Kay v. State, 01-13-00595-CR, from First Court of Appeals in Houston, Post-McNeely Warrantless Blood Draw

Warrantless Blood Draw Upheld in Houston First Court of Appeals.  The First Court of Appeals upheld the denial of a motion to suppress blood under McNeely.  In its decision, the Court noted that the defendant had not challenged the constitutionality of the statute itself.  This follows the First Court's decision in Perez, No. 01-12-01001-CR (rehearing pending) and is contrary to the Fourteenth Court's decision in Douds,  14-12-00642-CR (PDR requested).

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See more on this at my criminal procedure blog.
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Opinion issued July 24, 2014

In The Court of Appeals

For The First District of Texas

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NO. 01-13-00595-CR

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MILTON WAYNE KAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 260th District Court

Orange County, Texas

Trial Court Case No. D-120519-R

MEMORANDUM OPINION

Appellant Milton Wayne Kay was charged by indictment for felony driving while intoxicated (“DWI”). See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2013). The indictment further alleged an enhancement for two prior driving while intoxicated convictions, in 1989 and 2000. Kay moved to quash the indictment,

 arguing that his prior DWI convictions could not be used to enhance his DWI charge to a felony because they were over ten years old, and the trial court denied his motion. Kay also moved to suppress the warrantless blood draw and video recording, both of which were taken on the night of his arrest, and the trial court denied his motion.

A jury found Kay guilty and sentenced him to 19 years’ confinement in prison. In two issues, Kay (1) challenges the constitutionality of section 724.012 of the Texas Transportation Code, which requires a law enforcement officer to take a blood sample from a suspect arrested for driving while intoxicated when the suspect has refused to submit to the blood draw voluntarily and the officer has reliable information from a credible source that the suspect has two prior convictions for driving while intoxicated, and (2) argues that he was denied effective assistance of counsel. We affirm.

Background

On June 3, 2012, Officer P. McDonald1 of the Orange Police Department stopped Kay for not wearing his seatbelt and for having an expired vehicle registration sticker. While conducting the traffic stop, Officer McDonald smelled alcohol and observed Kay slurring his speech. Officer McDonald conducted field 

sobriety tests, and indicated that Kay was intoxicated, and then placed Kay under arrest and transported him to the Orange County Jail.

At the jail, Kay refused to submit to a blood draw voluntarily. However, when Officer McDonald had earlier placed Kay in custody, dispatch had provided Kay’s criminal history report to Officer McDonald. The report showed that Kay had two prior DWI convictions. Relying on section 724.012(b) of the Transportation Code, Officer McDonald directed a nurse at the jail to perform a warrantless blood draw on Kay. The results indicated that Kay had a blood alcohol concentration of .24 grams of ethanol per 100 milliliters of blood, which was three times the legal limit.

Kay moved to suppress the blood alcohol test’s results because the blood was taken without his consent and without a warrant. At the hearing on Kay’s motion to suppress, Officer McDonald testified that he ordered the blood draw because he had a good faith belief that Kay had two previous DWI convictions. The basis for his belief was Kay’s criminal history report, given to him by dispatch, which indicated Kay had two prior DWI convictions. The trial court denied the motion, explaining: “[B]ased upon the fact that the statute in the state of Texas does allow for the non-warrant blood draw if . . . the defendant has two prior convictions for DWI, which has been admitted and stipulated here, the Court is going to deny the Motion to Suppress as to the blood draw without a warrant.” It later denied Kay’s motion for new trial, which raised the same issue, along with two issues regarding jury instructions.

After Kay filed his notice of appeal, his trial counsel moved to withdraw. The appeal was abated and the trial court held a hearing at which it granted the request to withdraw and appointed new appellate counsel. During the same hearing, the trial court also heard testimony from Kay and his trial counsel regarding Kay’s contention that trial counsel rendered ineffective assistance by failing to convey a plea offer to Kay.

