t NO. 06-14-00112-CR 

# S6ZI5 ORIGINAL

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IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS 

## .JRECELVED IN COURTOFCRIMINALAPPEALS RASHAD LEE, 

### Petitioner JUN 29 2015 VS. 

## the state of texas, AbetAcosta,Clerk Respondent

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Appealed from the 76th District Court Morris County, Texas Trial Court No. 10,947-CR

PETITION FOR DISCRETIONARY REVIEW

RASHAD LEE #1932553 ALLRED UNIT 2101 FM 369 NORTH IOWA PARK, TEXAS 76367 

### FILED IN 

## COURTOFCRIMINALAPPEALS PRO SE ri.ni.3 

### JUL 02 2015 Abe! Acosta, ClerkJune 15, 2015 Clerk of Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711 RE: Appeal Number 06-14-00112-CR Lee v. State

Dear Clerk, Enclosed, please find a true and correct copy of the Petition For Discretionary Review and it's Appendix. Please file and bring to the attention of the Court.
Respectfully,

Rashad Lee #1932553 Allred Unit 2101 FM 369 North Iowa Park, Texas76367



### IaTABLE OF CONTENTS Page TABLE OF CONTENT i INDEX OF AUTHORITIES ii STATEMENT REGARDING ORAL ARGUMENT 1 STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 2
GROUNDS FOR REVIEW 3 Issue For Review One
- Whether the Sixth District Court of Appeals' Decision Conflict with the First District Court of Appeals' Decision on the same Issue 3 

### Whether the Sixth District Court of Appeals has decided an important question of State or Federal Law that has not been, but should be, settled by the Court of Criminal Appeals 7 ARGUMENT . 3,7
PRAYER FOR RELIEF „.««.,... «,.,.„ ..,..„...-., 8 APPENDIX (ATTACHMENT "A" COURT'S OPINION)... 10INDEX OF AUTHORITIES
Cases Blake v. State, 971 SW 2d 451, 454 (Tex. Crim. App. :1998).... 6 Cantelon v. State, (App. 3 Dist. 2002) 85 SW 3d 457 7 Young v. State, 95 SW 3d 448 (Tex. App. - Houston [1st Dist] 2002)... 3,4,6,7

Statutes Code of Criminal Procedure Art. §38.14 4,6 Code of Criminal Procedure Art. §38.141 6,7

Miscellaneous Government Code §501.014;. 8 Government Code §501 ..104(b) 8

iiSTATEMENT REGARDING ORAL ARGUMENT 

### Oral argument;in this case would be extremely helpful in this case 

### in order to produce further evidence before this Court that the Petitioner do not currently nave in possession.
STATEMENT OF THE CASE 

### The State conspired with Charles Taylor and DPS Officers Chris Brook, Greg Wilson, and two other alleged officers by the name of 

### Perry and Lieutenant Deramus in which never testified at the trial
on behalf of the State, to build a case on Rashad Lee. 

### Charles Taylor testified that at the time he was in prison for delivery of a controlled substance. (3 RR .128). Charles Taylor testified that 

### he purchased cocaine for the amount of $225. (3 RR 134). He further testified that Mr. Lee and Katrina Moore were walking with a pit bill, 

### and that he dropped the dope because he was scared of the dog and that 

### the transaction happened quickly, and that he was the one that picked the dope up. (3 RR .139). 

### Chris Brock testified that he equipped Taylor with audio and video 

### recording devices and a device that allowed law enforcement to listen while Mr. Taylor made his purchase with Mr. Lee. (3 RR 28). He further testified that Taylor called Mr. Lee to purchase a quarter ounce of 

### crack cocaine for $225, and the phone was on speakerphone (3 RR 29). He never testified as to how they could had or could have had a speaker

### phone hooked up at a cementary. Chris Brock never testified as to whether the money was marked they claimed to have given Charles Taylor. He never 

### testified that they saw two men walking down the road, one of whom had 

### a dog on a leash. Brock never testified to seeing Charles Taylor drop 

### anything (allegely dope) on the ground or pick up anything off the ground, nor did Brock testify as to the dog making any attempt to bite Charles 

