Description: Appellant was indicted for the offense of criminal mischief causing a pecuniary loss of $1,500 or more but less than $20,000, a state jail felony. Appellant entered a plea agreement with the State wherein she pleaded “guilty” to the indictment in exchange for the State’s punishment recommendation of four years deferred adjudication community supervision. The trial court entered its written order placing Appellant on deferred adjudication community supervision on April 6, 2015. Subsequently, Appellant pleaded “true” to violating her community supervision and was sentenced to twelve months imprisonment on June 12, 2017.
COURT COSTS In Appellant’s sole issue, she contends that the trial court erred by imposing unconstitutional court costs.
Applicable Law The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). The consolidated fee statute requires a defendant to pay a court cost of $133.00 on conviction of a felony. TEX. LOC. GOV’T. CODE ANN. § 133.102(a)(1) (West Supp. 2017). The money received is divided among a variety of state government accounts according to percentages dictated by the statute. See id. § 133.102(e) (West Supp. 2017); Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). In Salinas, the court of criminal appeals held the statute to be unconstitutional with respect to two of these accounts––an account for “abused children’s counseling” and an account for “comprehensive rehabilitation.” See Salinas, 523 S.W.3d at 105. As a result, the court set forth that any fee assessed pursuant to the statute must be reduced pro rata to eliminate the percentage of the fee associated with these accounts. See id. The court further held that its holding applies only to (1) a defendant who raised the appropriate claim in a petition for discretionary review before the date of the court’s opinion, if that petition is still pending on that date and the claim would otherwise be properly before the court on discretionary review or (2) a defendant whose trial ends after the mandate in Salinas issues. See id. at 112–13. Analysis The State argues that Appellant waived her right to consideration of this issue because she failed to appeal timely the assessment of costs at the time the trial court originally entered its order placing her on community supervision. Where an appellant fails to file a notice of appeal within thirty days of being placed on deferred adjudication community supervision, an appeal raising issues concerning court costs after final adjudication is not timely with respect to the court costs that were assessed in the order of deferred adjudication. See Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014); see also Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013) (defendant whose community supervision was revoked forfeited challenge to the court appointed attorney’s fees as court costs by failing to bring direct appeal from order originally imposing community supervision); Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). When Appellant pleaded “guilty” and was placed on deferred adjudication community supervision, she explicitly waived her right to appeal. The record further reflects that Appellant
acknowledged in writing her obligation to pay court costs as a condition of her community supervision. The trial court’s deferred adjudication order sets forth the amount of court costs at $289.00. Further, it appears from the record that Appellant paid her court costs.1 Thus, we conclude that Appellant waived her right to appeal the assessment of the costs at issue. See Perez, 424 S.W.3d at 85; Wiley, 410 S.W.3d at 318. Nevertheless, Appellant urges this court to modify the judgment and refund the fees that have been held by the Salinas court as unconstitutional based upon the recent United States Supreme Court ruling in Nelson v. Colorado, 581 U.S. __, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017). Appellant acknowledges that her trial ended before the mandate in Salinas issued but argues that the holding in Nelson requires us to apply Salinas to all cases on appeal after the mandate. We decline to do so. In Nelson, one petitioner was acquitted of the charges against her and one petitioner’s conviction was vacated; both sought refunds of monies paid and allocated to costs, fees, and restitution. See id., 581 U.S. __, 137 S. Ct. at 1250-51. The Nelson opinion held that Colorado’s Exoneration Act, which conditioned a refund of monies paid as a result of criminal prosecution on a defendant initiating a civil proceeding and proving his innocence by clear and convincing evidence, violated petitioners’ due process rights under the Fourteenth Amendment because both petitioners were in the position of enjoying the presumption of innocence. See id.; see also U.S. CONST. amend. XIV. We are not persuaded that Nelson impacts Salinas. In Salinas, the court of criminal appeals held that because its ruling was based on the separation of powers provision of the Texas Constitution, it was free to decide which retroactivity rules apply. Salinas, 523 S.W.3d at 11112 (stating that the Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) retroactivity rule that newly announced federal constitutional rules must be retroactively applied to all cases pending on direct review or not yet final when the rule was announced is binding upon the states only when federal constitutional errors are involved but does not bind the states on matters of state law). The court concluded that its new state constitutional rule did not involve the personal rights of a defendant and therefore it would conduct a Stovall analysis,
1 The record reflects that the State’s motion to adjudicate Appellant’s guilt did not allege any violation of her financial obligations, only that she failed to perform her community service, used and possessed marijuana, and failed to submit to random drug tests. Further, the trial court’s order adjudicating guilt and order to withdraw funds reflect that $0.00 is due for court costs.
which requires consideration of (1) the purpose to be served by the new standards, (2) the extent of reliance by law enforcement authorities on the old standards, and (3) the effect a retroactive application of new standards would have on the administration of justice. See id. at 112; see also Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199 (1967), overruled by Griffith, 479 U.S. 314, 107 S. Ct. 708. The court noted that the outcome of this balancing test usually turned on whether the new rule impacts the truth-finding function of the courts or is merely procedural. See Salinas, 523 S.W.3d at 112. Holding that the costs a defendant pays has nothing to do with truth-finding, that the State’s reliance interests are heavy, and that retroactivity could create large administrative burdens on court clerks throughout the state, the court determined that its ruling should only apply prospectively and to defendants who raised the appropriate claim in a petition for discretionary review before the date of the opinion. See id. at 112-13. Thus, because the Nelson holding was predicated upon a violation of the due process clause under the Fourteenth Amendment, and the Salinas holding is predicated upon the separation of powers doctrine under the Texas Constitution, which does not affect a defendant’s personal rights, we decline to apply Nelson to Appellant even had she preserved error. See id.; see also Nelson, 581 U.S. __, 137 S. Ct. at 1250-51. Further, we are required to comply with the instructions set out in the court of criminal appeals’ opinions because they are binding authority on this Court. See Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Fielder v. State, No. 12-11-00090-CR, 2012 WL 951916, at *2 (Tex. App.—Tyler March 14, 2012, pet ref’d) (mem. op., not designated for publication); see also TEX. CONST. art. V, § 5(a) (stating that the court of criminal appeals is final authority for criminal law in Texas). Accordingly, based on the foregoing reasons, we overrule Appellant’s sole issue.
Outcome: Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.