Bennett Keith O'Bannon v. State, 2014 Tex. App. LEXIS 6221

O’Bannon was convicted of indecency with a child in Harris County; the court filed an Opinion on Remand after a prior remand and Johnson decision; the State cross-petitioned to modify jail time credits; a supplemental record added sheriff’s fee and DNA-related costs; issues challenged included sheriff’s fees, DNA fee, and a motion-for-new-trial/arrest-of-judgment hearing; the court modified the judgment on remand and affirmed as modified.
The court on remand addressed four issues and ultimately affirmed the judgment as modified, reflecting jail credit from 2011-07-08 to 2012-07-11.
The sheriff’s fee for summoning witnesses ($110) was challenged but the court found it supported by documenting 11 witnesses summoned in multiple instances.
The DNA Testing Fee ($250) was challenged as unconstitutional under separation of powers; the court held the statute’s allocation to the highway fund and the criminal justice planning account relates to DNA testing and related duties, thus not unconstitutional in all applications.
Appellant argued for a hearing on his motions for new trial/arrest of judgment; the court held that, lacking affidavits for outside-record facts, a hearing was not required and did not abuse its discretion.
On remand, the court modified the judgment to reflect jail time actually served and affirmed as modified.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sheriff’s fee is valid.	O’Bannon contends the sheriff’s fee is unsupported.	State maintains 11 witnesses summoned justifies $110.	Valid; supported by record.
Whether the DNA Testing Fee is constitutional under separation of powers.	O’Bannon asserts Article 102.020(h) impermissibly taxes the judiciary.	State asserts funds relate to DNA testing and DPS functions.	unconstitutional in all applications? No; overruled; constitutional as applied.
Whether a hearing was required on motions for new trial/arrest of judgment.	O’Bannon requested a hearing and alleged outside-record facts.	State notes lack of affidavits to support outside-record issues.	No abuse of discretion; no mandatory hearing.
Whether the judgment should be modified on remand to reflect jail credits.	O’Bannon disputed the jail credit amount.	State seeks correction as necessary.	Affirmed as modified reflecting jail time credit.

Carson v. State, 159 S.W.2d 126 (Tex. Crim. App. 1942) (facial concerns on costs and separation of powers; tax vs. proper costs)
Salinas v. State, 426 S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014) (consolidated court costs and separation of powers discussion)
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) (presumption of validity of statutes; burden on challenger)
Bearden v. State, 648 S.W.2d 688 (Tex. Crim. App. 1983) (affidavits required for new-trial motions alleging outside-record facts)
Flores v. State, 18 S.W.3d 796 (Tex. App.—Austin 2000, no pet) (procedural requirements for new-trial motions)
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (mandate on remand and prior disposition handling)