### Taylor, nor whether or not it appeared Charles Taylor to appear scared of the alleged pit bill.

1.Stephanie Johnson testified she worked for the DPS Crime Lab in Tyler, Texas, testing Controlled Substances. (3 RR 52). Johnson claimed to have found the substance to be an illegal Controlled Substance. (3 RR 55). Johnson further testified that the Controlled tested to be cocaine (3 RR 56) in the amount of 2.5 grams of crack cocaine (3 RR 60), in which she never conducted any tests to determine the percentage of cocaine in the alleged 2.5 grams (3 RR 62), therefore, establishing evidence that she can not say if it was actually crack cocaine. Greg Wilson testified that he was assigned to the Criminal Investigation Division (3 RR 89) and that he worked the buy/walk with Charles Taylor and Rashad Lee on March 21, 2012 (3 RR 90), and that he made several 

### buys using Mr. Taylor as a cooperating individual (3 RR 91). Greg Wilson also testified that it was two men walking with a dog, yet never testified to seeing Mr Taylor dropping any dope, nor picking up anything off the 

### ground, nor having any fear of the pit bull. He further testified that all equipment was accounted for and deactivated then he gave it to Agent 

### Brock (3 RR 93), yet never testified to any marked money being found

on Reshad Lee. 

### The state is currently holding and innocent man, Rashad Lee, confined in TDCJ-ID, for a crime he never committed. There is no clear evidence 

### as to how Charles Taylor was in prison at the time the alleged transaction was said to have occurred, what deal was made with him or whether he 

### actually made any contact with Rashad Lee, due to the State apologizing for the quality of the video in opening remarks (3 RR 18, 20) and both officers blamed time/date differences on the video as being mechanical 

### problems outside their control or expertise, and Rashad Lee not being arrested for the charge until a year later.
STATEMENT OF PRCCEDURAL HISTORY Rashad Lee was convicted on June 18, 2014 by Jury. The trial Judge signed a judgment of conviction on June 18, 2Q14 by jury. The Defense Attorney, JERRY PRATT gave Notice of Appeal.

2.EBB B MOBLEY, counsel or appeal filed an Appellant's brief on the 5th day of December, 2014. The SIXTH COURT OF APPEALS in Texarkana, Texas received for Review on January 7, 2015 and affirmed the trial court's judgment on April 9, 2015. The Petition For Discretionary Review (PDR) was due May,9, 2015. Rashad Lee. on May 1, 2015, filed a Motion For Extension of Time to file the PDR. On May .11, 2015, The Court of Criminal Appeals, C0A Case No. 06-14-00112-CR, extended the time to file the PDR to July 10, 2015.
GROUNDS FOR REVIEW
ISSUE FOR REVIEW ONE WHETHER THE SIXTH DISTRICT COURT OF APPEALS* DECISION CONFLICT KITH ANOTHER COURT OF APPEALS' DECISION ON THE SAME ISSUE
ISSUE FOR REVIEW TWO WHETHER THE SIXTH DISTRICT COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS

ARGUMENT
ISSUE FOR REVIEW ONE Whether The SIXTH DISTRICT COURT OF APPEALS' Decision Conflict With Another Court Of Appeals' Decision On The Same Issue
Petitioner contends that the Sixth District Court of Appeals in Texarkana, Texas has made a ruling on the merits of his appeal contrary to the First District Court of Appeals in Houston, Texas. Petitioner's Appeal Counsel, EBB B. MOBLEY, raised the Ground in the appeal brief asking the SIXTH DISTRICT COURT OF APPEALS the Question, "Is there sufficient evidence to corroborate the testimony of the covert agent Charles Taylor?" The Sixth District Court of Appeals made it's decision contrary to the First District Court of Appeals in Young v. State, 95 SW 3d 448 (Tex. App.
- Houston [1st Dist.] 2002). In the Young Court, it states,

3."Test for determining whether evidence is sufficient to corroborate accomplice testimony is to eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect defendant to the offense." Vernon's Ann. Texas C.C.P. art. 38.14. Further, the Young Court stated, "In context of statute requiring corroboration of accomplices' testimony, the testimony that is to be eliminated from consideration is that testimony given by live witnesses speaking under oath in Court." Vernon's Ann. Texas C.C.P. art. 38.14. The Sixth Court of Appeals had made a ruling contrary to the Young Court, and has failed to eliminate the testimony of the live witnesses. Had the Sixth Court of Appeals eliminated the live witnesses' testimony speaking under oath the Court of Appeal would have saw that there is no evidence to connect Rashad Lee to the Crime. The facts will only show a conspiracy to charge or convict Rashad Lee of the offense in Question. The Young Court was the same identical as the instant case and was reversed due to the fact the confidential information, Hamilton Farr, was the only one to identify the appellant in the case. As here, in the instant case, Charles Taylor was the only one that identified Rashad Lee as 

