PD-0725-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS August 4, 2015 Transmitted 8/3/2015 10:44:36 PM Accepted 8/4/2015 7:50:29 AM In the ABEL ACOSTA CLERK Court of Criminal Appeals of Texas !

Jose L. Aldana, appellant v. No. PD-0725-15 The State of Texas, appellee ! ! !

Reply to the State’s Petition for Discretionary Review !

To the Honorable Court of Criminal Appeals of Texas: Jose L. Aldana, Appellant below, files this response to the State’s Peti- tion for Discretionary Review in this cause and shows as follows:

Introduction The jury acquitted Aldana of two counts and convicted him of three.1 In addition to being sentenced to prison, Aldana was assessed a $3,000 fine on each count of conviction.2 On appeal, he challenged the inclu- sion of the $3,000 fine in each judgment. The El Paso Court of Appeals

1 CR at 172–88.

2 CR at 174, 179, 184.

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Reply to the State’s Petition for Discretionary Review Page 1 of 12 reformed two judgments by deleting the fine on each.3 The State is now seeking review by this Court of that decision. Aldana doesn’t think re- view is warranted for the following reasons.

First, there’s no disagreement on this issue between the courts of appeals. The only two appellate courts to consider this issue have agreed. Second, the State’s concerns actually hinge on TDCJ’s not fol- lowing the trial court’s direction. Third, court costs are included in only one judgment to avoid duplication in cases with multiple convic- tions; including fines only on one judgment is consistent with the han- dling of court costs. Fourth, objecting prospectively or to something unseen is impractical.

In sum, this petition should be refused.

There is no disagreement between the courts of appeals. The only two courts of appeals to consider this issue agree.

One factor in whether this Court grants review is whether there is a conflict between courts of appeals on the issue.4 There is no conflict on

3Aldana v. State, Slip Op. at 3–4; 2015 WL 2344023 at *2 (Tex. App.—El Paso 2015, pet. filed).

4Tex. R. App. P. 66.3(a) (“[W]hether a court of appeals’ decision conflicts with another court of appeals' decision on the same issue[.]”).

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Reply to the State’s Petition for Discretionary Review Page 2 of 12 this issue here. Both the El Paso and Amarillo Courts of Appeals have considered this issue and agreed.

In this case, the El Paso Court of Appeals found that the inclusion of the fine in each judgment would likely lead to cumulation of the fines. Each judgment included the $3,000 fine. An Order to Withdraw Funds was included with and incorporated by reference into each judgment. Each one of these directed the withdrawal of the $3,000 as- sessed in the judgment. This was dispositive: “The order to withdraw funds in Counts Four and Five, however, are expressly incorporated into the judgments of conviction and became part of it.”5 In Habib v. State,6 the Amarillo Court of Appeals was similarly per- suaded by the inclusion of fines in both bills of costs. There, the defen- dant, in addition to a sentence of imprisonment, was fined $5,000 on both cases.7 The trial court ordered these sentences to run concurrent- ly.8 But the Bill of Costs for each case included the fine.9 In deleting the fine from one of the cases the court of appeals noted that there should 5Aldana v. State, Slip Op. at 3–4; 2015 WL 2344023 at *2 (Tex. App.—El Paso 2015, pet. filed).

6 431 S.W.3d 737 (Tex. App.—Amarillo 2014, no pet.)

7 431 S.W.3d at 742.

8 Id. Id.

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Reply to the State’s Petition for Discretionary Review Page 3 of 12 be only one, cumulated fine: “When sentences are ordered to run con- currently, the judgment should not reflect a cumulated fine.”10 In both cases, the defendant was going to pay the fine more than once notwithstanding the concurrency of the sentences. In this case, there were Orders to Withdraw Funds incorporated into the judg- ments; in Habib, the fines were included in both Bills of Costs. Both situations were going to cause the duplicate collection of the fines from the defendant. Therefore, the courts of appeals made revisions to re- flect and insure that only one fine should and would be collected.

The State’s concerns hinge on TDCJ’s not following the trial court’s di- rectives.

