Belisario I. LOPEZ, Appellant v. The STATE of Texas, Appellee

NO. 14-17-00205-CR

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

Opinions filed December 20, 2018

Martha Hill Jamison, Justice

Appellant Belisario I. Lopez challenges his capital murder conviction and the assessment of certain court costs against him. Concluding that the evidence is legally sufficient to corroborate accomplice witness testimony, counsel was not ineffective for failing to object during the State's closing argument, and the court costs assessed against appellant are constitutional, we affirm.

***Background***

Three armed men-Jose Rivera ("Capo"), Fernan Santiago Vargas ("Bulto"), and Johnny Enamorado-entered the 45 Smoke Shop. Each carried a loaded weapon. Their plan was to steal drugs and money that Capo believed the shop owner kept at the store.

*883The men left the store without any drugs. But Bulto came out with an additional gun stolen from the store owner, and Enamorado came out with a gunshot wound to his leg that continued to bleed as he entered the getaway car-a blue Hyundai. The store owner was shot five times and died.

Video evidence shows the three men walk into the store with guns. Enamorado testified that appellant cased out the 45 Smoke Shop before the robbery, planned the heist with Capo, and acted as the getaway driver.

Cell phone records show that appellant was at or near the 45 Smoke Shop a week before the murder and that he communicated with Capo many times that day. Similar cell phone record evidence shows appellant's whereabouts the day of the murder. Appellant admitted he had a business relationship with Capo and sold the Hyundai to Bulto.

At trial, appellant presented an alibi that he was with his wife Jeydee Gomez on the day he was allegedly "casing" the 45 Smoke Shop and that he was with his friend Crandall "Troy" Jones, who wanted to borrow his car, on the night of the murder. Gomez and Jones testified that appellant was with them on the respective nights.

During closing arguments, the State attacked the credibility of appellant's alibi and made several statements suggesting that appellant or his counsel or both had asked Gomez and Jones to lie. During closing argument, the State argued: "[A]s I'm sure you've suspected, you've ... been lied to today. Let's talk about Jeydee Gomez, who of her own volition or of being asked by the defendant, she got on that stand and she lied to you."

Later, during the rebuttal portion of the State's closing argument, the prosecutor argued:

> Belisario's credibility. You know, it's a good story that these individuals decide to frame him because they owed him a thousand dollars. But the problem is Belisario and Jeydee and Troy tried just too hard to explain everything. Right? They needed to explain the calls on the 3rd so they put up Jeydee. Let's be truthful here. The 3rd doesn't really matter. I mean, it doesn't. No offense happened on the 3rd. There's communication on the 3rd but no offense happened on the [3]rd. Why put Jeydee up there to lie?

At the end of the rebuttal portion of the State's closing argument, the State argued:

> And ladies and gentlemen of the jury, I submit to you beyond a reasonable doubt that the reason he lied is because he knows he's guilty. Because he doesn't want to go to prison. And the best way to avoid that is to take the stand and lie and ask your wife to lie and ask Troy who works for you and depends on you for a living to lie. And that's what he did. And now that you see hard evidence of that lie, you should be disgusted with him. Disgusted that he would take the stand and take that oath and flat out lie. Regardless of trying to save himself, flat out lie under oath. It's ridiculous, and you all should feel the same disgust that I feel for that.

Appellant's trial counsel did not object to these statements, ask the trial court to instruct the jury to disregard them, or move for a mistrial. The jury found appellant guilty. Appellant received a mandatory sentence of life imprisonment without the possibility of parole.

*884***Discussion***

**I. The evidence is legally sufficient to corroborate accomplice witness testimony.**

In his first issue, appellant challenges the legal sufficiency of the evidence to corroborate the testimony of accomplice witness Enamorado. A conviction obtained in reliance upon accomplice testimony must be supported by sufficient corroborating evidence tending to connect the defendant to the offense committed. Tex. Code Crim. Proc. art. 38.14 ; *Druery v. State* , 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). When reviewing the sufficiency of the evidence to corroborate accomplice testimony, we eliminate the accomplice testimony and then examine the remaining portions of the record to see if there is any evidence that tends to connect the defendant with the commission of the offense. *Malone v. State* , 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) ; *Smith v. State* , 436 S.W.3d 353, 369 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). The corroborating evidence need not, standing alone, rise to the level of proof beyond a reasonable doubt. *Malone* , 253 S.W.3d at 257 ; *Smith* , 436 S.W.3d at 369. Instead, the evidence simply must link the defendant to the commission of the offense and show that rational jurors could conclude that the evidence sufficiently "tended to connect" the defendant to the offense. *Simmons v. State* , 282 S.W.3d 504, 508 (Tex. Crim. App. 2009) ; *Smith* , 436 S.W.3d at 369. Accordingly, corroborative evidence need not be legally sufficient in itself to establish a defendant's guilt. *Casanova v. State* , 383 S.W.3d 530, 538 (Tex. Crim. App. 2012) ; *Smith* , 436 S.W.3d at 369.

