness-summoning fee "is an actual recoupment of the out of pocket expenses incurred for summoning witnesses and for associated mileage."60 But the majority uses its own metric to measure constitutionality.

This court cannot insert saving language into the statute nor turn away from the high court's standard. Changing the metric could change the outcome.

*918Article 102.011(a)(3) simply says that "[a] defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer: ... $5 for summoning a witness."61 Under article 102.011(b), a defendant required to pay fees under article 102.011(a) also must pay 29 cents per mile for mileage required of an officer to perform a service listed in article 102.011(a) and to return from performing that service.62 Under the statute's plain language the convicted defendant must pay a fee based a peace officer's services.63 The statute does not provide, as the majority concludes, that the witness-summoning fee or the mileage fee is an actual recoupment of out-of-pocket expenses incurred for summoning witnesses and for associated mileage.

The statute does not state that the purpose of the fee is to reimburse the peace officer.64 Article 102.011 does not state that the funds collected under article 102.011(a)(3) or article 102.011(b) should be expended for the reimbursement of any peace officer.65 The fact that a peace officer's services trigger these fees does not mean that the purpose of the fee is to reimburse the peace officer or his employer. Even if reimbursement of a peace officer or the peace officer's employer would be for a legitimate criminal-justice purpose, article 102.011 does not direct that the funds collected under article 102.011(a)(3) be expended for this purpose.66

A divided panel of the First Court of Appeals recently concluded in the *Allen* case that article 102.011(a)(3) does not facially violate the separation-of-powers clause.67 That court did not address whether article 102.011(a)(3) satisfies the *Salinas* standard but suggested that the statute does not.68 Taking a different approach, the *Allen* court reasoned that the *Salinas* standard does not apply to court costs used to reimburse criminal-justice expenses incurred in connection with that criminal prosecution.69 According to the *Allen* court, the *Peraza* court held "that at least two types of fees assessed as court costs are constitutionally permissible: (1) court costs to reimburse criminal-justice expenses incurred in connection with that criminal prosecution and (2) court costs to be expended in the future to off-set future criminal-justice costs."70 The *Allen* court reasoned that *Peraza* created one legal standard for court costs that reimburse expenses incurred in connection with that criminal prosecution and another legal standard for all other court costs.71 That is not what *Peraza* says.

According to the *Allen* court, the *Salinas* court dealt with the second legal standard and did not change the first legal *919standard under *Peraza.*72 Applying an analysis similar to the *Allen* court, today the majority likewise revamps the high court's legal standard, pronouncing that if a statute imposes court costs related to the recoupment of costs of judicial resources, then under *Peraza* the statute does not facially violate the Texas Constitution's separation-of-powers provision, even if no statute directs the funds collected to be used for something that is a legitimate criminal-justice purpose.73

The *Allen* court and the majority have misinterpreted *Peraza* and *Salinas.* The *Peraza* court articulated a single legal standard for deciding whether a party has shown that a court-cost statute facially violates the Texas Constitution's separation-of-powers clause, and the high court did not state that this standard would vary depending on the type of court-cost statute under scrutiny.74 The *Salinas* court re-stated this single legal standard in a similar way, using slightly different words.75 Therefore, the *Salinas* standard applies to appellant's fourth issue.76 Under *Salinas* , the failure of article 102.011 or an interconnected statute to direct the funds collected to be used for something that is a legitimate criminal-justice purpose would mean article 102.011(a)(3) facially violates article II, section I of the Texas Constitution.77

This court should (1) conclude that under precedent from the Court of Criminal Appeals, to be constitutional each challenged statute or a statute interconnected with the challenged statute must direct the funds collected to be used for something that is a legitimate criminal-justice purpose; (2) hold that neither article 102.011(a)(3) nor article 102.011(b) directs the funds collected to be so used; and (3) determine whether any interconnected statute directs that the funds collected be used for something that is a legitimate criminal-justice purpose. Because the court fails to do so, I respectfully dissent.

1

The estimate to repair the damage to Simmons's car was $577.97.

2

Appellant also contends that the culpable mental state of "intent" does not apply to the offense of failure to stop and give information. We need not reach this issue because we conclude there is legally sufficient evidence to support the jury's finding that appellant knowingly committed the offense.

3

The definition of "knowingly" included in the charge follows:

> A person acts knowingly, or with knowledge, with respect to the nature of his conduct, or to circumstances surrounding his conduct, when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

4

Appellant does not contend that any Texas court has categorized the offense of failure to stop and give information as a circumstances of conduct offense.

5

Appellant also complains that the term "intentional" was not defined in the charge but does not elaborate on how such purported error resulted in egregious harm.

6

Amounts in the fund may not be transferred from the payment of claims registered in that fund unless there is an excess amount in that class. *Johnson* , 2018 WL 4925456, at *7 (citing Tex. Loc. Gov't Code § 113.004(d) ).