The State’s PDR makes much of TDCJ’s ability to do what it’s suppose to do. Because TDCJ will do what it ought, according to the State, Al- dana’s concerns are for not, and the El Paso Court of Appeals acted precipitously. TDCJ’s doing what it is directed to do is, however, pre- cisely why these judgments needed reformation.

10Id. (Wilson v. State, No. 07-11-00019-CR, 2012 WL 205848, at *1, 2012 Tex.App. LEXIS 525, at *2 (Tex. App.—Amarillo Jan. 24, 2012, no pet.) (per curi- am) (mem. op., not designated for publication) (citing State v. Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008)).

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Reply to the State’s Petition for Discretionary Review Page 4 of 12 The State contends that the El Paso Court of Appeals’ opinion hinges on “an assumption that mere functionaries in the prison system are unable to understand the law and will charge Appellant $9,000 in- stead of the $3,000 he actually owes.”11 The State continued: This is thin gruel indeed on which to base a decision that these judgments need fixing. There is no reason to presume in- competence on the part of the Institutional Division of the De- partment of Criminal Justice, and there is no reason to think that the concept of a “concurrent fine” is beyond the ken of those who work in the Classification and Records Department. …12 !

The problem, though, with this rhetoric is that the State is right: TDCJ will do what it’s directed. As noted above, this case and Habib both contained directives to withdraw all the fines. In this case, there were Orders to Withdraw Funds incorporated into each judgment.13 In Habib, the fine was included in the Bill of Costs for each case. For the State’s argument to be valid, TDCJ would have to cipher out for itself that the trial courts had made errors in these documents, ignore those directives, and then implement what it had concluded was correct in

11 State’s PDR at 10.

12 Id. CR at 177, 182, 187.

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Reply to the State’s Petition for Discretionary Review Page 5 of 12 lieu of what the trial court sent. This would be TDCJ doing the com- plained of “fit of semi-nunc pro tunc jiu jitsu.”14 In sum, the reformations in this case and Habib were necessary be- cause TDCJ would follow the dictates contained in the documents from the trial courts. The State’s argument for granting review is mis- placed.

There’s a reason court costs are included in only one bill of costs in cases with multiple convictions: to prevent their duplicative collection.

In this case, court costs are included in only one case. The State recog- nizes this: “All three withdrawal orders reflect a fine of $3,000. One of them includes court costs.”15 In Habib, the court of appeals revised the judgment in one case to delete the duplicative assessment of costs.16 While court costs are “a nonpunitive recoupment of the costs of judi- cial resources expended in connection with the trial of the case[,]”17 the concern leading to their deletion in Habib is the same as the El Paso Court of Appeals’ here: to avoid duplication of collection.18 To extend State’s PDR at 9.

15 State’s PDR at 9.

16 Habib, 431 S.W.3d at 743–44.

17 Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) Habib, 431 S.W.3d at 744.

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Reply to the State’s Petition for Discretionary Review Page 6 of 12 the State’s logic to court costs, it would be perfectly permissible—if not proper—to include court costs on all judgments. Yet that’s not what is done.

Objecting to prospective error is impractical. How does a defendant object to something he’s never seen and hasn’t happened yet?

The State believes that Aldana should have objected to the errors in the judgments that were remedied by the court of appeals in this case to have preserved this error: “Appellant’s failure to object should result in a forfeiture of his claim.”19 This is problematic for several reasons.

How does a defendant object to something he’s never seen? Absent some after-the-fact effort on his part, a criminal defendant doesn’t get a copy of his judgment. The defendant doesn’t even get notice that the trial court has signed it. Unlike civil proceedings, there’s simply no re- quirement to give the defendant or the defendant’s attorney notice of the judgment much less a copy of it.20 But the civil litigant gets that

19 State’s PDR at 7.

20 Contra Tex. R. Civ. P. 306a(3) provides as follows: “When the final judgment or other appealable order is signed, the clerk of the court shall immediately give no- tice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as pro- vided in paragraph (4).”

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Reply to the State’s Petition for Discretionary Review Page 7 of 12 benefit and more: untimely notice or delivery of the judgment extends the post-judgment deadlines.21 In essence, the State wants the defen- dant to object to something that’s never been seen and isn’t provided.

