PD-1314-15 PD-1314-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/5/2015 12:16:36 PM Accepted 10/7/2015 2:23:12 PM ABEL ACOSTA NO._________________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
TERRELL LADEL DAVIS Petitioner
v.
THE STATE OF TEXAS Respondent
Petition is in Cause No. 1308456D from the 371st Criminal District Court of Tarrant County, Texas, and Cause No. 02-15-00163-CR in the Court of Appeals for the Second District of Texas
PETITION FOR DISCRETIONARY REVIEW
Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com October 7, 2015 Attorney for Petitioner Terrell Ladel Davis IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel.
Trial Judge: The Hon. Mollee Westfall, Judge, 371st Criminal District Court, Tarrant Co.
Petitioner: Terrell Ladel Davis
Petitioner’s Trial Counsel: Shane Lewis TBN: 24046072 Attorney at Law 1319 Ballinger Fort Worth, Texas 76102
Petitioner’s Counsel Abe Factor on Appeal: TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Timothy Rogers TBN: 24046741 District Attorney’s Office 401 W. Belknap Street Fort Worth, Texas 76196
Appellee’s Counsel Debra Windsor on Appeal: TBN: 00788692 John Meskunas TBN: 24055967 District Attorney’s Office 401 W. Belknap Street Fort Worth, Texas 76196
ii TABLE OF CONTENTS page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The Court of Appeals erred when it held that Petitioner failed to preserve his facial attack on the constitutionality of the statute challenged on appeal. . . . . . . . . . . . . . . . . . . . . . . . 3
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
D. Landers v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iii INDEX OF AUTHORITIES
Cases page
Davis v. State, 02–15–00163–CR, 2015 WL 5770516 (Tex. App.– Fort Worth, Oct. 1, 2015, no. pet. h.) (mem. op., not designated for publication). . . . 2, 4
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . 2, 4, 5
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . 4
Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . 2, 6, 7
Lopez v. State, 253 S.W.3d 680 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . 4
Mayer v. State, 309, S.W.3d 552 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . 5, 6
Statutes
T EX. C RIM. P ROC. C ODE A NN. § 26.05(g) (West Supp. 2014). . . . . . . . . . 5
T EX. G OV’T C ODE A NN. § 501.014 (West 2012). . . . . . . . . . . . . . . . . . . . . 3
T EX. P ENAL C ODE A NN. § 30.02( c)(2) (West 2011). . . . . . . . . . . . . . . . . .1
Court Rules
T EX. R. A PP. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
T EX. R. A PP. P. 66.3( c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
On May 1, 2013, pursuant to a plea bargain agreement, Terrell
Ladel Davis (“Mr. Davis” or “Petitioner”) was placed on four (4) years
deferred adjudication community supervision for the second-degree
felony offense of burglary of a habitation. (C.R. 21); see T EX. P ENAL
C ODE A NN. § 30.02( c)(2) (West 2011).
On March 16, 2015, the State filed it First Petition to Proceed to
Adjudication, in which it alleged in two paragraphs that Mr. Davis had:
1) failed to participate in drug treatment as ordered; and, 2) used
marijuana and cocaine, each in violation of the terms of his community
supervision. (C.R. 33). At the hearing held on April 16, 2015, Mr. Davis
pled “true” to refusing to participate in treatment, and “not true” to the
drug use allegations. (II R.R. 7-8). The trial court found both the
allegations true, adjudicated Mr. Davis guilty, and sentenced him to ten
(10) years incarceration in TDCJ-CID. (C.R. 44; II R.R. 52). A Timely
Notice of Appeal was filed on April 16, 2015. (C.R. 50).
1 STATEMENT OF PROCEDURAL HISTORY
The Opinion by the Second Court of Appeals issued it Opinion
modifying and affirming Mr. Davis’ judgment and conviction as
modified was handed down on October 1, 2015. See Davis v. State,
02–15–00163–CR, 2015 WL 5770516 (Tex. App.–Fort Worth, Oct. 1, 2015,
no. pet. h.) (mem. op., not designated for publication). This Petition for
Discretionary review is therefore timely.
