Justin Burl Pope v. State
02-17-00145-CR
| Tex. App. | Sep 28, 2017Background
- Justin Burl Pope pleaded open to aggravated sexual assault of a child under 14 and was convicted and sentenced to 35 years’ imprisonment.
- The trial court assessed total court costs of $639, including a $133 consolidated court cost under Tex. Loc. Gov’t Code § 133.102(a)(1).
- Pope appealed, raising (1) an Eighth Amendment challenge that his 35-year sentence is grossly disproportionate, and (2) a challenge to portions of the $133 consolidated court cost as violating the Texas Constitution’s Separation of Powers Clause.
- The State argued the sentence was within statutory limits and that the consolidated cost assessment complied with law as amended by the Legislature.
- The court addressed preservation of the Eighth Amendment claim and the effect of Salinas v. State and subsequent legislative amendments to § 133.102 on court-cost relief.
Issues
| Issue | Plaintiff's Argument (Pope) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Pope’s 35-year sentence is grossly disproportionate in violation of the Eighth Amendment | Sentence is grossly disproportionate to the offense | Sentence is within statutory range and not excessive | Forfeited: Pope did not preserve the claim at trial or in a new-trial motion; overruled on the merits as not an "exceedingly rare" case |
| Whether portions of the $133 consolidated court cost violate Texas Separation of Powers | Portions allocated to certain accounts (as in Salinas) are unconstitutional and should be removed from Pope’s assessment | The Legislature redirected the challenged allocations before Salinas mandate, altering who may obtain relief | Sustained insofar as subsections (e)(1) and (e)(6) are unconstitutional under Salinas, but relief to reduce Pope’s assessed total is precluded because he did not have a PDR pending when Salinas issued and the Legislature changed allocations before mandate; judgment affirmed overall |
Key Cases Cited
- Kim v. State, 283 S.W.3d 473 (Tex. App.—Fort Worth 2009) (disproportionate-sentence claims must be preserved)
- Acosta v. State, 160 S.W.3d 204 (Tex. App.—Fort Worth 2005) (same preservation principle)
- Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013) (sentencing issues preserved by objection when sentence pronounced)
- Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017) (holding parts of § 133.102(e) facially unconstitutional and limiting retroactive relief; directed modification of consolidated cost where applicable)
- Ex parte Chavez, 213 S.W.3d 320 (Tex. Crim. App. 2006) (punishment within statutory limits is generally not excessive absent "exceedingly rare" circumstances)