7

Appellant argues the fee goes to the general fund of the county and can be used for any purpose, unless the service is provided by a peace officer employed by the State of Texas, in which case 20% of the money is sent to the State for deposit in the State's General Revenue Fund (in this case, that would be $3). Appellant cites a 2014 report of the Texas Office of Court Administration to support his argument.

8

The State also suggests that interconnected statutes allocate the witness summoning fees to a specific fund for a specific purpose, weaving a complicated path from a Texas Constitutional mandate to several sections of the Local Government Code for the placement of funds.

9

Our sister court similarly concluded that a "summoning witness/mileage fee" assessed under article 102.011 was used to recoup out of pocket expenses incurred in the prosecution of the convicted defendant who was assessed the fee being challenged and thus the fee was "unquestionably for a legitimate justice purpose." *Allen* , --- S.W.3d at ---- - ----, 2018 WL 4138965, at *8-9.

1

*See**Moliere v. State* , No. 14-17-00594-CR, --- S.W.3d ----, ---- - ----, 2018 WL 6493882, at *4-7, (Tex. App.-Houston [14th Dist.] Dec. 11, 2018, no pet. h.).

2

*See**Johnson v. State* , No. 14-16-00658-CR, 562 S.W.3d 168, 175-80, 2018 WL 4925456, at *4-8, (Tex. App.-Houston [14th Dist.] Oct. 11, 2018, no pet. h.) (majority opinion rejecting claim that the jury fee imposed in article 102.004(a) of the Texas Code of Criminal Procedure facially violates the Texas Constitution's separation-of-powers provision); *Johnson* , 2018 WL 4925456, at *9-16 (Frost, C.J. dissenting).

3

The only appellate court that appears to have addressed whether article 102.011(a)(3) or article 102.011(b) of the Texas Code of Criminal Procedure facially violates the Texas Constitution's separation-of-powers provision is the First Court of Appeals. In *Allen v. State* that court held that article 102.011(a)(3) does not facially violate the Texas Constitution's separation-of-powers provision. *See* No. 01-16-00768-CR, --- S.W.3d at ---- - ----, 2018 WL 4138965, at *4-9 (Tex. App.-Houston [1st Dist.] Aug. 30, 2018, pet. granted).

4

*See* Tex. Code Crim. Proc. Ann. art. 102.011(a)(3) (West, Westlaw through 2017 1st C.S.).

5

*Id.* art. 102.011(b) (West, Westlaw through 2017 1st C.S.).

6

*See**Johnson v. State* , 537 S.W.3d 929, 929 (Tex. Crim. App. 2017) (per curiam); *London v. State* , 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).

7

*Ex parte Lo* , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).

8

*Peraza v. State* , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).

9

*Id.*

10

Tex. Const. art. II, § 1 ; *Salinas v. State* , 523 S.W.3d 103, 106 (Tex. Crim. App. 2017).

11

*Ex parte Lo* , 424 S.W.3d at 28.

12

*See id.*

13

*Salinas* , 523 S.W.3d at 106-07.

14

*Id.* at 107.

15

*Ex parte Carson* , 143 Tex.Crim. 498, 159 S.W.2d 126, 130 (Tex. Crim. App. 1942) ; *see**Peraza* , 467 S.W.3d at 515-17.

16

*See**Peraza* , 467 S.W.3d at 512-13 ; *Ex parte Carson* , 159 S.W.2d at 127-30.

17

*See**Peraza* , 467 S.W.3d at 517.

18

*Id.*

19

*Id.* (footnote omitted).

20

*Id.* at 517-18.

21

*See**id.* at 516.

22

*See**id.* at 517-19.

23

*See* Tex. Code Crim. Proc. Ann. art. 102.020(e),(h) (West 2010); *Peraza* , 467 S.W.3d at 519-21.

24

*See**Peraza* , 467 S.W.3d at 518-19.

25

*See**Peraza* , 467 S.W.3d at 519 (concluding that "[t]he statutory scheme allocating these resources to the criminal-justice planning account are required, via interconnected statutory provisions, to be expended for legitimate criminal-justice purposes").

26

*See*Tex. Gov't Code Ann. § 411.145 (West 2010) ; *Peraza* , 467 S.W.3d at 519-21.

27

*Peraza* , 467 S.W.3d at 521.

28

*See* Tex. Code Crim. Proc. Ann. art. 102.020 ; *Peraza* , 467 S.W.3d at 518-21.

29

*See**Peraza* , 467 S.W.3d at 513-21.

30

*See*523 S.W.3d 103, 106-10 (Tex. Crim. App. 2017).

31

See *id.*

32

*See**id.* at 107 (reciting legal standard from *Peraza**)* ; *id.* at 109 n. 26 (asserting that the State and the dissenting judges misunderstood *Peraza* and stating what the *Salinas* court concluded is required under *Peraza* ).