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when it held that Petitioner failed to preserve his facial attack on the constitutionality of the statute challenged on appeal.
REASONS FOR REVIEW
1. The decision by the Second Court of Appeals has decided an important question of state law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals; specifically Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013), and Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014). See also T EX. R. A PP. P. 66.3( c).
2 ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when it held that Petitioner failed to preserve his facial attack on the constitutionality of the statute challenged on appeal.
A. Facts
After a revocation hearing, Mr. Davis was found guilty of
burglary of a habitation. (II R.R. 52). The trial court sentenced Mr. Davis
to a term of ten (10) years incarceration in the Institutional Division of
the Texas Department of Criminal Justice. (II R.R. 52). Assessed as court
cost against Mr. Davis were “Reparations” in the amount of $159.80, of
which $26.80 of that amount is characterized as “fines.” $250. (C.R. 43,
48). Also assessed as a court cost against Mr. Davis was a
“Consolidated Court Cost” in the amount of $133. (C.R. 44, 48).
Incorporated into the Judgment was an “Order to Withdraw Funds”
relating to his inmate trust fund directing that $468.80 be taken
pursuant to the statutory scheme for the State of Texas to withdraw
funds from his inmate trust fund. (C.R. 47). See T EX. G OV’T C ODE A NN.
§ 501.014 (West 2012). Mr. Davis did not object in the trial court to the
assessment of costs or challenge the statute purporting to authorize the
assessment of those costs.
3 B. Opinion Below
Pertinent to the matters raised in this Petition, the court of
appeals held that since he did not raise it in the trial court, Mr. Davis
had forfeited his complaint that section 133.102(a)(1) of the Texas Local
Government Code was facially unconstitutional. See Davis, 2015 WL
5770516 at *4 (citing Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App.
2009). Though the court of appeals mentioned this Court’s opinion in
Johnson, it held that under the circumstances, Mr. Davis’ still could not
raise his facial unconstitutionality challenge for the first time on appeal.
See Davis, 2015 WL 5770516 at *4 (citing Johnson, 423 S.W.3d at 385).
C. Preservation of Error
Rule 33.1 of the Texas Rules of Appellate Procedure generally
requires that a complaint on appeal be presented first to the trial court
below or it is waived on review.1 See T EX. R. A PP. P. 33.1. However, this
Court has recently determined that a complaint on appeal regarding
the imposition of court costs upon the revocation of community
1 To preserve a complaint for appellate review, a party, at trial, must present and obtain a ruling on the complaint that states “the grounds for the ruling that [it] sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1 (a); see Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008).
4 supervision can be raised for the first time on appeal. See Johnson, 423
S.W.3d at. This Court pointed out that while a defendant will be
sentenced in open court, the written judgment is prepared at a later
date. Id. (citation omitted). Therefore, most defendants would not even
be aware of the amount of any costs or fees assessed as they are most
often not assessed in open court, nor is an itemized bill presented with
which to determine the accuracy of the assessed fees or costs. Id.
The Johnson court supported its decision by citing to this Court’s
opinion in Mayer v. State, 309, S.W.3d 552 (Tex. Crim. App. 2010). In
Mayer, the appellant challenged the imposition of attorney’s fees when
his probation was revoked. Specifically, he claimed that there was no
basis in the record to support the trial court’s determination that the
appellant had financial resources and, as a result, the ability to pay at
least a portion of the cost of his defense. Mayer, 309 S.W.3d at 552; see
also T EX. C RIM. P ROC. C ODE A NN. § 26.05(g) (West Supp. 2014)
(requiring a judicial determination of whether a defendant has the
financial resources to offset in whole, or part, the costs of the legal
services provided to the defendant). The court held that since Mayer’s
complaint on appeal argued that there was insufficient evidence that
5 he had the financial resources and ability to pay the assessed attorney
fees and that insufficient evidence points of error may be raised for the
first time on appeal, Mayer’s complaint was not waived by his failure
to object in the trial court. See Mayer, 309 S.W.3d at 556.
D. Landers v. State
This case is similar to Landers v. State where this Court
explained that challenging the court cost for an attorney pro tem could
be raised for the first time on appeal, holding:
Since the fees were not imposed in open court and she was not required to file a motion for new trial, she has not forfeited the complaint on appeal.
