t

NO. 06-14-00112-CR

S6ZI5

ORIGINAL

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IN THE COURT OF

CRIMINAL APPEALS

AUSTIN, TEXAS

.JRECELVED IN

COURT OF CRIMINAL APPEALS

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

COURT OF CRIMINAL APPEALS PRO SE ri.ni.3

JUL 02 2015

Abe! Acosta, Clerk
June 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, Texas

76367

Ia
TABLE 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)... 10
INDEX 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

ii
STATEMENT 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 speakerphone 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, Texas

76367

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 of Appeals

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 Burgess
MEMORANDUM 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 of a 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 Department of Criminal Justice. The jury also imposed a $5,000.00 fine.

The trial court imposed sentence in open court and remanded Lee to custody. The next day, the

trial court signed the judgment of conviction and an order requiring the withdrawal offunds 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 Article 38.141 of the Texas Code of Criminal Procedure.

See Tex. Code Crim. Proc. Ann. art. 38.141 (West 2005). In his second point oferror, Lee argues

that the State denied him due process by ordering the withdrawal offunds from his inmate account

without notice or a hearing. Because we find the corroborating evidence satisfied Article 38.141 's

requirements, we overrule Lee's first point of error. Because Lee failed to properly present his

second point of error, we overrule that point as well.

I. First Point of Error: 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 a particular location neara cemetery. He also
told Taylor he would be walking a dog and would meet him there. TDPS Investigating Agent

Chad Brock and three other officers listened to the call as it occurred. Brock and the other officers

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 couldrecordthe transaction. Healso gave him $225.00 incash to purchase the cocaine. Brock

and the otherofficers followed Taylorat a distance so thatthey could provide assistance to Taylor

if something went wrong during the transaction. They saw Taylor meet a man walking his dog

and watched them walking together. When he reconnected with the officers, Taylor produced a

baggie, which was later determined to contain approximately 2.56 grams of cocaine. He did not

have in his possession any ofthe money given to him by Brock.

B. Standard ofReview

In a case such as this, any testimony from a confidential informant must be corroborated

by other evidence tending to connect the defendant with the alleged offense. Tex. Code Crim.

PROC. Ann. art. 38.141. We review confidential informant corroboration in the same manner and

by the same measure as we would review the testimony from an accomplice 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 be sufficient to corroborate the [confidential informant]

testimony, taken together, rational jurors could conclude that this evidence

sufficiently tended to connectappellant to the offense."
Cantelon v. 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 connect the accused to the commission ofthe offense, even if it 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. Gill v. 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 of evidence that would tend to connect Lee to the offense,

even if Taylor's testimony were eliminated. First, Taylor placed a telephone 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 of whom 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 also shows theirmovements, including contactbetween their hands. Thestill image

screen captures consist of three relevant photographs. In those images, it appears that Lee has

something in his hand that could be a plastic baggie. The images also showthat Lee's hand was

empty after his contact with Taylor.

Finally, Lee arranged to sell Taylor one-quarter of an ounce of cocaine for$225.00. Taylor

was searched immediately prior to his encounter with Lee, and he had no money or illegal drugs

in his possession. After giving Taylor $225.00, Agent Brock released him to meet Lee; upon

returning, Taylor was again searched and was found topossess a baggie ofwhat was later identified

as 2.56 grams of cocaine. Taylor did not have the $225.00 upon the second search. Accordingly,

we conclude that the evidence is sufficient to tend to connect Lee to the commission ofthe offense

asrequired by Article 38.141. The evidence istherefore sufficient to support the juryverdict, and

Lee's first point of error is overruled.

II. We Do Not Have Jurisdiction Over Lee's Claims Related to the Notice ofWithdrawal

of Funds from His Inmate Account

A. Lee's Due Process Argument

Lee argues that the order directing the collection of a fine and court costs from his inmate

account was entered in a manner that violated his right to due process of law. In the summary of

his argument, Lee recites the following procedural facts:

The trial judge signed a judgment of conviction by a jury on June 18, 2014. The

court clerk prepared and filed a bill of costs on June 18, 2014. The court clerk

notified appellant [sic] counsel of his appointment by mail dated June 19, 2014.