Taken in isolation, suspicious circumstances such as the accused's presence at the scene of the crime, motive, or opportunity to commit the crime are not by themselves sufficient to corroborate the testimony of an accomplice witness. *Smith* , 436 S.W.3d at 369. But cumulative suspicious circumstances may tend to connect the accused to the charged offense, even if no circumstances are sufficient to do so individually. *Id.* Viewed collectively, even otherwise insignificant incriminating circumstances may tend to connect a defendant to a crime he is accused of committing. *Id.* Therefore, we "consider the combined force of all of the non-accomplice evidence that tends to connect the accused to the offense." *Smith v. State* , 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). We view the evidence in the light most favorable to the jury's verdict. *Brown v. State* , 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).

According to the indictment, appellant, while committing or attempting to commit robbery, intentionally caused the store owner's death by shooting him with a firearm. A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. Tex. Penal Code §§ 19.02(b), 19.03(a). A person may be convicted as a party to an offense if the offense is committed by the actor's own conduct, by the conduct of another for which the actor is criminally responsible, or both. *See id.* § 7.01(a).

The trial court instructed the jury on the law of parties and the law of conspiracy. *See id.* § 7.02. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, the person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. *Id.* § 7.02(a). If, in the attempt to carry out a conspiracy to commit robbery, capital murder is committed by one of the conspirators, all conspirators are guilty of the capital murder actually committed, though *885having no intent to commit it, if the capital murder was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. *Id.* § 7.02(b).

In addition to Enamorado's accomplice witness testimony, the following evidence was adduced at trial:

> • Appellant testified that he had a preexisting relationship with Capo and Bulto, employed Capo in connection with his renovation business, and sold Bulto the blue Hyundai. Appellant admitted he communicated with Capo on the phone a lot in January, before and after the crime, although appellant claimed that this communication was related to the sale of the car.

> • Two police detectives (Condon and Powell) testified that appellant's and Capo's phones were at or near the 45 Smoke Shop six days before the murder. This testimony was supported by phone mapping illustrations.

> • Condon testified that cell phone record data shows appellant had a flurry of voice communications with Capo and exchanged four texts with Capo six days before the murder.

> • Sergeant Rodriguez testified as to Gomez's text messages extracted from appellant's phone and translated from Spanish. The text messages conflicted with appellant's alibi as it related to his whereabouts six days before the murder. Specifically, Gomez's text messages to appellant during the timeframe that she stated she was with appellant were inconsistent with testimony that Gomez and appellant were together at that time and were inconsistent with the purported subject matter of their communications.

> • Condon testified that cell phone record data showed appellant and Capo exchanged 25 voice calls on the day of the murder and a 1 minute, 39 second call from appellant to Capo at 8:49 p.m., which Condon testified "probably was the call right before they entered [the 45 Smoke Shop]." Condon also testified that appellant was in the general vicinity of the shop on that day.

> • Powell testified that the cell phone record data, after application of Cell Hawk software, showed that (1) appellant's cell phone was at or near a gas station near the scene of the murder shortly before the time of the crime; and (2) appellant's cell phone was at or near the 45 Smoke Shop at the time of the murder.

> • Officers testified as to discrepancies between the data extracted from appellant's cell phone and appellant's cell phone records, suggesting the deletion of the record of calls visible on his cell phone that were made during a four day period before, during, and after the murder.

> • Cell phone records showed that appellant had communicated with Enamorado on two days during the week before the murder, contradicting appellant's testimony that he had not spoken to Enamorado.

Police officer testimony accordingly shows that appellant and Capo both were near the 45 Smoke Shop at the same time, six days before the murder. The evidence also shows a high volume of calls between appellant and Capo that day, and again on the date of the murder, presenting strong circumstantial evidence linking appellant with the crime. *See**886*Longoria v. State* , 154 S.W.3d 747, 758 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (finding that flurry of communications between defendant and perpetrators during course of robbery and immediately afterward presented strong circumstantial evidence that tended to connect defendant to the crime).