Landers, 402 S.W.3d at 255. In Landers, the cost bill was available six
days after the judgment and this Court explained:
No notice of this document was given to the appellant or her attorney and no further proceedings were held. Consequently, the appellant was not given an opportunity to object to the imposition of these costs. Since she was not given the opportunity, the absence of an objection is not fatal to her appeal.
Landers, 402 S.W.3d at 255. This Court went on to declare that Landers
was not required to object in a motion for new trial because there was
no notice the cost bill had ever been created and it would “allow a
judge to de facto alter the statutory time frame for motions for new
6 trial.” Landers, 402 S.W.3d at 255.
Because the Second Court of Appeals failed to properly address
every issue raised, this Court should exercise its power of supervision
and correct that failure.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Court grant discretionary review and allow each party
to fully brief and argue the issues before the Court of Criminal
Appeals, and that upon reviewing the judgment entered below, that
this Court vacate the opinion of the Second Court of Appeals and
remand for full consideration of Petitioner’s complaints on appeal.
Respectfully submitted,
/s/Abe Factor Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorney for Petitioner Terrell Ladel Davis
7 CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 1,968. /s/Abe Factor Abe Factor
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant County District Attorney by a manner compliant with the Texas Rules of Appellate Procedure, on this 5th day of October , 2015.
/s/Abe Factor Abe Factor
8 APPENDIX
1. Opinion of the Second Court of Appeals, October 1, 2015
9 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-15-00163-CR
TERRELL LADEL DAVIS APPELLANT
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1308456D
MEMORANDUM OPINION 1
Appellant Terrell Ladel Davis appeals from his conviction for burglary of a
habitation. 2 In two points, he contends that the trial court erred by including an
unauthorized fine in its judgment and that part of the court costs contained in the
1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 30.02(a) (West 2011). judgment are illegal because the statute authorizing them is unconstitutional. We
modify the trial court’s judgment and affirm it as modified.
Background Facts
A grand jury indicted appellant for burglary of a habitation; the indictment
alleged that he had entered the habitation while intending to commit theft.
Appellant received appointed counsel, waived several constitutional and statutory
rights, judicially confessed to the offense, and pled guilty. In accordance with a
plea bargain agreement, the trial court deferred adjudication of appellant’s guilt
and placed him on community supervision for four years. The deferred
adjudication order recited a fine of “$400 Not Suspended” and required appellant
to pay court costs. A separate document included payment of the $400 fine and
$284 in court costs as part of appellant’s conditions of community supervision.
Less than two years later, the State filed a petition for the trial court to
adjudicate appellant’s guilt. The State alleged that he had violated his
community supervision conditions by not participating in a substance abuse
treatment program and by using illegal drugs on several occasions.
The trial court held a hearing on the State’s petition. Appellant pled true to
not participating in the substance abuse treatment program and not true to using
illegal drugs. After receiving evidence from four witnesses (including appellant),
the trial court found that both allegations were true. The court found appellant
guilty and sentenced him to ten years’ confinement. On the record at the
hearing, the trial court did not impose a fine. Appellant brought this appeal.
2 Validity of Fine
In his first point, appellant contends that the judgment adjudicating his guilt
includes a fine that was not pronounced orally and that must therefore be
deleted. In response, the State argues only that the judgment adjudicating guilt
does not contain a fine.
The trial court’s “Judgment Adjudicating Guilt” reflects appellant’s
conviction and sentence and shows on its face that he owes $309 in court costs.
Although the judgment does not expressly include a fine, 3 it incorporates an
attached “Order to Withdraw Funds.” 4 That order states that appellant has been
assessed “[c]ourt costs, fees[,] and/or fines” in the amount of $468.80. The order
requires payment of that amount out of appellant’s inmate trust account. The
difference between the total amount owed, $468.80, and the court costs owed,
$309 (as stated in the judgment), is $159.80. The clerk’s record contains a
document that designates $159.80 as the “[t]otal of all [r]eparations [o]wed.”