Transportation Code Section 724.012

Citing Missouri v. McNeely, 133 S. Ct. 1552 (2013), Kay contends that section 724.012 of the Texas Transportation Code is unconstitutional because it “impermissibly narrows [Kay’s] Constitutionally guaranteed right to be free from unreasonable searches of his person and seizure of his bodily fluids without a warrant and without any showing of exigent circumstances.”

A. Applicable Law

The taking of a blood specimen is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966). A warrantless search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). One such exception is a search conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973). Likewise, implied consent law “implies a suspect’s consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002).

Section 724.012(b)(3)(B) of the Texas Transportation Code provides implied consent to draw blood without a warrant in limited circumstance. It states: “[a] peace officer shall require the taking of a specimen of the person’s breath or blood . . . if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle . . . and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” if, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person . . . on two or more occasions, has been previously convicted of . . . an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code.” TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B). Driving while intoxicated is an offense under section 49.04 of the Penal Code. See TEX. PENAL CODE ANN. § 49.04. When a person is arrested under the circumstances described in section 724.012(b), that person’s refusal to submit to the taking of the specimen does not suspend the officer’s statutory duty to take it. Id. § 724.013 (West 2011).

B. Analysis

Relying on McNeely, Kay contends that section 724.012 violates the Fourth Amendment. But Kay did not challenge the constitutionality of section 724.012 in the trial court. Rather, Kay’s argument in his motion to suppress and at the hearing on that motion was that (1) the blood draw was warrantless and taken over his refusal to voluntarily provide a blood sample and (2) Kay’s two prior convictions were too remote in time to serve as the two prior convictions required by section 724.012(b). At no point did Kay attack the constitutionality of section 724.012(b).

At the hearing on Kay’s motion to suppress, Kay’s counsel focused on the fact that Kay “did not agree for his blood to be taken,” and that the State had the burden to show there were circumstances present that allowed the State to take a warrantless blood draw.2 Counsel argued that

there may be exceptions where you don’t have to get a warrant under [McNeely]; but the State does have the burden of proof to carry that issue . . . [to show] what circumstances they don’t have to get a warrant, and we have agreed on the record no warrant was issued in this case . . . Kay did not agree for his blood to be taken . . . .

Counsel also argued that Kay’s two prior DWI convictions could not satisfy the statute because they were each more than ten years old. Counsel did not argue that section 724.012, the implied-consent statute, is unconstitutional under McNeely or otherwise.

Kay’s written motion to suppress likewise did not challenge the constitutionality of blood draws taken under the authority of section 724.012(b). Although Kay complained in his motion to suppress that the warrantless taking of his blood violated the United States and Texas Constitutions, he did so only generally:

[E]vidence in this case has been illegally obtained . . . in violation of the United States Constitution, the Texas Constitution, and Texas Statutory Laws . . . [T]he blood specimen was extracted from [Kay] without his permission and without a search warrant. Generally, tak[ing] of a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution . . . Article I, section 9 of the Texas Constitution requires that a search warrant be issued . . . In addition, Article 38.23 of the Texas Code of Criminal Procedure forbids any evidence obtained in violation of the law to be admitted against an accused . . . .
(Emphasis added). (Citations omitted).

Considered in context, we conclude that Kay’s complaint to the trial court was not sufficient to inform the trial court that Kay challenged the constitutionality of section 724.012(b). See Resendez v. State, 306 S.W.3d 308, 314 (Tex. Crim. App. 2009) (holding that “[o]nly when there are clear contextual clues indicating that the party was, in fact, making a particular argument will that argument be preserved”). The record demonstrates that Kay’s motion to suppress, as it was developed at the hearing, was based solely on the fact that the blood was drawn over his objection and without a warrant. Kay’s counsel seemingly ignored section 724.012 at the hearing; thus, even considering context, nothing in the record suggests that Kay alerted the trial court that he sought to challenge the constitutionality of the implied-consent statute authorizing Kay’s blood draw. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that an “objection stating one legal theory may not be used to support a different legal theory on appeal,” even when asserting a constitutional challenge). Accordingly, we hold that Kay’s challenge to the constitutionality of section 724.012(b) was not preserved for our review. See TEX. R. APP. P. 33.1; see also Lyssy v. State, 429 S.W.3d 37, 41 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding that appellant waived his constitutional challenge to section 724.012(b) where “[t]he context of the motion to suppress, as it developed at the hearing, demonstrates that [appellant’s] challenge was based solely on a failure to observe the statute’s terms, not an attack on the constitutionality of what it authorizes.”).