Although appellant presented alibi evidence to address the nature of his relationship with Capo and explain why he was in the vicinity of the crime in both instances, the jury had the freedom to measure the credibility of appellant's alibi by assessing the credibility of appellant and his witnesses. The jury heard evidence that contradicted appellant's alibi evidence. The State presented witnesses to demonstrate that appellant had deleted cell phone data from the relevant timeframe. Coupled with the evidence establishing appellant's location six days before the murder and on the day of the murder, evidence of appellant's targeted deletion of cell phone data tends to connect appellant to the murder.

The non-accomplice evidence shows appellant acted with Capo in preparing for the robbery and then took steps to conceal from investigators his communications with Capo and others. After eliminating the accomplice testimony from consideration and examining the remaining evidence, we conclude that the record contains evidence linking appellant to the murder and rational jurors could conclude that this evidence sufficiently tends to connect appellant to this offense. *See**Cerna v. State* , 441 S.W.3d 860, 866 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). Because we conclude non-accomplice evidence tends to connect appellant with the commission of the crime for which he was convicted, we overrule appellant's first issue.

**II. Trial counsel's failure to object to jury arguments was not ineffective assistance.**

In his second issue, appellant asserts that his trial counsel rendered ineffective assistance by failing to object to statements by the State in closing arguments in which the State asserted that appellant had asked Gomez and Jones to lie and implied that appellant's counsel put Gomez on the witness stand to lie. To prevail on an ineffective-assistance claim, a defendant must prove that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. *Strickland v. Washington* , 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable assistance. *Jackson v. State* , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To defeat this presumption, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." *Thompson v. State* , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In the majority of cases, the appellant is unable to meet the first prong of the *Strickland* test-that trial counsel's representation fell below an objective standard of reasonableness-because the record on direct appeal is undeveloped. *Mata v. State* , 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When the record is silent as to trial counsel's strategy, we will not conclude that appellant received ineffective assistance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." *Goodspeed v. State* , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect *887representation. *Robertson v. State* , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

It is not sufficient for the appellant to show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence. *Mata* , 226 S.W.3d at 430. Rather, to establish that the attorney's acts or omissions were outside the range of professionally competent assistance, appellant "must show that counsel's errors were so serious that he was not functioning as counsel." *Patrick v. State* , 906 S.W.2d 481, 495 (Tex. Crim. App. 1995). We may not assume a lack of sound trial strategy on the part of trial counsel merely because we are unable to discern any particular strategic or tactical purpose in counsel's trial presentation. *See**Bone v. State* , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ("A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent.... [A] defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.").

Appellant contends that this is "not a case where this Court should rely upon a 'silent record' in denying Appellant's claim as no conceivable trial strategy exists that explains why trial counsel would want the State to accuse their client and themselves of a potential crime." This argument lacks merit. First, the absence of an objection by appellant's trial counsel hardly equates to a desire by appellant's trial counsel for the prosecution to make the statements. And there is no indication that trial counsel desired or invited these accusations. Second, appellant cites no authority for the proposition that a failure by trial counsel to object to purported improper jury argument, standing alone, would be "so outrageous that no competent attorney would have engaged in it." *See**Goodspeed* , 187 S.W.3d at 392. In fact, we have recognized that the failure to object to improper jury argument may be based on a reasonable trial strategy: to avoid drawing attention to the prosecutor's statement. *See**Orellana v. State* , 489 S.W.3d 537, 550 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) ; *see also**Kuhn v. State* , 393 S.W.3d 519, 539 (Tex. App.-Austin 2013, pet. ref'd).

On these facts, we cannot conclude that trial counsel's failure to object to the statements was conduct so outrageous that no competent attorney would have engaged in it. *See**Goodspeed* , 187 S.W.3d at 392-94 ; *see also**Hebert v. State* , 489 S.W.3d 15, 22-24 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Therefore, appellant has not shown that his trial counsel rendered ineffective assistance. *See**Goodspeed* , 187 S.W.3d at 392-94 ; *Hebert* , 489 S.W.3d at 22-24. We overrule appellant's second issue.

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

In his third and fourth issues, appellant challenges the constitutionality of statutes imposing court costs for jury's and sheriff's fees. Appellant did not object to the imposition of court costs in the trial court. 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 *888that 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.