That document establishes that the $159.80 sum comprises $13 due to the
community supervision and corrections department, $120 of probation fees, and
$26.80 in “fines.” Another document in the record, which appears to have been
generated by the district clerk, establishes that appellant paid $373.20 of his
3 In the place of the judgment where a fine could be expressly included, the judgment says “N/A.” 4 The judgment states, “Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part thereof.”
3 original $400 fine (which the deferred adjudication order recited) and therefore
had $26.80 in “[f]ines [r]emaining.”
We conclude that when considered collectively, these documents establish
that by incorporating into the judgment the Order to Withdraw Funds, which
requires appellant to pay $468.80 out of his trust account, the trial court
necessarily included the remaining, unpaid fine of $26.80—part of the
“[r]eparations” of $159.80—in the judgment. Thus, we cannot agree with the
State that the “judgment adjudicating guilt does not contain a fine.”
Appellant contends that the $26.80 fine must be deleted because although
that amount was included as part of the larger $400 fine in the order deferring
adjudication of his guilt, the judgment adjudicating guilt superseded that order
and therefore also superseded the fine. Citing the same case upon which
appellant principally relies—Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App.
2004)—the State concedes that because a judgment adjudicating guilt “sets
aside an order deferring adjudication of guilt, a trial court cannot impose a fine at
adjudication—even one previously imposed as a condition of community
supervision—unless it orally pronounces one.” The State also acknowledges
that the trial court did not pronounce a fine when it adjudicated appellant’s guilt.
We agree with the parties’ shared understanding of Taylor as holding that
a judgment adjudicating guilt sets aside a fine that is contained in an order
deferring adjudication and that is not announced orally by the court when it
revokes community supervision and convicts and sentences a defendant. See
4 id. at 502; see also Abron v. State, 997 S.W.2d 281, 281–82 (Tex. App.—Dallas
1998, pet. ref’d) (modifying a judgment to delete a fine that was imposed in an
order deferring adjudication but was not orally pronounced upon the revocation of
community supervision, conviction, and sentencing). Thus, because the trial
court included $26.80 as part of the $400 fine in the order deferring adjudication
but did not announce any fine orally when it revoked appellant’s community
supervision and convicted and sentenced him, we hold that the fine must be
deleted. Taylor, 131 S.W.3d at 502; Abron, 997 S.W.2d at 281–82; see also
Noonkester v. State, No. 02-14-00147-CR, 2015 WL 831421, at *2 (Tex. App.—
Fort Worth Feb. 26, 2015, no pet.) (mem. op., not designated for publication)
(“[B]ecause the trial court did not include the fine previously assessed in its order
deferring adjudication in its oral pronouncement of sentence at the revocation
hearing, we reform the judgment adjudicating guilt to delete the $1,500 fine
. . . .”); Washington v. State, No. 02-11-00152-CR, 2012 WL 1345743, at *2 (Tex.
App.—Fort Worth Apr. 19, 2012, no pet.) (mem. op., not designated for
publication) (“[W]e reform the trial court’s judgment to delete the language
regarding the payment of the portion of reparations that is made up of a
previously assessed fine.”). We sustain appellant’s first point.
Validity of Court Costs
In his second point, appellant argues that $133 of the $309 in court costs
was imposed under section 133.102(a)(1) of the local government code, which
he asserts is facially unconstitutional. That section states that a person
5 “convicted of an offense shall pay,” in addition to all other costs, “$133 on
conviction of a felony.” Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (West Supp.
2014). The section also states that this cost must be remitted to the comptroller
for use in several funds, including funds concerning abused children’s
counseling, crime stoppers assistance, breath alcohol testing, criminal justice
planning, and judicial training. Id. § 133.102(b), (e). A bill of costs in the clerk’s
record includes $133 as a cost labeled as “CCC-Felony.”
Appellant contends that section 133.102(a)(1) violates the separation of
powers provision in the Texas Constitution. See Tex. Const. art. II, § 1. He
asserts that none of the uses for the cost authorized by section 133.102 are
“necessary or incidental” to the trial of a criminal case, that the cost therefore
operates as a tax and makes courts tax gatherers, and that a 1942 decision from
the court of criminal appeals precludes the cost. See Ex parte Carson, 143 Tex.