### the person who sold him the dope. The officer could not say it was Lee. Chris Brock claimed to have searched Charles Taylor to ensure there was no drugs on him, yet he failed to search the car and there is no 

### testimony as such serch of the car* Young v. State, 95 SW 3d 448 (Tex. App.- Houston [1st Dist] 2002). In Young, the officer searched the confidential informant and the car, and the court found there to not be enough evidence, as we have here in the instant case. Further, the Young Court stated that the Officer Galloway stopped 

### following Farr when Farr turned onto County Road 2039. The same happened 

### in the instant case, all officers stopped following Charles Taylor when he turned off County Road 3108, and no one went to the location said 

### to have been the location the transaction allegedly occurred. Further in the Young Court, the court found that Hamilton Farr was arrested for selling marijuana to another confidential informant, and 

### that confidential informants may have incentives to create criminal

4.cases or shade their testimony in favor of the state in hope that they 

### will be rewarded with greater leniency later on. I This reviewing court must take notice that Charles Taylor was either in prison or had charges pending for Delivery of a Controlled Substance (3 RR 128). This was evidence and reason for Charles Taylor to falsely testify against Rashad Lee, and that he had some type of dope connection before claiming to come into contact with Rashad Lee. The Officer nor the Sixth Appeal Court cannot say whether or not Taylor had dope in the car, because the car was not searched. Lee will show the court other
reasons that he has not been connected to the case: 1) Chris Brock nor Greg Wilson has ever met Lee, therefore, neither could say whether Charles Taylor spoke with Lee. 2) They never searched Taylor's car. 3) The money that the Agent claimed to have given Taylor was not marked, nor was Lee found to have been in possession of any money or marked
money. 4) Neither of the officer followed Taylor to the alleged spot where they claimed the transaction took place. 5) Neither of the officer saw Taylor being in fear of the pit bull. 6) Neither saw Charles Taylor drop any dope or bend down to pick up any dope. 7) Rashad was not arrested until a year later, in which is evidence the officers conspired to build a case against Lee, due to the fact had they witnessed a dope transaction they would have immediately arrested Lee and they could have confiscated the money or any money that Lee may have had or held in his possession. 8) Taylor testified that it was a woman and a man walking the road, yet Chris Brock and Greg Wilson testified that it was two men. There*s
a contradiction here that the court must look at. 9) Chris Brock and Greg Wilson, both provided different dates and times in which the video was alleged to have been made. The state apologized for the quality of the video in opening remarks (3 RR 18) and both 

### Agents blamed time/date differences in the video as being mechanical problems outside their control or expertise.

5.The Court must make a decision on the Code of Criminal Procedure Art. 38.141, inwhich require that the defendant conviction be based, at least 

### in part, upon "other evidence tending to connect" an accused with the offense. See Young v. State, 95 SW 3d 448 (Tex. App.
- Houston [1st Dist] 2002). 

### The Sixth Appeal Court failed to make considerations of the evidence without Charles Taylor's testimony. In Blake, the court explained that "the rule reflects a legislative determination that accomplice testimony 

### implicating another person should be viewed with a measure of caution, because accomplices often have incentive to lie, such as to avoid punishment or shift blame to another person", as we have in the instant case. See Blake v. State, 971 SW 2d 451, 454 (Tex. Crim. App. .1998). 

