### IN THE TENTH COURT OF APPEALS No. 10 - 16 - 00217 - CR ABRAHAM C. MARTINEZ , Appellant v. THE STATE OF TEXAS , Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2015 - 2344 - C2 O P I N I O N In this appeal, appellant, Abraham Chavez Martinez, complains that: (1) the trial court abused its discretion in ordering the sentence in this case to run consecutive to a prior sentence in which appellant was on parole; and (2) the assessment of court co sts violates his equal

- protection rights in light of the Texas Supreme Court’s recent pronouncement in Campbell v. Wilder , 487 S.W.3d 146, 152 (Tex. 2016). Because the trial court erred in ordering the sentence in this case to run consecutive to a prior s entence inM artinez v. State Page 2

which appellant was on parole, we modify the trial court’s cumulation order and affirm the judgment as modified. I. T HE T RIAL C OURT ’ S C UMULATION O RDER In his first issue, appellant contends that the trial court abused its discretion in ordering t he sentence in this case to run consecutive to a prior sentence in which he was on parole. 1 The State responds by asserting that a sentence “ceases to operate” when a defendant “makes parole,” unless the parole has been revoked prior to ordering a
consecu tive sentence in a new case. See Byrd v. State , PD
- 0213
- 15, 2016 Tex. Crim. App. LEXIS 1047, at *11 (Tex. Crim. App. Sept. 14, 2016) (“Without any evidence in the record that appellant’s parole on the 2008 offense was revoked prior to being sentenced for this offense, we conclude that appellant had ‘made parole’ on that original offense at the time of sentencing in this case. Therefore, for the purpose of Article 42.08(a)’s and Section 508.150(b)(2)’s application to these facts, appellant’s 2008 sentence had already ‘ceased to operate’ when he was sentenced in this case. This means that there was no earlier sentence still in operation upon which to stack these sentences. The cumulation orders are invalid.”). Because of this, and because the trial testim ony established that appellant had “made parole” at the time of the offense and was still on parole throughout trial, the State concedes that the “judgment should be modified accordingly to delete the provision

1 The aforementioned prior sentence originated in the 54th District Court in Cause Number 2011

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- C2 for unlawful possession with intent to deliver a controlled substance

— methamphetamine.M artinez v. State Page 3

that this sentence not begin to operate until the sentence in 2011

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- C2 ceased to operate.” After our review of the record, we agree that the judgment should be modified. Accordingly, we sustain appellant’s first issue and modify the trial court’s judgment to delete the provision ordering the se ntence in this case to run consecutively with the sentence imposed in cause number 2011

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- C2. II. C OURT C OSTS In his second issue, appellant argues that the statutes authorizing the assessment of court costs against indigent criminal defendants are unconst itutional and violate his right to equal protec tion of the law. We disagree. Upon conviction, the imposition of court costs is mandatory. T EX . C ODE C RIM . P ROC . A NN . art. 42.16 (West 2006) (“If the punishment is any other than a fine, the judgment . . . s hall adjudge the costs against the defendant . . . .”). The allowable types and amounts of costs are set by statute, see id. ch. 102 (West 2006 & Supp. 2016), and no cost may be imposed unless it is “expressly provided by law.” Id. art. 103.002 (West 200 6). Moreover, court costs need not be proven at trial because they are not part of the defendant’s guilt or the sentence to be imposed. See, e.g., Martin v. State , Nos. 14
- 14
- 00761
- CR & 14
- 14
- 00762
- CR, 2015 Tex. App. LEXIS 12414, at *2 (Tex. App.

— Houston [14th Dist.] Dec. 8, 2015, no pet.) (mem. op., not designated for publication). “Rather, they are ‘nonpunitive recoupment of the costs of judicial resources expended in connection withM artinez v. State Page 4

the trial of the case.’” Id. (quoting Weir v. State , 278 S.W.3d 364, 3 65
- 66 (Tex. Crim. App. 2009)). Here, appellant was ordered to pay $434 in court costs. On appeal, appellant seeks to delete the assessment of court costs because the imposition of such costs violates his equal

- protection rights, especially because the Texas Supreme Court has held “[i]t is an abuse of discretion for any judge, including a family law judge, to order costs in spite of an uncontested affidavit of indigence.” Campbell , 487 S.W.3d at 152. More specifically, appellant asserts that “[t]he var ious statutes under which court costs were assessed in this case are unconstitutional as applied to [appellant] because similarly situated indigent civil litigants are not required to pay court costs and no rational basis exists for treating indigent crimi nal defendants and indigent civil litigants differently.” In determining the constitutionality of a statute, we begin with the presumption that it is valid and that the legislature did not act arbitrarily or unreasonably in enacting the statute. Rodrigue z v. State , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); see State v. Rosseau , 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). The burden of establishing the unconstitutionality of a statute falls on the party seeking to challenge the statute. Rosseau , 396 S.W.3 d at 557. “The Equal Protection Clause of the Fourteenth Amendment requires that ‘all persons similarly situated shall be treated alike’ under the law.” Id. (quoting Plyler v. Doe , 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982); Wood v. State , 18 S.W.3d 642, 651 (Tex. Crim. App. 2000)). “The party challenging a statute on equalM artinez v. State Page 5

protection grounds bears the burden of showing that the statutory classification is not rationally related to a legitimate state interest, where interests other t han fundamental rights or suspect classifications are affected.” Wood , 18 S.W.3d at 651. It is undisputed that neither fundamental rights nor suspect classifications are implicated in this case; as such, the rational

- basis test applies. Under the ration al

- basis test, similarly

- situated individuals must be treated equally unless there is a rational basis for not doing so. Aguirre v. State , 127 S.W.3d 883, 886 (Tex. App.