Crim. 498, 500–01, 505, 159 S.W.2d 126, 127, 130 (1942), overruled by Peraza
v. State, Nos. PD-0100-15, PD-0101-15, 2015 WL 3988926, at *7 (Tex. Crim.
App. July 1, 2015) (“We therefore reject Carson’s requirement that, in order to
pass constitutional muster, the statutorily prescribed court cost must be
‘necessary’ or ‘incidental’ to the ‘trial of a criminal case.’”).
Appellant did not present any of these arguments in the trial court. The
State contends that he therefore did not preserve them for our review. Generally,
to preserve a complaint for our review, a party must have presented to the trial
court a timely objection that states the specific grounds for the desired ruling if
6 they are not apparent from the context of the objection. Tex. R. App. P.
33.1(a)(1); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim. App. 2013);
Sanchez v. State, 418 S.W.3d 302, 305 (Tex. App.—Fort Worth 2013, pet. ref’d).
Further, the trial court must have ruled on the request, objection, or motion, either
expressly or implicitly, or the complaining party must have objected to the trial
court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263.
Even most constitutional issues, including facial challenges to the
constitutionality of a statute, may be forfeited by failing to raise them in the trial
court. 5 Ibenyenwa v. State, 367 S.W.3d 420, 422 (Tex. App.—Fort Worth 2012,
pet. ref’d) (op. on reh’g); see Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.
App. 2009) (“We conclude that a defendant may not raise for the first time on
appeal a facial challenge to the constitutionality of a statute.”). We should not
address the merits of an issue that has not been preserved for our review. Ford
v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).
5 While the court of criminal appeals has stated that a “penal statute’s . . . compliance with the separation of powers section of our state constitution” is a systemic requirement that may be raised for the first time on appeal, see Henson v. State, 407 S.W.3d 764, 768 (Tex. Crim. App. 2013), cert. denied, 134 S. Ct. 934 (2014), appellant does not contend that a penal statute violated separation of powers. In contexts other than challenges to the facial validity of penal code provisions, we have held that separation of powers arguments must be preserved in the trial court. See Gamble v. State, Nos. 02-13-00573-CR, 02-13- 00574-CR, 2015 WL 221108, at *4 (Tex. App.—Fort Worth Jan. 15, 2015, pet. ref’d) (mem. op., not designated for publication); Russell v. State, No. 02-11- 00478-CR, 2013 WL 626983, at *2 (Tex. App.—Fort Worth Feb. 21, 2013, pet. ref’d) (mem. op., not designated for publication).
7 Appellant acknowledges these general principles of error preservation but
cites Johnson v. State, a 2014 decision from the court of criminal appeals, to
argue that a “complaint . . . regarding the imposition of court costs upon the
revocation of community supervision can be raised for the first time on appeal.”
423 S.W.3d 385 (Tex. Crim. App. 2014). There, Johnson appealed the
assessment of $234 in court costs, contending that the record “contained no bill
of costs or other evidence supporting the $234 amount.” Id. at 388. Although a
court of appeals held that the costs had been included in the judgment
erroneously because no evidence supported them, the court of criminal appeals
held that a supplemental record that contained a bill of costs sufficiently
supported the costs. Id. at 388, 395–96. In reaching that holding, the court also
addressed preservation of error. Id. at 390–91. The court held that a “criminal
defendant need not preserve an objection in the trial court to raise a claim
challenging the bases for the imposition of court costs for the first time on
appeal.” Id. at 390 (emphasis added). In so holding, the court relied on one of
its previous opinions, which similarly concerned the factual basis for court-
ordered reimbursement of appointed attorney’s fees. See id. (citing Mayer v.
State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). 6 The court emphasized
6 In Mayer, the court explained,
We conclude that appellant’s complaint about the sufficiency of evidence of his financial resources and ability to pay were likewise not waived by his failure to raise such a complaint at trial. We
8 that “while some defendants in some cases may have an opportunity to
recognize a basis to object to the imposition of court costs in open court if an
itemized bill is available to them, most defendants . . . will not.” Id. at 390–91.
