NO. 01-14-00675-CR

NO. 01-14-00676-CR

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

ISRAEL MONTOYA ALCARAZ

Appellant

v. 

THE STATE OF TEXAS

Appellee

On Appeal from Cause Numbers 1394947 & 1394948 

From the 174th District Court of Harris County, Texas 

BRIEF FOR APPELLANT

ORAL ARGUMENT WAIVED ALEXANDER BUNIN

 Chief Public Defender

Harris County, Texas

 ANGELA L. CAMERON

 Assistant Public Defender 

 Harris County, Texas

TBN 00788672

1201 Franklin, 13th Floor 

Houston, Texas 77002

Phone: (713) 368-0016

Fax: (713) 368-9278

 

Counsel for Appellant

ACCEPTED

01-14-00675-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

2/3/2015 10:27:01 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/3/2015 10:27:01 AM CHRISTOPHER A. PRINE Clerk
2

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Israel Montoya Alcaraz 

TDC #01942296

Telford Unit

3899 Hwy 98

New Boston, Texas 75570

TRIAL PROSECUTOR: Amy McCauley

Assistant District Attorney

 Harris County, Texas

 1201 Franklin Avenue

Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mark Thering

1305 Prairie

Houston, Texas 77002

PRESIDING JUDGE: Hon. Ruben Guerrero

 174th District Court 

Harris County, Texas

1201 Franklin Avenue, 19th floor

Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT: Angela Cameron

 Assistant Public Defender

 Harris County, Texas

 1201 Franklin Avenue, 13th floor

Houston, Texas 77002
3

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.................................................................. 2

TABLE OF CONTENTS .................................................................................................... 3

INDEX OF AUTHORITIES.............................................................................................. 4

STATEMENT OF THE CASE .......................................................................................... 5

ISSUES PRESENTED......................................................................................................... 6

STATEMENT OF FACTS .................................................................................................. 7

SUMMARY OF THE ARGUMENT................................................................................. 8

ISSUE ONE ........................................................................................................................... 9

The DNA court cost assessed against Appellant is an unconstitutional 

tax on Appellant.

Preservation of Error ................................................................................................. 9

Applicable Law............................................................................................................ 9

ISSUE TWO......................................................................................................................... 12

The written judgments should be modified to remove a Sheriff’s fee that 

is not supported by the record.

ISSUE THREE ................................................................................................................... 12

The written judgments should be reformed to correctly reflect Appellant 

has the right to appeal. 

PRAYER ............................................................................................................................... 14

CERTIFICATE OF SERVICE......................................................................................... 15

CERTIFICATE OF COMPLIANCE .............................................................................. 16
4

INDEX OF AUTHORITIES

Cases

Asberry v. State, 813 S.W.2d 526 (Tex. App. – Dallas 1991, pet. ref'd)........................... 13

Cardenas v. State, 423 S.W.3d 396 (Tex. Crim. App. 2014)................................................. 9

Evans v. State, No. 01-11-00021-CR, 2012 WL 1379632 (Tex. App. – Houston [1st 

Dist.] April 19, 2012, no pet.)(mem. op. not designated for publication)................. 13

Ex parte Carson, 159 S.W.2d 126 (1942)............................................................................. 10

Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) ................................................... 9

Nolan v. State, 39 S.W.3d 697 (Tex. App. – Houston [1st Dist.] 2001, no pet.)............ 13

Peraza v. State, No. 01-12-00690-CR, 2014 WL 7476214 (Tex. App. – Houston [1st

Dist.] Dec. 30, 2014, no. pet. h.).................................................................... 8, 10, 11, 12

Statutes

Tex. Code Crim. Proc. art 102.001(a)(1) .......................................................................... 12

Tex. Code Crim. Proc. art. 102.020(a)(1)............................................................................. 9

Tex. Code Crim. Proc. art. 102.020(h)............................................................................... 11

Tex. Code Crim. Proc. art. 103.008...................................................................................... 9

Tex. Gov't Code Ann. §411.1471(a)(1)..........................................................................9, 10

Tex. Gov't Code Ann. §772.006(a)(2)............................................................................... 11
5

STATEMENT OF THE CASE

Mr. Alcaraz was indicted for Aggravated Sexual Assault of Child and 

Possession of Child Pornography (C.R. 1 at 25) (C.R. 2 at 16).