We overrule Kay’s first issue.

Ineffective Assistance of Counsel

In his second issue, Kay contends that his trial counsel rendered ineffective assistance by failing to inform Kay of a plea offer. Kay contends this warrants reversal and reinstatement of the State’s plea offer.

A. Standard of Review and Applicable Law

Both the federal and state constitutions guarantee an accused the right to have the assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2013). The right to counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). Both state and federal claims of ineffective assistance of counsel are evaluated under the two prong analysis of Strickland. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

The first prong requires the appellant to demonstrate that counsel’s performance was deficient, meaning that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The second prong requires the appellant to show that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To establish prejudice, the appellant must prove there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Unless an appellant can prove both prongs, an appellate court must not find counsel’s representation to be ineffective. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). On direct appeal, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The lack of a clear record usually will prevent the appellant from meeting the first prong of Strickland, as the reasonableness of counsel’s choices and actions during trial can be proven deficient only through facts that do not normally appear in the appellate record. Id. In order for an appellate court to find on direct appeal that counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). When the record is silent as to counsel’s reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). An appellate court will not speculate about the reasons underlying defense counsel’s decisions to find counsel ineffective. Id.; Jackson, 877 S.W.2d at 771.

B. Analysis

Kay filed a motion for new trial, but it did not raise an ineffective assistance claim. On appeal, he contends that the State offered a plea bargain of seven years in prison and that his trial counsel failed to communicate that offer to Kay. Kay further contends that his trial counsel failed to intelligently assess and communicate the offer because counsel misunderstood the law. Specifically, Kay argues that his trial counsel erroneously believed that the State was prohibited from using Kay’s two prior DWI convictions as predicates for a felony DWI charge because they were more than ten years old.

We abated this appeal and ordered the trial court to hold a hearing on Kay’s trial counsel’s motion to withdraw. On the same day that the trial court held a hearing on and granted the motion to withdraw, it heard testimony from Kay to the effect that no plea offer was communicated to him but that he had since been informed that there may have been a plea offer at some point.There is a supplemental reporter’s record of a “hearing to present additional evidence,” which the trial court held after Kay was appointed new appellate counsel.)

The trial court did not have authority to hold an evidentiary hearing regarding Kay’s ineffective assistance claim because our order of abatement did not provide for such a hearing. See TEX. R. APP. P. 25.2(g) (“Once the record has been filed in the appellate court, all further proceedings in the trial court—except as provided otherwise by law or by these rules—will be suspended until the trial court receives the appellate-court mandate.”). Even when an appeal is abated, “[a] trial court is not authorized to conduct an evidentiary hearing to develop a record of new testimony and other evidence that was not presented at trial, or developed on motion for new trial.” Lewis v. State, 711 S.W.2d 41, 43–44 (Tex. Crim. App. 1986) (emphasis in original) (holding that trial court “exceeded her authority under the mandate of abatement” by holding evidentiary hearing to develop evidence on ineffective assistance claim because appellant failed to present such evidence at trial or in motion for new trial). Accordingly, we do not consider the testimony from the evidentiary hearing that was held while the case was abated. Disregarding the evidence adduced at that hearing, the record does not affirmatively show that any plea offer actually was extended by the State or that Kay’s trial counsel failed to convey an offer to him. See Lopez, 343 S.W.3d at 142 (stating that the record must affirmatively demonstrate the alleged ineffectiveness to find ineffective counsel). Thus, we cannot conclude that Kay has established that his trial counsel’s representation fell below an objective standard of

reasonableness. See Jenkins v. State, No. 01-03-00185-CR, 2004 WL 1233996, at *7 (Tex. App.—Houston [1st Dist.] June 3, 2004, no pet.) (mem. op., not designated for publication) (holding appellant failed to show his counsel’s performance was deficient because there was no record that appellant’s counsel failed to inform him of plea offer or that State ever proposed plea bargain). Accordingly, we hold that Kay failed to meet the first prong of Strickland.

