Isreal Montoya Alcaraz v. State
481 S.W.3d 712
| Tex. App. | 2015Background
- Appellant Israel Montoya Alcaraz pleaded guilty to aggravated sexual assault of a child and possession of child pornography without an agreed punishment recommendation; sentenced to 50 and 10 years, concurrent; court costs of $679 assessed in each case.
- Neither plea was part of a plea bargain and the record does not show waiver of appeal rights; trial court certified right to appeal.
- Judgments erroneously contained a special finding stating "Appeal waived. No permission to appeal granted."
- Clerk’s bills of costs included a statutorily mandated $250 DNA-record fee and both a $5 fee for "arrest without warrant/capias" and a $50 fee for "serving capias."
- Appellant challenged (1) the DNA-testing fee as an unconstitutional tax, (2) the $5 sheriff’s fee as unsupported, and (3) the waiver-of-appeal language in the judgments; the State agreed the appeal-right language was incorrect.
Issues
| Issue | Plaintiff's Argument (Alcaraz) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Right to appeal language in judgment | Judgment wrongly states appellant waived appeal; request to delete finding | State agrees appellant did not waive appeal; court certifications show right to appeal | Modified judgments to delete the "appeal waived" finding; issue sustained |
| $250 DNA-testing fee constitutionality | DNA fee is an unconstitutional tax (relies on Peraza I/Carson) | Fee is statutorily required under art. 102.020; Court of Criminal Appeals in Peraza upheld fee | Overruled; DNA fee upheld as constitutional |
| $5 sheriff’s fee for arrest without warrant | Could not have been arrested both with and without warrant; $5 fee unsupported | Art. 102.011(e) allows assessment of fees for each arrest arising from the convicted offense; record shows an additional warrantless arrest (evading arrest) | Overruled; $5 fee supported by record |
Key Cases Cited
- Ex parte Broadway, 801 S.W.2d 694 (Tex. Crim. App. 1990) (waiver of appeal can be shown by record of plea bargain)
- French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992) (appellate courts may reform judgments to make the record speak the truth)
- Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015) (Court of Criminal Appeals holds DNA-record fee constitutional; revises Carson standard)
- Ex parte Carson, 159 S.W.2d 126 (Tex. Crim. App. 1942) (historic rule that court costs must be necessary or incidental to trial)
- Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (court costs related to recoupment of judicial-resource expenses)
- LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986) (Open Courts analysis: filing fees to general revenue may unreasonably restrict access to courts)