1

 Alcaraz pled guilty 

without an agreed recommendation and his cases were set for a presentence 

investigation hearing. (C.R. 1 at 32) (C.R. 2 at 24). Following a presentence 

investigation hearing, the trial court sentenced Alcaraz to 50 years confinement in the 

Texas Department of Criminal Justice in the sexual assault case and 10 years 

confinement in the child pornography case. (C.R. 1 at 62) (C.R. 2 at 37) (1 R.R. at 87-

88). The court ordered the sentences to be served concurrently (C.R. 1 at 62) (C.R. 2 

at 37). Alcaraz filed a timely notice of appeal (C.R. 1 at 67) (C.R. 2 at 40). A motion 

for new trial was filed but not presented (C.R. 1 at 77) (C.R. 2 at 52).

 1 The clerk’s record will be cited as follows:

C.R. 1 ...... Clerk’s record in trial cause number 1394947, 01-14-00675-CR

C.R. 2 ...... Clerk’s record in trial cause number 1394948, 01-14-00676-CR 

Supp. C.R. 1 ...... Supplemental Clerk’s record in trial cause number 1394947, 01-14-00675-CR

Supp. C.R. 2 ...... Supplemental Clerk’s record in trial cause number 1394948, 01-14-00676-CR 
6

ISSUES PRESENTED

ISSUE ONE

The DNA court cost assessed against Appellant is an unconstitutional 

tax on Appellant.

ISSUE TWO

The written judgments should be modified to remove a Sheriff’s fee that 

is not supported by the record. 

ISSUE THREE

The written judgments should be reformed to correctly reflect Appellant 

has the right to appeal. 
7

STATEMENT OF FACTS

Alcaraz is the stepfather of the complainant E.H. (PSI at 7). While on a family 

vacation, E.H.’s mother asked to use Alcaraz’s cell phone to take photos as her phone 

was not charged (1 R.R. at 41). After taking photos, E.H.’s mother wanted to view 

them. She scrolled through the phone and discovered several inappropriate 

photographs of E.H. which had been taken on four different dates. (1 R.R. at 11-13, 

41-42). E.H.’s mother identified E.H. as the subject of the photographs based on the 

clothing and the room in which the photos were taken (1 R.R. at 10). 

The photographs showed E.H. sleeping and her clothing being moved in order 

to expose her buttocks, breast and vagina (1 R.R. at 12-14). In one of the 

photographs, digital penetration of E.H.’s vagina could be seen (1 R.R. at 15 & 31). 

Law enforcement identified the hand in the photo as belonging to Alcaraz by 

comparing a scar on one of the fingers to Alcaraz’s hands (1 R.R. at 15). This 

photograph formed the basis of the Aggravated Sexual Assault of a Child charge.
8

SUMMARY OF THE ARGUMENT

Alcaraz argues the judgments in each case should be modified to delete $255 in 

court costs. This amount represents a $250 DNA Testing Fee pursuant to Tex. Code 

Crim. Proc. art. 102.020, which this Court has recently held unconstitutional in Peraza 

v. State, No. 01-12-00690-CR, 2014 WL 7476214 (Tex. App. – Houston [1st Dist.] 

Dec. 30, 2014, no. pet. h.). The remaining $5 represents a sheriff’s fee for making an 

arrest without a warrant which is not supported by the record. 

Alcaraz also argues the judgment should be reformed to correctly reflect he has 

the right to appeal. The current judgment states “Appeal Waived. No Permission to 

Appeal Granted.” However the record contains an Amended Trial Court 

Certification which states the case “is not a plea-bargain case, and the defendant has 

the right of appeal” and the boilerplate waiver language in the plea papers is not 

binding.
9

ISSUE ONE

THE DNA COURT COST ASSESSED AGAINST APPELLANT IS AN 

UNCONSTITUTIONAL TAX ON APPELLANT.

Preservation of Error 

Challenges to court costs can be raised for the first time on appeal and 

“[c]onvicted defendants have constructive notice of mandatory court costs set by 

statute and the opportunity to object to the assessment of court costs against them for 

the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of 

Criminal Procedure.” Cardenas v. State, 423 S.W.3d 396, 399 (Tex. Crim. App. 2014). 

In a companion case decided the same day, Johnson v. State, the Court further explained 

that because the cost bill is most likely unavailable at the time of the judgment, an 

“[a]ppellant need not have objected at trial to raise a claim challenging the bases of 

assessed costs on appeal.” Johnson v. State, 423 S.W.3d 385, 391 (Tex. Crim. App. 

2014).