We overrule Kay’s second issue.

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Do Not Publish. TEX. R. APP. P. 47.2(b).

The text of this decision is from the appellate court's website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Bennett Keith O'Bannon v. State of Texas, 14-12-00653-CR

The DNA testing fee charged as court costs is not found to be unconstitutional.  Although 65 percent of the fee goes to a general criminal justice planning account, grants are available, from said account, to law enforcement for the implementation of a DNA collection requirement.  Additionally, although the remaining portion goes to the state highway fund, "one of the functions performed by DPS is establishment and maintenance of 'a computerized database that serves as the central depository in the state for DNA records.'"
If a motion for new trial is based on facts outside of the record, it must be supported by an affidavit.

Decision:

Affirmed as Modified and Opinion on Remand filed June 10, 2014.

In The Fourteenth Court of Appeals

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NO. 14-12-00653-CR

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BENNETT KEITH O’BANNON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1310491

OPINION ON REMAND

Appellant Bennett Keith O’Bannon appeals his conviction for indecency with a child. On original submission, appellant argued (1) the trial court reversibly erred in allowing the State to present testimony from two outcry witnesses regarding the same alleged conduct; (2) the judgment is invalid because it contained sheriff’s fees that are not supported by the record; (3) the assessed DNA court costs are unconstitutional as a matter of law; and (4) the trial court erred in not granting a hearing on appellant’s motion for new trial or motion in arrest of judgment. In a single cross-issue, the State asked the court to modify the judgment to correct the amount of jail time credited to appellant’s sentence. We modified the trial court’s judgment to delete the specific amount of costs assessed and reflect jail time credited from July 8, 2011, through July 11, 2012. O’Bannon v. State, No. 14-12-00653-CR; 2013 WL 4806994 (Tex. App.—Houston [14th Dist.] Sept. 10, 2013), vacated and remanded, No. PD-1346-13; 2014 WL 1512960 (Tex. Crim. App. Apr. 16, 2014). The Court of Criminal Appeals vacated our judgment and remanded in light of its opinion in Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014).

Sheriff’s Fees

In his second issue appellant argues the judgment is invalid because it contains fees from the sheriff that are erroneous and unsupported. On April 28, 2014, this court received a supplemental clerk’s record containing a certified bill of costs listing, among other costs, $110 for “Summoning Witness/Mileage.” The record reflects that 11 witnesses were summoned. Article 102.011(a)(3) of the Texas Code of Criminal Procedure requires that a defendant pay $5 for each witness summoned. Both parties agree, and the record supports, that 11 witnesses were summoned at three different times.

Appellant argues, “Either the cost is $55 or $165. The Sheriff’s fee of $110 is wholly unsupported by any documentation.” We disagree. Although the sheriff’s fee could have been as much as $165, the record reflects that 11 witnesses were summoned at least twice, which supports the cost of $110. Because the cost of $110 for summoning witnesses is supported by the record, we overrule appellant’s second issue.

DNA Testing Fee

In his third issue appellant contends the judgment is invalid because the assessed DNA Testing Fee is unconstitutional as a matter of law. The certified bill of costs in the supplemental clerk’s record lists, among other costs, $250 for a “DNA Testing Fee.” This fee is authorized by article 102.020 of the Texas Code of Criminal Procedure, entitled, “Costs Related to DNA Testing.” As pertinent here, article 102.020 provides:

(a) A person shall pay as a cost of court:

(1) $250 on conviction of an offense listed in Section 411.1471(a)(1), Government Code;

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(h) Except as provided by Subsection (h-1), the comptroller shall deposit 35 percent of the funds received under this article in the state treasury to the credit of the state highway fund and 65 percent of the funds received under this article to the credit of the criminal justice planning account in the general revenue fund.