### The Sixth Appeal Court's ruling was totally contrary to the Young Court. The Court of Criminal Appeals should first determine what the 

### requirements are in regards to art. 38.141 of the Code of Criminal Procedures, due to.the Young Court using C.C.P. art. 38.14 as help in interpreting C.C.P. art. 38.141, inwhich there is no case law. This court should reverse this case and order Lee to be released from his unlawful confinement. Even after the court considering the evidence without Charles Taylor's 

### testimony, the Court still have to delete the testimonies of Chris Brock and Greg Wilson, for consideration is there other evidence. Young v._ State, 95 SW 3d 448 (Tex. App.
- Houston [1st Dist] 2002). The Court;of Appeals for the Sixth District Court of Appeals can not 

### assume any information. There is either evidence or there's not, and the Court can not say there is evidence when the testimonies do not match and are contrary/inconsistent with each other. The Young Court 

### has set out the requirements, standards and guidelines for the Sixth Appeals Court to conduct a fair and impartial ruling on such case as 

### we have now, yet the Sixth Court of Appeals have even added evidence in the record that's not listed in the record, such as "Chad Brock" 

### being an officer in the case when there is no such named officer in the record.(See Appendix "A" Court's Opinion -page 3). Further the Appeals Court noticed that Agents could not identify the alleged two men. (See Appendix "A" Court's Opinion

- page 4). When the evidence

6.do not connect Rashad Lee to the offense, Lee must be released from his unlawful and illegal confinement. Likewise here as to the Young Case, the tape recording did not connect Lee to the cocaine transaction, nor did Lee testify at the trial, nor could the others (officers) connect Lee to the voice, due to the fact they did not know Lee, nor had they ever heard his voice, and the fact that the jury was able to listen to an audio, if it worked at the time, of a possible cocaine transaction is insufficient to connect Lee with the commission of the offense because corrobating evidence is not sufficent if it merely "Show the commission of the offense". The same exact situation occurred in Young the exact same way. The Sixth Appeal Court errored in ruling contrary to the decisions of the Young Court. See Young v. State, 95 SW 3d 448 (Tex. App. - Houston [1st Dist] 2002).

ISSUE FOR REVIEW TWO Whether The Sixth District Court Of Appeals Has Decided An Important Question Of State Or Federal Law That Has Not Been, But Should Be, Settled By The Court Of Criminal Appeals The Sixth Court Of Appeals has decided an important Question of law that has failed to adequately interpret the meaning, requirements, and essential elements of Texas Code of Criminal Procedure art. 38.141, in which the Court of Criminal Procedures should settle the unresolved issue, due to the fact there is no case law interpreting art. 38.141, but art 38.141 has long required in striking similar language that the state must present evidence to corroborate the accomplice testimony. Cantelon v. State, (App. 3 Dist. 2002) 85 SW 3d 457. The Sixth District Court of Appeals relied upon art. 38.141 of the Texas Code of Criminal Procedures to conduct it's analysis, in which there is no case law to support the affirming of the Appeal Court's Judgment. The Court misconstrued the art. to say that only the commission of the offense or what appears to be the commission of an offense is needed to show Rashad Lee was connected to the offense. The Court of Criminal Appeals should resolve the issue as to what is the law in this case and it's interpretation. Art. 38.141 has not

7.

### been interpreted by any case law, but article 38.14 has long required in strikingly similar language that the state must present evidence 

### to corroborate the accomplices testimony. The Court of Criminal Appeals must use this case as an outline or the law to interpret the real and true meaning of the article, after the decision of the Court of Criminal Appeals. Further the Court of Appeals, Sixth District has claimed to not have 

### jurisdiction over Lee's Due Process argument, when in fact, the Court of Criminal Appeals should address the issue because it has not been addressed. 

### The Government Code §501.104(b) requires a certain amount of procedural due process before withdrawal of funds from inmate trust account. The 

### Sixth District Appeals Court made the ruling, and now is making ruling contrary to it's prior ruling on the same issue. The Court Clerk prepared and filed a bill of costs on June 18, 2014, ordering TDCJ to withdraw funds from the Inmate Trust Fund Account of 

### Rashad Lee without providing notice of removing or attempting to remove the funds. 

### The Sixth Court of Appeals errored in making it's finding/affirming of the Ground based upon a statute that the Appellate Brief never raised. The Court of Appeals used the Government Code, Section 501.014, when 

### in fact the Government ruled upon was contrary to the Ground and Code raised and argued in the Appellate's brief. (See Appendix "A" Court's 

### Opinion at page 6, 8). The Appeals Court would have jurisdiction due to this being a Criminal Case. If the Court of Appeals do not have jurisdiction, them the Government Code used do not apply and any and all funds that has been deducted from Lee's account must be returned.