While the holding in Johnson signifies that a defendant need not object to
the factual bases for an aggregate amount of costs to contest that amount on
appeal, the holding does not explicitly or necessarily affect the more general rule
that a facial challenge to the constitutionality of a statute—a legal claim that is
independent of weighing facts that appear in the record—must be brought in a
trial court to be raised on appeal. 7 See Karenev, 281 S.W.3d at 434 (“Statutes
are presumed to be constitutional until it is determined otherwise. The State and
the trial court should not be required to anticipate that a statute may later be held
to be unconstitutional.” (footnote omitted)). Here, upon appellant’s conviction, he
had all the information needed to challenge the constitutionality of section
133.102(a)(1) while the trial court had authority to rule on the challenge. 8 See
Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (stating that a person “shall pay” $133
reiterate that no trial objection is required to preserve an appellate claim of insufficient evidence . . . .
309 S.W.3d at 556 (emphasis added). 7 A facial challenge to a statute is predicated only on the language of a statute, not how the statute applies to the circumstances of a particular case. See State v. Rosseau, 396 S.W.3d 550, 558 n.9 (Tex. Crim. App. 2013). 8 We note that the district clerk’s cost bill, which includes the $133 “CCC- Felony” cost, bears a date of April 21, 2015. The trial court sentenced appellant on April 16, 2015, and the trial court signed its judgment on April 22, 2015.
9 “on conviction of a felony”); see also State v. Aguilera, 165 S.W.3d 695, 697–98
(Tex. Crim. App. 2005) (explaining that “[a]t a minimum,” a trial court has plenary
power over a criminal case thirty days after sentencing occurs).
Accordingly, while acknowledging the holding in Johnson, one of our sister
courts recently held that a facial challenge to the constitutionality of section
133.102 cannot be raised for the first time on appeal. Guerrero v. State, Nos. 01-
13-00821-CR, 01-13-00822-CR, 2015 WL 2266247, at *3–4 (Tex. App.—
Houston [1st Dist.] May 14, 2015, pet. filed) (mem. op., not designated for
publication) (“[Johnson] did not address the constitutionality of court costs, and,
therefore, [does] not support Guerrero’s contention that he may assert his
constitutional claim for the first time on appeal. . . . [W]e hold that Guerrero failed
to preserve his constitutional challenge to . . . section 133.102’s allocation of
funds . . . .”); see also Thias v. State, No. 07-12-00513-CR, 2014 WL 6556530, at
*2 (Tex. App.—Amarillo Nov. 20, 2014, no pet.) (mem. op., not designated for
publication) (likewise holding that a defendant forfeited a constitutional challenge
to section 133.102 by raising it for the first time on appeal); cf. Salinas v. State,
464 S.W.3d 363, 365, 368 (Tex. Crim. App. 2015) (remanding a case to a court
of appeals to consider the merits of a constitutional challenge to section 133.102
when after sentencing, a defendant objected to the section’s constitutionality).
Because appellant had an opportunity upon his conviction in the trial court
to challenge the constitutionality of section 133.102 but instead brought the
challenge for the first time in this court, we hold that he forfeited the challenge,
10 and we overrule his second point. See Tex. R. App. P. 33.1(a); Karenev, 281
S.W.3d at 434; Guerrero, 2015 WL 2266247, at *3–4; Thias, 2014 WL 6556530,
at *2; see also Holmes v. State, 380 S.W.3d 307, 308 (Tex. App.—Fort Worth
2012, pet. ref’d) (“[A] challenge to the constitutionality of a statute is a forfeitable
right and must be preserved in the trial court during or after trial.” (emphasis
added)).
Conclusion
Having sustained appellant’s first point and having overruled his second
point, we modify the trial court’s judgment to exclude $26.80 from the total
amount of $468.80 of “[c]ourt costs, fees[,] and/or fines” that the judgment orders
appellant to pay. We reform the judgment so that the “Order to Withdraw Funds,”
which the judgment expressly incorporates, requires appellant to pay $442. As
modified, we affirm the judgment. See Tex. R. App. P. 43.2(b); Alexander, 301
S.W.3d at 364.
/s/ Terrie Livingston
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: October 1, 2015