Applicable Law 

Both judgments contain court costs to be assessed against Mr. Alcaraz (C.R. 1 

at 62) (C.R. 2 at 37). The clerk’s record in each case contains a bill of cost supporting 

the amount noted in the judgment (C.R. 1 at 64) (C.R. 2 at 39). The bills of cost show 

Alcaraz was charged $250 in each case as a DNA Testing Fee (C.R. 1 at 64) (C.R. 2 at 

39). Tex. Code Crim. Proc. art. 102.020(a)(1) provides that “[a] person shall pay as a 

cost of court $250 on conviction of an offense listed in Section 411.1471(a)(1), 
10

Government Code.” Both aggravated sexual assault of a child and possession of child 

pornography are offenses listed in Section 411.1471(a)(1). Thus the $250 cost was 

properly included in the bills of cost.

However in Peraza v. State, this Court held the DNA Record Fee was not a 

legitimate court cost, but was instead an unconstitutional tax. Peraza v. State, No. 01-

12-00690-CR, 2014 WL 7476214 (Tex. App. – Houston [1st Dist.] Dec. 30, 2014, no. 

pet. h.). In reaching this conclusion, this Court relied on Ex parte Carson, 159 S.W.2d 

126, 130 (1942), wherein the Court of Criminal Appeals found that a $1 law library fee 

was “neither necessary nor incidental to the trial of a criminal case” and as such was 

“not a legitimate” cost of court. 

In Peraza, the Court first addressed the thirty-five percent of the funds which 

are to be deposited in state highway fund. The Court determined that these funds 

“may be used for any function of TxDOT” and are not specifically limited to “defray the 

costs associated with collecting, storing, and testing DNA samples” Peraza at 6 & 7

(emphasis in original). After examining the TxDOT’s mission statement and the 

various statutes listing TxDOT’s responsibilities, the Court held that because “the 

responsibilities of TxDOT are far more remote from a criminal trial than the county 

law libraries which were to be used by the judges and attorneys for trial preparation in 

Carson”...it could not be “reasonably concluded that the portion of the revenue 

collected through the ‘DNA Record Fee’ and dedicated to the state highway fund 
11

constitutes a proper court cost to be assessed against appellant or any other criminal 

defendant.” Id. at 7. 

The Court then turned to the remaining sixty-five percent which is deposited in 

the criminal justice planning account. Tex. Crim. Proc. art. 102.020(h). “The criminal

justice planning account is administered by the Criminal Justice Division (“CJD”) of 

the Governor's Office. Peraza at 8 citing Tex. Gov't Code Ann. §772.006(a)(2)

(Vernon 2012). Once again looking at the administering organization’s mission, the 

Court determined “[t]he CJD ...uses this money to ‘[s]upport a wide range of projects 

designed to reduce crime and improve the criminal and juvenile justice systems.’” 

Peraza at 9. The Court then found “the criminal justice planning account, which is 

funded by the “DNA Record Fee,” [does not ]pass[ ] constitutional muster” stating:

...the money from the criminal justice planning fund is not required to 

be directed to the courts or to services necessarily or incidentally related 

to criminal trials. And often times such revenue is given to programs 

that, as the court in Carson specifically noted, could not possibly relate to 

legitimate court costs. See 159 S.W.2d at 127 (costs for training and 

education not legitimate court costs that may be assessed against 

criminal defendants). 

Id. at 10.

As Mr. Alcaraz was assessed the same DNA fee that this Court has found 

unconstitutional, Alcaraz requests this Court modify each judgment to delete the $250 

charge from the court costs. See Peraza v. State, No. 01-12-00690-CR, 2014 WL 

7476214 (Tex. App. – Houston [1st Dist.] Dec. 30, 2014, no. pet. h.)(proper remedy

for unsupported fee to modify the judgment). 
12

ISSUE TWO

THE WRITTEN JUDGMENTS SHOULD BE MODIFIED TO REMOVE A

SHERIFF’S FEE THAT IS NOT SUPPORTED BY THE RECORD.

Tex. Code Crim. Proc. art 102.001(a)(1) provides that a $5 court cost may be 

assessed when a peace officer makes an arrest without a warrant. Tex. Code Crim. 

Proc. art 102.001(a)(2) provides that a peace officer may charge $50 for executing an 

arrest warrant, capias or capias pro fine. The cost bills in both cases indicate Alcaraz 

was assessed both a $50 fee for “serving capias” and a $5 fee for “arrest w/o 

Warrant/Capias” (C.R. 1 at 64) (C.R. 2 at 39). One cannot be arrest both with and 

without a warrant or capias. It must be one or the other. The record indicates a 

warrant had issued at the time of Alcaraz’s arrest (1 R.R. at 15). Thus the proper fee 

amount is $50 and each judgment should be modified to delete $5 fee from court 

costs. See Peraza v. State, No. 01-12-00690-CR, 2014 WL 7476214 (Tex. App. –

Houston [1st Dist.] Dec. 30, 2014, no. pet. h.)(proper remedy for unsupported fee to 

modify the judgment). 