— Austin 2004, no pet.) (citing Whitworth v. Bynum , 699 S.W.2d 194 (Tex. 1985); Mauldin v. State Bd. of Plumbing Exam’rs , 94 S.W.3d 867, 873 (Tex. App.

— Austin 2002, no pet.)). “We will uphold a law creating a classification if there is ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.’” Id. (quoting Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc. , 508 U.S. 307, 313

- 14, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993); Mauldin , 94 S.W.3d at 873). “Where there are plausible reasons for legislative action, our inquiry is at an end. Id. (citing Beach Commc’ns , 508 U.S. at 313
- 14). “In fact, the party challenging the legislative classification has the burden of negating every conceivable basis which might support it.” Id. (citing Beach Commc’ns , 508 U.S. at 315). Contrary to appellant’s assertion, i ndigent civil litigants and indigent criminal defendants are not similarly

- situated persons. In Campbell , the Texas Supreme Court noted that Texas Rule of Civil Procedure 145, which pertains to a civil litigant’s ability toM artinez v. State Page 6

afford to pay costs, “is but on e manifestation of the open courts guarantee that ‘every person . . . shall have remedy by due course of law.’” 487 S.W.3d at 152 (quoting T EX . C ONST . art. 1, § 13). In other words, if not for the provisions of Rule 145, an indigent person, seeking the r emedies afforded to non

- indigent persons through the civil courts, would be prevented from accessing the courts. See T EX . R. C IV . P. 145. Indigent criminal defendants face no such barrier. In fact, indigent criminal defendants are in court solely because of a criminal charge brought by the State, and court costs are not assessed, unless a conviction is obtained. Furthermore, indigent criminal defendants are afforded a number of advantages that are unavailable to indigent civil litigants, including the ri ght to court

- appointed counsel at trial and on the first direct appeal, see U.S. C ONST . amend VI; Gideon v. Wainwright , 372 U.S. 335, 344

- 45, 83 S. Ct. 792, 797, 9 L. Ed. 2d 799 (1963); the right to experts, see Ake v. Oklahoma , 470 U.S. 68, 76

- 77, 105 S. Ct. 1087, 1092
- 93, 84 L. Ed. 2d 53 (1985); and the right to a free record on appeal, see Griffin v. Illinois , 351 U.S. 12, 18

- 19, 76 S. Ct. 585, 590
- 91, 100 L. Ed. 891 (1956). Given the above, we cannot say that indigent criminal defendants are similarly situated as indigent civil litigants. Additionally, as described in Weir , the Court of Criminal Appeals has stated that the statutes “authorizing an assessment of court costs against convicted defendants, was intended by the Legislature as a non

- punitive r ecoupment of the costs of judicial resources expended in connection with the trial of the case.” 278 S.W.3d at 365

- 66M artinez v. State Page 7

(internal quotations omitted) (citing People v. Jones , 223 Ill. 2d 569, 861 N.E.2d 967, 975, 308 Ill. Dec. 402 (Ill. 2006) (noting that u nlike a punitive “fine” imposed as part of a convicted defendant’s sentence, a “cost” does not punish a defendant, but rather is a collateral consequence of the defendant’s conviction that is compensatory in nature); State v. Kula , 262 Neb. 787, 635 N.W.2d 252 (Neb. 2001) (stating that “costs” are purely compensatory and not punitive)); see, e.g., Martin , 2015 Tex. App. LEXIS 12414, at *2; Shead v. State , Nos. 07
- 15
- 00164
- CV, 07
- 15
- 00165
- CV, & 07
- 15
- 00166
- CV, 2015 Tex. App. LEXIS 8411, at *7 (Tex. App.

— Amar illo Aug. 11, 2015, no pet.) (mem. op.); Hurst v. State , No. 04
- 13
- 00465
- CR, 2014 Tex. App. LEXIS 5645, at **9

- 10 (Tex. App.

— San Antonio May 28, 2014, pet. ref’d) (mem. op., not designated for publication). Therefore, even if equal protection
was a concer n, we believe that the non

- punitive recoupment of costs associated with the trial of the case constitutes a rational basis for different treatment that advances a valid public purpose and a legitimate governmental interest. See Ex parte Carson , 143 Tex. C rim. 498, 159 S.W.2d 126, 127, 130 (1942) (holding that fees which are “neither necessary nor incidental to the trial of a criminal case” are not legitimate court costs that may be assessed against a defendant). As such, we cannot say that appellant has m et his burden in showing that he was denied equal protection of the law through the assessment of court costs upon his conviction. See Beach Commc’ns , 508 U.S. at 315; Rosseau , 396 S.W.3d at 557; see also Aguirre , 127 S.W.3d at 886. We overrule appellant ’s second issue.M artinez v. State Page 8 III. C ONCLUSION Based on the foregoing, we modify the trial court’s judgment to delete the provision ordering the sentence in this case to run consecutively with the sentence imposed in cause number 2011

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- C2 and affirm the judgment as modified.

AL SCOGGINS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed as modified Opinion delivered and filed December 7, 2016 Publish [CR25]