Tex. Code Crim. Proc. art. 102.020.

Appellant argues that article 102.020(h) is facially unconstitutional under the separation of powers clause of the Texas Constitution, which provides:

DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Tex. Const. art. II, § 1.

According to appellant, the uses specified in article 102.020(h) for the DNA Testing Fee collected under article 102.020(a)(1) are not properly characterized as costs of court; therefore, appellant contends that article 102.020(h) impermissibly requires the judicial branch to perform an executive function by collecting a tax.

Appellant argues that while the DNA fee might be considered a necessary expense for DNA testing, the fee neither goes toward DNA testing or for the functions of the courts. Instead, 35 percent of the fee goes to the state highway fund, and 65 percent to the criminal justice planning account in the general revenue fund. Appellant thus contends that the statute impermissibly compels courts to collect a tax in violation of separation of powers principles.

In addressing a constitutional challenge, this court “must begin with the presumption that the statute is valid and that the Legislature did not act arbitrarily or unreasonably in enacting it.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). The party challenging the statute “has the burden to establish its unconstitutionality.” Id. “[T]o prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances.” Id.

Appellant principally relies on Ex parte Carson, 143 Tex. Crim. 498, 159 S.W.2d 126, 127 (1942), to meet this burden. Carson invalidated a statute requiring the collection of $1 in costs in civil and criminal cases in certain counties to fund law libraries in those counties. Id. The Court of Criminal Appeals invalidated the statute because (1) the $1 cost was “neither necessary nor incidental to the trial of a criminal case [and thus was] not a legitimate item to be so taxed” against a criminal defendant; (2) the statute was a local or special law, which the state legislature was not authorized to enact; and (3) collection of this cost only from defendants in certain counties was discriminatory. Id. at 127, 129–30. Noting the conflicting decisions on the issue of what can be considered a proper cost in the trial of a case, the court noted:

On one side the courts take the view that the costs may be taxed as a proper item because the money is used in the establishment and maintenance of a law library which, it is stated, is a legitimate charge on the litigants. We find ourselves unable to accept that view. Such reasoning would lead into fields of expenditures which may as well include the cost of the court houses, the automobiles which officers use to apprehend criminals and even the roads upon which they ride. If something so remote as a law library may be properly charged to the litigant on the theory that it better prepares the courts and the attorneys for the performance of their duties, it occurs to us that we might as logically tax an item of cost for the education of such attorneys and judges and even the endowments of the schools which they attend. Many other illustrations might be used appropriately to show the fallacy of such contention and the inevitable result that litigation in the courts would be prohibitive. We, therefore, conclude, as several states have, that the tax imposed by the bill is not and cannot be logically considered a proper item of cost in litigation, particularly in criminal cases.

Id. at 127.

Earlier this year, a divided panel of this court upheld “consolidated court costs” (Tex. Loc. Gov’t Code § 133.102.) in the face of a similar constitutional challenge. See Salinas v. State, 426 S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet. filed). In Salinas, appellant also relied on the holding in Carson to support his assertion that the separation of powers doctrine prohibited assessment of court costs that were not necessary or incidental to the trial of a criminal case. Id. at 326. We agree with the majority’s assertion that “[t]here is room to discuss whether Carson can bear the weight appellant would have it carry. Carson’s passing discussion of whether the $1 fee constitutes a ‘tax’ [the entirety of which is quoted above] is both abbreviated and bereft of citations to supporting authority.” Id.

Assuming arguendo that Carson requires a statute imposing court costs to be “necessary or incidental to the trial of a criminal case,” (Carson, 159 S.W.2d at 130.) appellant’s facial constitutional challenge to section 102.020(h) fails.

In this case, as in Salinas, appellant has failed to satisfy his burden to show that the statute is invalid in all possible applications because he has not established how the funds will be used once they are distributed to the state highway fund and the criminal justice planning account. Appellant draws inferences from the fact that the criminal justice planning account is established by the governor’s office, and that the funds flow “directly to the executive branch and [are] used for policy purposes.” With regard to the portion of the cost that is directed to the state highway fund, appellant infers from the title of the fund that the funds collected will not be used for purposes necessary or incidental to DNA collection or testing.