PRAYER FOR RELIEF Lee prays that this Court will reverse and remand this case or release 

### him from further unlawful confinement after a thorough and foregoing review of the factual Issues for review has been reviewed by this Court

8.and the Court find that the Issues For Review has established that the 

### Sixth Court of Appeals has errored in it's findings and ruled contrary to the First Court of Appeals and order the Court to release him from his unlawful confinement. Executed on this Jjj day of June, 2015. Respectfully Submitted

Rashad Lee #1932553 Allred Unit 2101 FM 369 North Iowa Park, Texas76367

CERTIFICATE OF SERVICE I Rsshad Lee, do certify that a true and correct copy of this Petition 

### For Discretionary Review was mailed to: Clerk

- Court of Criminal Appeals, P.O. Box 12308, Austin, Texas 78711, by U.S. Mail, post pre-paid on this 15th day of June, 2015. 

# %/j^ru/^i Rashad Lee

9,APPENDIX "A" TO PDR
NO. 06-14-00112-CR (ATTACHMENT "A" - COURT'S OPINION)

10.In The 

### Court ofAppeals 

## Sixth Appellate District of Texas at Texarkana

No. 06-14-00112-CR

RASHAD LEE, Appellant
V. THE STATE OF TEXAS, Appellee


### On Appeal from the 76th District Court Morris County, Texas Trial Court No. 10,947CR

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice BurgessMEMORANDUM OPINION While working as a confidential informant for the Texas Department of Public Safety 

### (TDPS), Charles Taylor purchased crack cocaine from Appellant, Rashad Lee. After completing the transaction, Lee was arrested and charged with delivery ofa controlled substance. At his trial, 

### the jury found Lee guilty and sentenced him to serve forty years in the Correctional Institutions Division of the Texas DepartmentofCriminal Justice. The jury also imposed a $5,000.00 fine. 

### The trial courtimposed sentence in open court andremanded Lee to custody. The next day, the trial court signed the judgmentofconviction and an order requiring the withdrawaloffunds from Lee's inmate account for payment ofthe fine and court costs. 

### In his first point of error, Lee argues that the State's evidence fails to adequately corroborate the confidential informant's testimony because it does not tend to connect him to the 

### commission of the crime as required by Article38.141 of the Texas Code of Criminal Procedure. SeeTex. CodeCrim. Proc. Ann. art. 38.141 (West 2005). In his second pointoferror, Lee argues that the State denied him due process by ordering the withdrawal offunds from his inmate account withoutnotice or a hearing. Because we find the corroborating evidence satisfied Article 38.141 's requirements, we overrule Lee's first point oferror. Because Lee failed to properly present his second point oferror, we overrule that point as well. I. First Point ofError: Insufficient Corroborating Evidence A. Applicable Facts 

### Taylor telephoned Lee and set up a meeting to purchase one-quarter of an ounce of crack 

### cocaine for$225.00 LeetoldTaylorto meethim at aparticularlocation nearacemetery. He also

### told Taylor hewould be walking a dog andwould meet him there. TDPS Investigating Agent Chad Brock and three other officers listened to the call as it occurred. Brock and the otherofficers accompanied Taylor to the prearranged location. 

### Before arriving at the location,Agent Brock searched Taylor to verify that he had no drugs or money, and he did not. Brock provided Taylor with a key fob containing a video camera so that 

### he couldrecordthetransaction. Healso gave him$225.00 incash topurchasethecocaine. Brock 

### and the otherofficers followed Taylorat adistance so thattheycould provide assistance to Taylor ifsomething wentwrong during thetransaction. They saw Taylor meet a man walking his dog andwatched themwalking together. When hereconnected with theofficers, Taylorproduced a baggie, which was later determined to contain approximately 2.56 grams ofcocaine. He did not have in hispossession any ofthe money given to him by Brock.
B. Standard of Review In a case such as this, any testimony from a confidential informant must be corroborated 

### by otherevidence tending to connect thedefendant with the alleged offense. Tex. Code Crim. PROC.Ann. art. 38.141. We review confidential informant corroboration in the same manner and 

### by thesame measure as wewould review thetestimony from anaccomplice witness. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). To adequately corroborate Taylor's testimony, 