ISSUE THREE

THE WRITTEN JUDGMENTS SHOULD BE REFORMED TO CORRECTLY 

REFLECT APPELLANT HAS THE RIGHT TO APPEAL.

An appellate court has the power to correct and reform a trial court judgment 

“to make the record speak the truth when it has the necessary data and information to 

do so, or make any appropriate order as the law and nature of the case may require.”
13

Nolan v. State, 39 S.W.3d 697, 698-99 (Tex. App. - Houston [1st Dist.] 2001, no pet.)

citing Asberry v. State, 813 S.W.2d 526, 529 Tex. App. - Dallas 1991, pet. ref'd).

Both judgments contain the following language:

Furthermore, the following special findings or orders apply:

APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.

(C.R. 1 at 63) (C.R. 2 at 38). 

The record contains several trial court certifications. On April 14, 2014, the day 

Alcazar entered his guilty pleas, the court signed a certification in each case but failed 

to check any of the options provided on the form. (C.R. 1 at 41) (C.R. 2 at 32). On 

July 17, 2014, the day Alcaraz was sentenced, the court again signed certifications in 

each case. In the sexual assault case, the trial box stating the defendant has the right 

to appeal is checked and the box stating the defendant had waived the right to appeal 

is also checked as well as having initials next to it (C.R. 1 at 65). Additionally a third 

box stating the case was a plea bargain case appears to have been initially checked but 

marked out (C.R. 1 at 65). In the child pornography case the trial court indicated the 

defendant had the right to appeal (C. R. 2 at 43). 

Finally, on January 13, 2015, pursuant to this Court’s Order of Abatement, a 

third set of certifications were filed stating the case “is not a plea-bargain case and the 

defendant has the right of appeal.” (Supp. C.R. 1 at 3) (Supp. C.R. 2 at 3). 

In Evans v. State, No. 01-11-00021-CR, 2012 WL 1379632 (Tex. App. –

Houston [1st Dist.] April 19, 2012, no pet.)(mem. op. not designated for publication)
14

the First Court of Appeals modified the judgment when faced with a similar situation. 

Evans pled guilty without a plea bargain and the case was set for a presentence 

investigation report. The judgment and the boilerplate plea papers said Evans had 

waived his right of appeal but the trial court’s certification stated Evans had the right 

to appeal. 

The Court reformed the judgment finding the boilerplate waiver of appeal 

language was not binding because it was executed before the trial court proceeded to 

adjudicate guilt, it was not bargained for and there was no recommended sentence. 

These same three factors are present in Alcaraz’s case. The plea papers and the 

original trial court certification were executed prior to the court finding Alcaraz 

guilty.2 There is nothing in the record to indicate the parties bargained for Alcaraz to 

waive his appeal and the plea papers affirmatively reflect there was no recommended 

sentence (C.R. 1 at 32) (C.R. 2 at 24). The trial court also confirmed there was no 

agreed recommendation (1 R.R. at 3). Thus, Alcaraz requests this Court to correct 

and reform the trial court judgments to delete the notation “Appeal Waived. No 

Permission to Appeal Granted.”

PRAYER

Mr. Alcaraz respectfully requests that this Court reform the judgment to reflect

reduce the court costs by $255 in each case to remove the unconstitutional DNA fee, 

 2 Prior to the beginning of the PSI hearing, the trial court specifically stated on the record, “There was no finding of guilt 

on these cases” (1 R.R. at 3).
15

and the unsupported Sheriff’s fee of $5. Alcaraz also asks the Court to remove the 

notation “Appeal Waived. No Permission to Appeal Granted”. 

Respectfully submitted,

Alexander Bunin

Chief Public Defender

/s/ Angela Cameron

Angela Cameron

State Bar No. 00788672

Assistant Public Defender 

Harris County Texas 

1201 Franklin 13th Floor

Houston Texas 77002c

(713) 368-0016

angela.cameron@pdo.hctx.net

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing brief to the Harris County 

District Attorney via hand delivery on the day the brief was filed.

/s/ Angela Cameron

Angela Cameron
16

CERTIFICATE OF COMPLIANCE

 Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies 

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief 

contains 2,816 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Garamond 

14 point font in text and Garamond 12 point font in footnotes produced by 

Microsoft Word software.

3. Upon request, undersigned counsel will provide an electronic version of this 

brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in 

completing this certificate, or circumvention of the type-volume limits in Tex. R. App. 

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.

/s/ Angela Cameron

Angela Cameron