Appellant 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 *889courts 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 the 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* , 562 S.W.3d 168, 176 (Tex. App.-Houston [14th Dist.] 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* , 562 S.W.3d at 176.

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 "are not used for a criminal justice purpose."

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

In his third issue, appellant challenges the jury's fee 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 district court, as here.

*890Tex. Code Crim. Proc. art. 102.004(a). Appellant argues the fee is unconstitutional because it is directed to the county's general fund.

Another panel of this court recently overruled a facial constitutional challenge to article 102.004(a). *Johnson* , 562 S.W.3d at 178-80. 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 178-79. 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.1*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 third issue.

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

In his fourth issue, appellant challenges the "summoning witness/mileage" sheriff's fee as an impermissible tax collected by the judiciary that is not expended for a legitimate criminal justice purpose. Article 102.011 imposes a $5 fee on a defendant convicted of a felony "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. art. 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 "reimbursement of the peace officer who performed the service of summoning a witness in the case." 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 fee 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, *891did 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.

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.2 We overrule appellant's fourth issue.

***Conclusion***

Concluding that the evidence is legally sufficient to satisfy the accomplice witness rule, appellant has not shown that his trial counsel's failure to object to the prosecutor's statements during closing arguments constitutes ineffective assistance of counsel, and the court costs assessed against appellant are constitutional, we affirm.

( Frost, C.J., dissenting.)

**CONCURRING AND DISSENTING OPINION**

Kem Thompson Frost, Chief Justice

This case presents another challenge to the constitutionality of a court-cost statute. Though the legal arguments have grown familiar, the issue in dispute appears to be one of first impression.

I agree with the majority that appellant's first and second issues lack merit, and that this court should affirm appellant's conviction and sentence. 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 third 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.1 I part ways with the majority as to *892the analysis of the fourth issue, in which appellant asserts that the witness-summoning-fee statute - article 102.011(a)(3) of the Texas Code of Criminal Procedure - facially violates the Texas Constitution's separation-of-powers clause. Though the majority holds 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 expended for something that is a legitimate criminal-justice purpose.

In his fourth issue, appellant asserts that the witness-summoning-fee statute facially violates the Texas Constitution's separation-of-powers clause because the 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.2 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.3 Appellant's argument amounts to a facial challenge to the statute's constitutionality. Appellant contends that article 102.011(a)(3) violates the separation-of-powers clause because the statute does not direct that the funds collected be expended for 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, though the trial court did not impose any court costs in open court, and the judgment does not contain an itemization of the court costs. In this context, appellant may challenge the constitutionality of article 102.011(a)(3) for the first time on appeal.4

*Facial-Challenge Analysis*

We review the constitutionality of a criminal statute de novo as a question of law.5 Because one making a facial challenge attacks the statute itself as opposed to a particular application, the challenger must establish that no set of circumstances exists under which the statute would be valid.6 Under the proper facial-challenge analysis, this court is to consider only applications in which the statute actually authorizes or prohibits conduct.7

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

The Texas Constitution expressly guarantees the separation of powers among Texas's three branches of government.8 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. In this section of the Texas Constitution the people of Texas provide that the powers granted to one governmental branch belong exclusively to that branch and the other branches may not exercise the power.9 When one branch assumes or is delegated a power more properly attached to another branch, that action violates the separation-of-powers clause.10 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.11

*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 constitutional challenge. 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."12 Though the *Carson* case did not involve an allegation that the court cost violated the Texas Constitution's separation-of-powers clause, the intermediate court of appeals in *Peraza* relied upon the *Carson* precedent in determining that the statute in *Peraza* violated the Texas Constitution's separation-of-powers provision.13 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 violate the separation-of-powers clause.14 The high court based this decision on its conclusion 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."15

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 *894the courts tax gatherers in violation of the separation of powers clause."16 For the purposes of this legal standard, a criminal-justice purpose is one that relates to the administration of the criminal-justice system.17 According to the *Peraza* court, we are to determine the legitimacy of a purported criminal-justice purpose on a statute-by-statute, case-by-case basis.18 The *Peraza* court emphasized that the challenger takes on the burden of establishing that the statute operates unconstitutionally in every possible circumstance.19 The *Peraza* court indicated that a party asserting a facial challenge to the constitutionality of a court-costs statute under the separation-of-powers clause must show that no circumstance exists under which the statute or an interconnected statute provides for an allocation of such court costs to be expended for legitimate criminal-justice purposes.20