And what does the defendant say? Should Aldana’s counsel have said, “Judge, we object to the court’s prospectively possibly erring in the completion of the judgments in this case?” That would fail because it’s not a specific objection to specific error. It’s also not timely—it’s not contemporaneous with the error. Or should he have foretold the court’s inclusion and incorporation of Orders to Withdraw Funds? “Judge, if you’re going to include the fines in each judgment and if you’re con- templating Orders to Withdraw Funds or Bills of Costs that will be in- corporated into the judgment, please be sure to omit them from all but one case.” Or does he ask the trial court to complete the judgments correctly? “Judge, we know you’d never make an error, but please be extra careful in this case and make sure the judgments match the oral

21 Tex. R. Civ. P. 306a(4) (“1. No Notice of Judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, which- ever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.”).

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Reply to the State’s Petition for Discretionary Review Page 8 of 12 pronouncement of sentence, which, after all, controls.” These are all folly.

Further, the State’s contention that Aldana should have objected based on his hearing the trial court’s oral pronouncement of judgment is flawed: The State argues thusly: “Had Appellant felt an impending ambiguity that he now claims is obvious, he should have objected at the time.”22 This is problematic because the oral pronouncement of judgment is just that; it’s not the judgment. And there was nothing wrong with the oral pronouncement in this case.23 And why should the defendant presume that the trial court will err?

That’s the implication here: that the defendant has to prospectively in- sure that the trial court will perform it’s ministerial duties correctly.

Can’t we presume that the trial court will discharge its ministerial du- ties properly?

22 State’s PDR at 8.

23Since the oral pronouncement controls, Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004), why would the defendant object to a correct one?

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Reply to the State’s Petition for Discretionary Review Page 9 of 12 This was not an improper incursion into the civil arena. The court of appeals modified the judgments in this case.

The State suggests that the court of appeals decision has nothing to do with the appeal of Aldana’s conviction. The State suggests that court of appeals action was improper because it had “nothing to do with the appeal of his conviction.”24 The State wants this Court to find that the El Paso Court of Appeals ventured into forbidden Harrell territory.25 But neither the El Paso Court of Appeals in this case nor the Amarillo Court of Appeals in Habib did. In this case, the judgments were modi- fied. (Indeed, this case is distinguishable from Harrell. As noted in the opinion, these orders to withdraw funds were issued with and incorpo- rated into the judgments in this case. The order at issue in Harrell was issued years after the conviction.26) In Habib, the Amarillo Court of Appeals modified the bills of costs.27 These are perfectly appropriate actions for courts of appeals.

24 State’s PDR at 11.

25Harrell v. State, 286 S.W.3d 315, 318 (Tex. 2009) (“Harrell is not contesting the convicting court’s authority to assess costs but its authority to collect costs.” (em- phasis in original)).

26Compare Harrell, 286 S.W.3d at 317, with Aldana, Slip Op. at 3–4; 2015 WL 2344023 at *2.

27 Habib, 431 S.W.3d at 744.

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Reply to the State’s Petition for Discretionary Review Page 10 of 12 Conclusion This petition should be refused.

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Respectfully submitted, ! ! s/ Leigh W. Davis________ (Mr.) Leigh W. Davis 1901 Central Dr. Suite 708 LB 57 Bedford, TX 76021 817.868.9500 817.887.2401 (fax) State Bar No. 24029505 !

Certificate of Service !

On August 3, 2015, one copy of this motion has been electronically sent to counsel for Appellant, Mr. James Gibson, Tarrant County Criminal District Attorney’s office, 401 W. Belknap Street, Fort Worth, Texas 76196-0201, [email protected]. A copy has been printed and mailed to Jose L. Aldana.

! s/ Leigh W. Davis____________ (Mr.) Leigh W. Davis ! ! !

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Reply to the State’s Petition for Discretionary Review Page 11 of 12 Certificate of Compliance !

This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This doc- ument also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 2,291 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1). ! /s/ Leigh W. Davis___________ (Mr.) Leigh W. Davis !

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