Thereafterf,] the court clerk filed an order 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 evidence of prior 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 the beginning." The complained-oforder attached 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 appeal of his or her criminal

conviction, the cost challenge claim "arises over the enforcement ofstatutes governed by the Texas

Code ofCriminal Procedure, thereby making it a criminal matter." Armstrong v. 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 of costs 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 evidence supporting a trial court's assessment of court-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 a challenge to the basis ofthe court costs assessed

or a complaint about the evidentiary sufficiency of the assessment of court costs or attorney fees.

Instead, Lee challenges the collection ofthe costs by questioning whether the trial court's notice

of withdrawal violated due process requirements. Lee supports his argument by citing to three

cases; however, all three ofthese cases suggest that Lee's point of error 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 of costs is a civil matter. See generallyAbdullah v.

State, 211 S.W.3d 938 (Tex. App.—Texarkana 2007, no pet.). In the second case Lee cites, the

Texas Court ofCriminal Appeals found that it lacked jurisdiction 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 ofAppeals 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 appeal ofthat 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 order ofadjudication.

Id. Again, because Lee is not challenging the sufficiency ofthe evidence supporting the assessed

court costs, Perez is inapplicable.

The line of cases discussing cost challenges raised for the first time on appeal of criminal

convictions beginning with Armstrong and leading to Perez dealt exclusively with challenges to

the assessment of court costs under the Texas Code of Criminal 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, butrather that the manner in'which those costs were collected in this

case deprived him of due process.

Lee's appellate argument directly invokes the JTexas Government Code. The Texas

Supreme Court and the Texas Court of Criminal Appeals have both held that challenges to the

i

manner or means of collecting court costs under Section 501.014(e) of the Texas Government

i

Code are civil matters. See Johnson, 280 S.W.3d at 866; Harrell v. State, 286 S.W.3d 315 (Tex.

2009). In a concurring opinion in Perez, Judge Alcala made this point clear: "Proceedings under

GovernmentCode section 501.014(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 in Perez or 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 direct appeal of a criminal conviction.1 Accordingly, we do not have

jurisdiction to address Lee's complaint in this appeal.

Moreover, because (1) the notice ofwithdrawal 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, in Armstrong, the Texas Court ofCriminal Appeals specifically noted that "Appellant does not contest any

withdrawal order issued by the trial court pursuant to the Texas Government Code or any other collection effort.

Instead, Appellant contests the assessment ofthe costs andthe sufficiency of theevidence to support theattorney fees

mandated bythe bill of costs." Armstrong, 340S.W.3d at 766(emphasis added).

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L

Texarkana 2011, pet. denied) (citingHarrell, 286 S.W.3d at 316 n.l).2 In order to secure a final,

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 relief is 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

2For example, in Webb v. State, 324 S.W.3d 229 (Tex. App.—Amarillo 2010, pets, denied) (per curiam), theCourt of

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 of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay

by order ofthe 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. A judgment nisi triggers the issuance of a capias and it serves as notice of the

institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. Nisi

means "unless," so a judgment 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 notice ofthe 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 of a sum falling within at least one ofthe

six priority categories listed in the statute.

Id. at 230, n.l (citations omitted).
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court addressing his civil law issue, we would lackjurisdiction to hear Lee's argument, even had

he raisedthe issue in a separate, civil appeal.3

Because we find no error related to the judgment of conviction entered in this matter, we

affirm thatjudgment. Because we lackjurisdictionto hear Lee's pointof error concerning the trial

court's Order to Withdraw Funds, we dismiss Lee's second point of error for want ofjurisdiction.

Date Submitted: January 7, 2015

Date Decided: April 9, 2015

Do Not Publish

Ralph K. Burgess

Justice

•5

We 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 Rules of Appellate Procedure addressing perfection of an appeal in civil cases, requires

a notice of appeal to identify the date of the judgment 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 of Appellate Procedure since it (1) clearly states that he is

appealing his conviction, and (2) fails to state that he is appealing from any order or judgment related to his civil

complaint. In the absence of a specific designation of the "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.

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