### "[a]ll the lawrequires is that there be some[other] evidence whichtends to connect 

### the accused to the commission of the offense. While individually these circumstances might not besufficient to corroborate the [confidential informant] testimony, taken together, rational jurors could conclude that this evidence 

### sufficientlytended to connectappellantto theoffense."Cantelonv. State, 85 S.W.3d 457, 460-61 (Tex. App.—Austin 2002, no pet.) (quoting Hernandez
v. State,939 S.W.2d 173, 178-79 (Tex. Crim. App. 1997)). "To determine the sufficiency ofthe corroboration, we eliminate the testimony ofthe [confidential informant] and ask whether other inculpatory evidence tends to connectthe accused to the commission ofthe offense, even ifit does 

### not directly link the accused to the crime." Id. at 461 (citing McDuffv. State,939 S.W.2d 607, 612 (Tex. Crim. App. 1997)). We must view the corroborating evidence in the light most favorable to the verdict. Gillv.State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994) (reviewing sufficiency of 

### accomplice witness testimony); Ivery v. State, No. 06-13-00250-CR, 2014 WL 3906192, at *1 (Tex. App.—Texarkana Aug. 12, 2014, no pet.) (mem. op., not designated for publication). C. Analysis The record reveals several items ofevidence that would tend to connect Lee to the offense, even ifTaylor's testimony were eliminated. First, Taylor placed atelephone call to Lee to arrange the transaction. Lee told Taylor where to meet him and that he would be walking a dog. Brock and the other officers listened to that telephone conversation and testified as to its contents. Brock also testified that when they arrived at the agreed upon location, he saw two men walking down the road, one ofwhom had a dog on a leash. Although Brock was not asked if he was able to identify the men, the general description was consistent with the information revealed in Taylor's telephone conversation with Lee. The State also introduced an audio/video recording and still image screen captures from that recording, introduced as photographs, to corroborate Taylor's testimony. The audio/video 

### recording depicts a person identified as Lee walking with another person who was walking a dog

### and records these individuals' encounter with Taylor. The recording itself shows them meeting 

### andtalking; it alsoshowstheirmovements, includingcontactbetweentheirhands. Thestillimage
screen captures consistofthree relevant photographs. In those images, it appears that Lee has 

### something in hishand that could be aplastic baggie. Theimages also showthat Lee's hand was empty after his contactwith Taylor. 

### Finally, Leearrangedtosell Taylorone-quarterofan ounceofcocainefor$225.00. Taylor
was searched immediately priorto hisencounterwith Lee, and hehad nomoney orillegal drugs in his possession. After giving Taylor $225.00, Agent Brock released him to meet Lee; upon 

### returning, Taylorwasagain searchedandwasfoundtopossessabaggieofwhatwas lateridentified
as2.56 grams ofcocaine. Taylordid nothavethe$225.00 upon thesecond search. Accordingly,

we conclude thatthe evidence is sufficientto tend to connect Lee to the commission ofthe offense


### asrequiredbyArticle 38.141. The evidence istherefore sufficienttosupportthejuryverdict, and Lee's first point oferror is overruled. II. We Do Not Have Jurisdiction OverLee's Claims Related to the Notice ofWithdrawal ofFunds from His Inmate Account A. Lee's Due Process Argument 

### Lee argues that the order directing the collection of afineand court costs from his inmate account was entered in a manner that violated his right to due process oflaw. In the summary of his argument, Lee recites the following procedural facts: 

### Thetrialjudgesigned ajudgment ofconviction by a jury on June 18, 2014. The court clerk prepared andfiled a bill ofcosts on June 18, 2014. The court clerk notified appellant [sic] counsel of his appointment bymail dated June 19, 2014. 

### Thereafterf,] the court clerk filed anorder to withdraw funds and dated June 19,2014[,] but filed on June 20, 2014. The basis for the order is shown to be Government Code §501.014[(e)]. 