A review of the statutes related to DNA collection and costs reveals that the funds collected as a DNA Testing Fee are sufficiently related to the collection and testing of DNA in criminal cases. Article 102.020 requires assessment of a DNA Testing Fee of “$250 on conviction of an offense listed in Section 411.1471(a)(1) of the Government Code.” Tex. Code Crim. Proc. art. 102.020. Section 411.1471, entitled “DNA Records of Persons Charged with or Convicted of Certain Felonies” requires a defendant to “provide to a law enforcement agency one or more specimens for the purpose of creating a DNA record.” Tex. Gov’t Code § 411.1471(b). It also requires law enforcement agencies to preserve the specimen and maintain a record of the collection of the specimen. Id. § 411.1471(d). Article 102.056(e) of the Code of Criminal Procedure, titled “Distribution of Funds,” permits grants from the criminal justice planning account to the Department of Public Safety “for expenses incurred in performing duties imposed . . . under Section 411.1471.” Therefore, we cannot say that the 65 percent of the DNA Testing Fee that is distributed to the criminal justice planning account is so unrelated to the collection and maintenance of DNA records that it could be considered a “tax” under Carson.

With regard to the remaining 35 percent directed toward the state highway fund, those funds are to be used, among other uses, “by the Department of Public Safety to police the state highway system and to administer state laws relating to traffic and safety on public roads.” Tex. Transp. Code § 222.001(a)(3). One of the functions performed by DPS is establishment and maintenance of “a computerized database that serves as the central depository in the state for DNA records.” Tex. Gov’t Code § 411.142(a). Therefore, these inter-connected provisions permit the DNA Testing Fee to be redistributed through the state highway fund to the Department of Public Safety for legitimate criminal justice purposes.

Because appellant has failed to satisfy his burden to show that the statute is invalid in all possible applications, we overrule appellant’s third issue.

Hearing on Motion for New Trial

In his fourth issue appellant argues the trial court erred in not granting a hearing on the motion for new trial or the motion in arrest of judgment.

Appellant filed a motion for new trial in which he argued the sheriff’s fee discrepancy and the constitutionality of the DNA Testing Fee. Attached to the motion was (1) the court’s judgment; (2) a computer printout of the costs assessed; (3) the order to the sheriff’s office to prepare and provide a copy of the sheriff’s fee record; (4) the sheriff’s fee record; (5) an order to include a bill of costs in the appellate record; and (6) copies of the subpoenas issued. Appellant also filed a motion in arrest of judgment in which he made identical arguments and attached identical documents as those made and attached to the motion for new trial.

Appellant properly presented the motions and requested a hearing. Neither motion contains an affidavit stating which matters are not determinable from the record. The trial court denied appellant’s request for a hearing.

While not required by statute, if a motion for new trial alleges facts outside the record, it must be supported by an affidavit. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983); Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.); see Tex. R. App. P. 21.2. A motion for new trial alleging facts outside the record unsupported by affidavit is fatally defective, and the trial court does not err in refusing to entertain such motion. Bearden, 648 S.W.2d at 690; Flores, 18 S.W.3d at 798.

We conclude that the trial court did not abuse its discretion in not granting appellant a hearing and overrule appellant’s fourth issue.

The court’s opinion in Johnson did not affect this court’s original disposition of appellant’s first issue and the State’s cross-point. For that reason, we adhere to our original disposition in parts I and IV of our previous opinion. See O’Bannon v. State, No. 14-12-00653-CR; 2013 WL 4806994 at *1, *4.

We modify the trial court’s judgment to reflect jail time credited from July 8, 2011, through July 11, 2012. We affirm the judgment as modified.

Marc W. Brown

Justice

Panel consists of Justices Christopher, McCally, and Brown.

Publish — TEX. R. APP. P. 47.2(b).

The text of this decision is from the appellate court's website, copied on the date of posting.  I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.