In *Peraza* , the challenged statute required collected court costs to be sent to the comptroller and that the comptroller deposit thirty-five percent of the funds into the state treasury to the credit of the state highway fund and sixty-five percent of the funds to the credit of the criminal-justice planning account in the general revenue fund.21 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 with certain crimes.22 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.23

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.24 The *Peraza* court held that the challenger had not shown that it was impossible for the court-cost statute to operate constitutionally under any circumstance.25 The court-cost statute challenged in *Peraza* did not involve the recoupment of costs necessary and incidental to the trial of a criminal case.26 Nonetheless, the *Peraza* court articulated a single legal standard for determining 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 state that this standard would vary according *895to the type of court-cost statute.27

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

In *Salinas v. State* , decided just two years after *Peraza* , the Court of Criminal Appeals addressed the constitutionality of a statute requiring every convicted felon to pay $133 as a court cost.28 Though the statute expressly allocated the court costs among various accounts, the high court held 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 in violation of the separation-of-powers clause.29

In deciding the case, the *Salinas* court said that it was applying the legal standard from *Peraza.*30 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.*31 Yet, the *Salinas* court used different words to describe this legal standard.32 Though 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," the *Salinas* court stated that " *Peraza* requires that the relevant statutes direct that the funds be used for something that is a legitimate criminal justice purpose."33 In finding the statute at issue unconstitutional in part, the *Salinas* court pointed to the failure of any statute to direct that the court costs be used for a legitimate criminal-justice purpose and found that this failure alone sufficed to show 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.34

The *Salinas* court underscored that it found the statute facially unconstitutional because the statute failed to direct the funds to be used for a legitimate criminal-justice purpose.35 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.36

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**896involve a statute that was silent as to the allocation of the court costs collected.37 The *Salinas* court used broad language and did not mention any exception for such statutes. *See id.* Even presuming that appellant's separation-of-powers challenge does not fall within the *Salinas* court's holding, the high court's statements constitute deliberate and unequivocal declarations of the law made after mature consideration and for future guidance of the bench and bar.38 These judicial dicta bind this court.39 Thus, *Salinas* requires this court to apply the legal standard in that case to all facial, separation-of-powers challenges to court-cost statutes.40 In criminal appeals, this court must follow precedent from the Court of Criminal Appeals.41 We lack authority to overrule or circumvent Court of Criminal Appeals precedent.42

Under the *Salinas* precedent, to show that a court-cost statute on its face violates the separation-of-powers clause, a challenger need only demonstrate 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.43

The *Salinas* standard applies to appellant's challenges to article 102.011(a)(3), even presuming that the statute involves recoupment of costs incurred by the county that are necessary and incidental to the trial of a criminal case, and even though the statute is silent as to the allocation of the court costs collected.44 Though the high court worded the *Salinas* legal standard somewhat differently than it worded the *Peraza* legal standard, the *Salinas* legal standard is not 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.45

*The Language of Article 102.011(a)(3)*

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:

> *897...

> (3) $5 for summoning a witness;

> ...

> (j) In this article, "conviction" has the meaning assigned by Section 133.101, Local Government Code.46

Article 102.011 does not allocate the witness-summoning fee to any specific fund, nor does the statute give any direction as to how the funds collected should be expended.47 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.48

The standard demands that statutes spell out the connections rather than leave others to connect the dots. In the simplest terms, that funds *could* be used for a legitimate criminal-justice purpose does not suffice.49 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.50 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.51 In rejecting the argument that the account assists individuals 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.52 Under *Salinas's* separation-of-powers analysis, to pass constitutional muster, article 102.011 or an interconnected statute must direct that the funds collected be expended for something that is a legitimate criminal-justice purpose.53

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.54 Article 102.011 does not address how the funds collected should be expended or where they should be held.55 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.56

The State argues that nothing in the plain language of article 102.011 directs that the funds collected under article 102.011(a)(3) be paid into a general revenue fund or be expended for a purpose that is not a legitimate criminal-justice purpose. But, under the *Salinas* standard, none of that is required. A failure of any statute to direct that the funds collected under the court-cost statute be expended *898for a legitimate criminal-justice purpose suffices to show that the court-cost statute facially violates the separation-of-powers clause.57 Thus, under *Salinas* , article 102.011 's silence as to whether the funds collected under article 102.011(a)(3) should be expended for something that is a legitimate criminal-justice purpose does not avoid a violation of the separation-of-powers clause.58

The majority and the State contend article 102.011 directs that the funds collected under article 102.011(a)(3) be expended for the "reimbursement of the peace officer who performed the service of summoning a witness in this case."59 The majority also concludes that the witness-summoning fee "is an actual recoupment of the out of pocket expenses incurred for summoning witnesses."60

In answering the legal question, we cannot change the legal standard. Nor can this court read saving language into the statutory text. The statute 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 the unambiguous language of the statute the convicted defendant must pay a fee based on a peace officer's services in summoning a witness.62 The statute does not provide that the witness-summoning fee is an actual recoupment of out-of-pocket expenses incurred for summoning witnesses.