### In his argument proper, Lee contends, "The order at bar, as well as the appellate record, show no evidenceofprior notice to Rashad Lee, his trial counsel or his appellate counsel that any 

### monetary assessment was sought or even at issue in a case where he had been represented by 

### appointed counsel from thebeginning." Thecomplained-oforderattached as Appendix A to his
Brief is entitled "Order to Withdraw Funds" and reflects that "THE COURT ENTERS THIS 

### ORDER pursuant to Government Code, Section 501.014, on this 19th day of June, 2014." B. We Cannot Address Lee's Argument in this Direct Appeal from Lee's Criminal Conviction 

### The Texas Court of Criminal Appeals has held that when an appellant challenges the basis for assessment of court costs authorized by criminal statutes on direct appealofhis or her criminal conviction, the cost challenge claim "arises over the enforcementofstatutes governed by the Texas CodeofCriminal Procedure, thereby making it a criminal matter." Armstrongv. State, 340 S.W.3d 759, 766 (Tex. Crim. App. 2011); see Johnson v. State, 423 S.W.3d 385, 388 (Tex. Crim. App. 2014) (holding that cost challenge to assessment ofcosts mandated by criminal statutes may be 

### raised for first time on appeal, and that, if necessary, record can be supplemented with cost bill even if cost bill is created after fact). Likewise, in Mayer v. State, 309 S.W.3d 552 (Tex. Crim. 

### App. 2010), the Texas Court of Criminal Appeals held that an appellant may challenge the 

### sufficiency of the evidencesupporting a trial court's assessment ofcourt-appointed attorney fees on direct appeal of the criminal conviction without raising the issue in the trial court first.Here, Lee's argument fails to raise either achallenge to the basis ofthe court costs assessed 

### or a complaint about the evidentiary sufficiency of the assessmentofcourt costs or attorney fees. Instead, Lee challenges the collection ofthe costs by questioning whether the trial court's notice ofwithdrawal violated due process requirements. Lee supports his argument by citing to three cases; however, all three ofthese cases suggest that Lee's point oferror cannot be raised in this 

### direct appeal. The first case cited by Lee is a civil appeal in which this Court decided that a due process complaint related to the collection ofcosts is a civil matter. See generallyAbdullah v. 

### State, 211 S.W.3d 938 (Tex. App.—Texarkana2007, no pet.). In the second case Lee cites, the Texas Court ofCriminal Appeals found that it lackedjurisdiction to address a complaint similar to the one Lee raises here because the complaint did not involve "criminal law matters." Johnson


### v. Tenth JudicialDist. Court of Appeals at Waco, 280 S.W.3d 866, 874 (Tex. Crim. App. 2008) (orig. proceeding). Finally, the last case cited by Lee merely clarified that a defendant must

### challenge the sufficiency of the evidence supporting an assessment of court costs in a deferredadjudication order by a timely-filed direct appealofthat order deferring adjudication and assessing the contested costs. Perez v. State, 424 S.W.3d 81, 86 (Tex. Crim. App. 2014). Perez further clarified that it is too late to challenge such costs in an appeal ofa subsequent orderofadjudication. Id. Again, because Lee is not challenging the sufficiency ofthe evidence supporting the assessed court costs, Perez is inapplicable. 

### The lineofcases discussing cost challenges raised for the first time on appeal ofcriminal 

### convictionsbeginning withArmstrong and leading to Perezdealt exclusively with challenges to the assessment ofcourt costs under the Texas Code ofCriminal Procedure, not the collection of

### costs under the Texas Government Code. Lee does not complain that the legal or factual bases for 

### the costs were insufficient, butratherthatthe manner in'which those costs were collected in this case deprived him ofdue process. 

## Lee's appellate argument directly invokes the JTexas Government Code. The Texas Supreme Court and the Texas Court ofCriminal Appeals have both held that challenges to the

i manner or means ofcollecting court costs under Section 501.014(e) ofthe Texas Government i 

### Code are civil matters. SeeJohnson, 280 S.W.3d at 866; Harrellv. State,286 S.W.3d 315 (Tex. 2009). In a concurring opinion inPerez,Judge Alcala made this point clear: "Proceedings under 

### GovernmentCode section501.014(e)to recover court fees and costs assessed against inmatesare civil in nature and are not part ofthe underlying criminal case." Perez,424 S.W.3d at 89 (Alcala, i J., concurring). Nothing inPerezor the line ofcases leading up to it would authorize an appellant 

### to raise an issue concerning the collection of costs under Section 501.014(e) of the Texas 

### Government Code in a directappeal of a criminal conviction.1 Accordingly, we do not have jurisdiction to addressLee's complaint in this appeal. Moreover, because (1) the noticeofwithdrawal is not a final, appealable order, and (2) Lee 