33

*See**id.* at 106-10 ; *Peraza* , 467 S.W.3d at 513-21.

34

*See**Salinas* , 523 S.W.3d at 106-10 ; *Peraza* , 467 S.W.3d at 513-21.

35

*Compare**Salinas* , 523 S.W.3d at 109 n. 26, *with**Peraza* , 467 S.W.3d at 517.

36

*Salinas* , 523 S.W.3d at 109 n. 26 (emphasis in original).

37

*See**id.* at 109-10, nn. 26 & 36.

38

*See**id.* at 107.

39

*See**id.* at 106-10.

40

*See**Salinas* , 523 S.W.3d at 106-10 ; *Murray v. State* , 261 S.W.3d 255, 257 (Tex. App. -Houston [14th Dist.] 2008), *aff'd* , 302 S.W.3d 874 (Tex. Crim. App. 2009).

41

*See**Murray* , 261 S.W.3d at 257 ; *see also**Cervantes-Guervara v. State* , 532 S.W.3d 827, 832 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (holding that when the Court of Criminal Appeals "has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation").

42

*See**Salinas* , 523 S.W.3d at 106-10, nn. 26 & 36 ; *Hernandez v. State* , No. 01-16-00755-CR, 562 S.W.3d 500, 509-11, 2017 WL 3429414, at *6-7 (Tex. App.-Houston [1st Dist.] Aug. 10, 2017, no pet. h.) (applying *Salinas* legal standard to court-court statute that was silent as to the allocation of the court costs collected and that involved the recoupment of costs necessary and incidental to the trial of a criminal case).

43

*See**State of Texas ex rel. Vance v. Hatten* , 508 S.W.2d 625, 628 (Tex. Crim. App. 1974) ; *Gardner v. State* , 478 S.W.3d 142, 147 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd).

44

*See**Hatten* , 508 S.W.2d at 628 ; *Gardner* , 478 S.W.3d at 147.

45

*See**Salinas* , 523 S.W.3d at 106-10, nn. 26 & 36 ; *Hernandez* , 562 S.W.3d at 509-11, 2017 WL 3429414, at *6-7.

46

*See**Salinas* , 523 S.W.3d at 106-10, nn. 26 & 36 ; *Hernandez* , 562 S.W.3d at 509-11, 2017 WL 3429414, at *6-7.

47

*See**Peraza* , 467 S.W.3d at 513-21.

48

Tex. Code Crim. Proc. Ann. art. 102.011.

49

*See id.*

50

*See id.* ; *Salinas* , 523 S.W.3d at 106-10, nn. 26 & 36.

51

*See**Salinas* , 523 S.W.3d at 106-10, nn. 26 & 36 ; *Hernandez* , 562 S.W.3d at 509-11, 2017 WL 3429414, at *6-7.

52

*See**Salinas* , 523 S.W.3d at 106-10, nn. 26 & 36 ; *Hernandez* , 562 S.W.3d at 509-11, 2017 WL 3429414, at *6-7.

53

*See**Salinas* , 523 S.W.3d at 107-08.

54

*See**id.* at 108.

55

*See**id.* at 106-10, nn. 26 & 36.

56

*Compare* Local Govt. Code Ann. § 133.102 (West, Westlaw through 2017 1st C.S.) *with* Tex. Code Crim. Proc. Ann. art. 102.011.

57

*See* Tex. Code Crim. Proc. Ann. art. 102.011.

58

*See**Salinas* at 106-10, nn. 26 & 36.

59

*See**ante* at 910.

60

*See id.*

61

Tex. Code Crim. Proc. Ann. art. 102.011(a).

62

*See id.*

63

*See id.*

64

*See id.*

65

*See id.*

66

*See id.*

67

*See**Allen v. State* , No. 01-16-00768-CR, --- S.W.3d ----, ---- - ----, 2018 WL 4138965, at *4-9 (Tex. App.-Houston [1st Dist.] Aug. 30, 2018, pet. granted).

68

*See**id.* at 906-07, 2018 WL 4138965, at *8-9.

69

*See**id.* at 906-07, 2018 WL 4138965, at *7-9.

70

*Id.* at 906, 2018 WL 4138965, at *7.

71

*See id.*

72

*See**id.* at 906-07, 2018 WL 4138965, at *8-9.

73

*See**ante* at 909-10.

74

*See**Peraza* , 467 S.W.3d at 513-21.

75

*See**Salinas* , 523 S.W.3d at 106-10 ; *Peraza* , 467 S.W.3d at 513-21.

76

*See**Salinas* , 523 S.W.3d at 106-10 ; *Peraza* , 467 S.W.3d at 513-21.

77

*See**Salinas* , 523 S.W.3d at 107-10.