Eric Martin v. State, 14-14-00762-CR

Appellant pleaded guilty without a sentencing recommendation to two counts of aggravated sexual assault of a child and was sentenced to 15 years on each count, concurrent. He does not challenge guilt or sentence on appeal.
Each judgment ordered payment of “all fines, court costs, and restitution,” but assessed only court costs: $635.00 in one case and $594.00 in the other.
Each bill of costs included a $250 DNA testing fee (art. 102.020) and a $50 fee for “serving capias” (art. 102.011).
Appellant challenged (1) the constitutionality of the DNA fee as a facially invalid tax, (2) the capias service fee as unsupported because record did not show execution, and (3) the judgments’ statements that he waived his right to appeal.
Court reviewed statutory basis for costs (not evidentiary sufficiency) and considered controlling appellate and Court of Criminal Appeals precedent in upholding costs and ordering correction of the judgments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
DNA testing fee validity	DNA fee is a facially unconstitutional tax and should be removed	Fee is authorized by art. 102.020 for offenses listed in Gov’t Code §411.1471, including §22.021	Fee upheld; appellant did not meet heavy burden for facial invalidity; Peraza (Crim. App.) rejects facial challenge
Capias serving fee	Fee should be removed because record lacks proof a capias was executed	Bill of costs provides factual basis; art. 102.011 requires fee whether or not capias executed	Fee upheld; bill of costs suffices and statute imposes fee even if warrant not executed
Appeal-right recital in judgment	Judgment incorrectly states appellant waived appeal; should be corrected to permit appeal on costs	State agrees judgment should be modified	Judgment modified: delete "APPEAL WAIVED" language; appellant may appeal

Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (court costs are nonpunitive recoupment of judicial expenses).
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (review of court costs asks whether cost has statutory basis, not whether proven at trial).
Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015) (reversing appellate decision and rejecting facial challenge to art. 102.020 DNA fee).
O’Bannon v. State, 435 S.W.3d 378 (Tex. App.—Houston [14th Dist.] 2014) (upholding DNA fee against facial challenge).
Ex parte Moss, 446 S.W.3d 786 (Tex. Crim. App. 2014) (definition and context for capias in pre-judgment proceedings).
Guia v. State, 220 S.W.3d 197 (Tex. App.—Dallas 2007) (authorizing modification of judgments to correct incorrect waiver-of-appeal recitations).