### failed to raise his civil issue with the trial court, this Court would not have civil jurisdiction to addressthe merit of Lee's complaint, even if properly before us. Notwithstanding the fact that the document Lee is challenging is entitled "Order to Withdraw Funds," previous cases make it clear 

### that this is a notice, not an order. See Goodspeed v. State, 352 S.W.3d 714, 715 (Tex. App.— 'Further, inArmstrong, the Texas CourtofCriminal Appeals specifically noted that "Appellantdoes notcontestany withdrawal orderissued by the trial court pursuant to the Texas Government Code or anyother collection effort. Instead, Appellantcontests theassessmentofthecosts andthesufficiency of theevidencetosupporttheattorney fees mandated bythebill ofcosts." Armstrong, 340S.W.3d at 766(emphasis added). 8

# L Texarkana2011,pet. denied) (citingHarrell, 286 S.W.3d at 316n.l).2 In order to secure afinal, appealable order on the matter, a defendant must first raise any issue regarding the collection of costs with the trial court. Id. (citing Jewell v. State,No. 06-10-00114-CV, 2011 WL 1642769, at 

### *1 (Tex. App.—Texarkana Apr. 29, 2011, no pet.) (mem. op.) ('"The trial court's ruling on the inmate's contest [to a withdrawal notification] is what can be appealed.'")); see Williams v. State, 332 S.W.3d 694, 698 (Tex. App.—Amarillo 2011, pet. denied) (citing Ramirez v. State, 318 

### S.W.3d 906, 908 (Tex. App.—Waco 2010, no pet.) (holding "[o]nly when [the withdrawal notification is] properly challenged and denied reliefis there a trial court order that is final from which the inmate . . . can appeal")). Here, because Lee failed to secure an order from the trial

2Forexample, inWebb v. State, 324 S.W.3d 229 (Tex. App.—Amarillo 2010, pets, denied) (percuriam), theCourtof Appeals noted, This document is not an "order'' in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, TEX. GOV'T CODE ANN. § 501.014(e) ([West] Supp. 2009), describes the process as a "notification by a court" directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule ofpriorities set by the statute, for the paymentof"any amountthe inmate is ordered to pay by orderofthe court." This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial. Ajudgment nisi triggers the issuance ofa capias and it serves as notice ofthe institution ofa bond forfeiture proceeding. It is not final or absolute, but may become final. Nisi means "unless," so ajudgment nisi is valid unless a party takes action causing it to be withdrawn. Similarly, a withdrawal notification issued pursuant to section 501.014(e), triggers a trust fund withdrawal, serves as noticeofthe collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification" to avoid confusion with an underlying court order or judgment ordering the payment ofa sum falling within at least one ofthe six priority categories listed in the statute. Id.at 230, n.l (citations omitted).«-t



### courtaddressing his civil lawissue, we would lackjurisdiction to hear Lee's argument, even had he raisedthe issue in a separate, civilappeal.3 Because we find no error related to the judgment ofconviction entered in this matter, we 

### affirmthatjudgment. Because we lackjurisdictionto hear Lee's pointof errorconcerningthe trial court's Order to Withdraw Funds, we dismiss Lee's second pointoferror for want of jurisdiction.

Date Submitted: January 7, 2015 Date Decided: April 9, 2015
Do Not Publish Ralph K. Burgess Justice

•5We note that Lee's notice of appeal states that Lee "wishes to appeal from the conviction to the Sixth Court of Appeals on errors raised by written motion and ruled on before trial and on errors arising during and subsequent to trial." Rule 25.1 ofthe Texas RulesofAppellate Procedure addressing perfectionofan appeal in civil cases, requires a notice of appeal to identify the date ofthejudgment or order appealed. Tex. R. App. P. 25.1(d). Lee's notice of appeal was filed pursuant to Rule 25.2 ofthe Texas Rules ofAppellate Procedure since it (1) clearly states that he is appealing his conviction, and (2) fails to state that he is appealing from any order orjudgment related to his civil complaint. In the absence of a specific designation ofthe "judgment or order appealed from" as required by Rule 25.1(d)(2), we will not presume that a notice of appeal filed on direct appeal of a criminal case also invokes this Court's civil jurisdiction. 10