It is not our role to fix statutes. That power belongs to the Legislature. Our job is to say whether the statute as written meets the high court's test.

The statute does not state that the purpose of the fee is to reimburse the peace officer.63 Article 102.011 does not state that the funds collected under article 102.011(a)(3) should be expended for the reimbursement of any peace officer.64 The fact that a peace officer's services in summoning a witness trigger this fee does not mean that the fee's purpose is to reimburse the peace officer or the peace officer's employer. Even if reimbursement of a peace officer or the peace officer's employer would be 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.65

A divided panel of the First Court of Appeals recently issued the *Allen* case, concluding that article 102.011(a)(3) does not facially violate the separation-of-powers clause.66 The *Allen* court did not address whether article 102.011(a)(3) satisfies the *Salinas* standard but it suggested that the statute does not.67 Adding on to what the high court said, the *Allen* court concluded that the *Salinas* standard does not apply to court costs that are used to reimburse criminal-justice expenses incurred in *899connection with that criminal prosecution.68 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."69 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.70 According to the *Allen* court, the *Salinas* court dealt with the second legal standard and did not change the first legal standard under *Peraza.*71 Applying an analysis similar to that used by the *Allen* court, the majority concludes that if a statute imposes court costs directly related to the recoupment of costs of judicial resources expended in connection with the prosecution of criminal cases, 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.72 But, the directing-the-use-of-funds component is the centerpiece of the *Peraza**/**Salinas* legal standard. Eliminating it changes the standard - and potentially the outcome.

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 provision. The *Peraza* court did not say this standard would differ depending on the type of court-cost statute under scrutiny.73 The *Salinas* court re-stated this single legal standard in a similar way, using slightly different words.74 Applying the *Salinas* standard to appellant's fourth issue, 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.75

This court should (1) conclude that under precedent from the Court of Criminal Appeals, to be constitutional article 102.011(a)(3) or an interconnected statute must direct the funds collected to be used for something that is a legitimate criminal-justice purpose; (2) hold that article 102.011(a)(3) does not direct the funds collected to be used for something that is a legitimate criminal-justice purpose; 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

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* , 562 S.W.3d at 178-79 (citing Tex. Loc. Gov't Code § 113.004(d) ).

2

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* , 562 S.W.3d at 175-80, 2018 WL 4138965, at *8-9.

1

*See**Johnson v. State* , No. 14-16-00658-CR, --- S.W.3d at ---- - ----, 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* , 562 S.W.3d at 181-91, 2018 WL 4925456, at *9-16 (Frost, C.J. dissenting).

2

The only appellate court that appears to have addressed whether article 102.011(a)(3) 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 ----, ---- - ----, 2018 WL 4138965, at *4-9 (Tex. App.-Houston [1st Dist.] Aug. 30, 2018, pet. granted).

3

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

4

*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).

5

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

6

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

7

*Id.*

8

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

9

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

10

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

11

*Id.* at 107.

12

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

13

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

14

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

15

*Id.*

16

*Id.* (footnote omitted).

17

*Id.* at 517-18.

18

*Id.*

19

*See**id.* at 516.

20

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

21

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

22

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

23

*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").

24

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

25

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

26

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

27

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

28

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

29

*See id.*

30

*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* ).

31

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

32

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

33

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

34

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

35

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

36

*See**id.* at 107.

37

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

38

*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).

39

*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").

40

*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).

41

*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).

42

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

43

*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.

44

*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.

45

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

46

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

47

*See id.*

48

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

49

*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.

50

*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.

51

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

52

*See**id.* at 108.

53

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

54

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

55

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

56

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

57

*See id.*

58

*See id.*

59

*See**ante* at 890.

60

*See**ante* at 891.

61

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

62

*See id.*

63

*See id.*

64

*See id.*

65

*See id.*

66

*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).

67

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

68

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

69

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

70

*See id.*

71

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

72

*See**ante* at ----.

73

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

74

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

75

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