Moliere v. State, 574 S.W.3d 21

Appellant convicted of misdemeanor assault family violence; judgment affirmed by a panel of the court.
Challenged district clerk's fee as facially unconstitutional because statute directs revenue to the general fund rather than directly to the clerk.
Panel held the fee constitutional under Tex. Code Crim. Proc. art. 102.005(c) and precedent that court costs may recoup judicial-resource expenses.
Panel relied on Peraza and related authority rejecting facial challenges based on how revenues might be spent in practice.
Appellant sought en banc reconsideration raising Apprendi-related due-process concerns about jury findings on family-violence enhancement and argued the panel misstated law on when illegal-sentence claims may be raised.
A dissent would grant en banc review to correct two errors: (1) the panel suggested an illegal-sentence claim must be meritorious before it may be raised on appeal; (2) the panel misstated law by implying a defendant must first prove a statute unconstitutional to challenge an illegal sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of district clerk's fee	Fee unconstitutional because statute sends revenue to general fund, not the clerk	Fee recoups legitimate clerical/judicial costs listed in art. 102.005 and fits recoupment category	Fee upheld as constitutional; facial challenge rejected
Reliance on how revenues might be spent	Revenues "might" be used improperly so statute facially invalid	Facial challenge cannot succeed merely by hypothesizing improper spending; statutory purpose controls	Court follows Peraza: speculative misuse insufficient for facial invalidation
Preservation and timing of illegal-sentence claims	Illegal-sentence issues can be raised on appeal even if not meritorious	Panel implied claim must be meritorious first	Dissent: panel erred by suggesting meritoriousness prerequisite; illegal-sentence claims may be raised on appeal
Apprendi / jury finding on family-violence element	Jury must have determined family-violence element per Apprendi; question answered by conviction	Trial court permissibly took judicial notice under art. 42.013; conviction supports finding	Panel affirmed conviction; dissent urged en banc review to address Apprendi issue further

Peraza v. State, 467 S.W.3d 504 (Tex. Crim. App.) (facial challenges cannot rest on speculative post-enactment spending)
Weir v. State, 278 S.W.3d 364 (Tex. Crim. App.) (court costs should relate to recoupment of judicial-resource costs)
Davis v. State, 519 S.W.3d 251 (Tex. App.—Houston [1st Dist.]) (upheld district clerk's fee against facial challenge)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing punishment beyond statutory maximum must be submitted to jury)
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App.) (sentence outside statutory range is illegal and void)
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App.) (facial constitutional challenge cannot be raised for first time on appeal)
Ex parte Beck, 541 S.W.3d 846 (Tex. Crim. App.) (discusses waiver exceptions when a statute is declared unconstitutional)