IN THE TENTH COURT OF APPEALS
No. 10-19-00129-CR
JAMES HUEY HOGAN, Appellant v.
THE STATE OF TEXAS, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. 18-25086
MEMORANDUM OPINION
In one issue, appellant, James Huey Hogan Jr., argues that articles 42.0199 and
42A.559(g) violate the non-delegation doctrine and, therefore, are unconstitutional. See
TEX. CODE CRIM. PROC. ANN. arts. 42.0199, 42A.559(g) (West 2018). We affirm.
I. BACKGROUND
In a one-count indictment, appellant was charged with intentionally or knowingly
possessing a controlled substance in penalty group one less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017). After a trial to the jury, appellant
was found guilty, and the jury assessed punishment at two years’ incarceration in the
State Jail Division of the Texas Department of Criminal Justice. The trial court certified
appellant’s right to appeal, and this appeal followed.
II. DILIGENT PARTICIPATION CREDITS
In his sole issue on appeal, appellant contends that articles 42.0119 and 42A.599(g)
violate the Texas Constitution’s prohibition against non-delegation between the branches
of government.1 Specifically, appellant asserts that the aforementioned statutory
provisions give “the judiciary a voice in the determination whether a criminal defendant
is ‘presumptively entitled’ to diligent participation credits at the time of sentencing, and
potentially later if ever to be granted these ‘credits’ while serving a sentence in a state jail
facility.” In essence, appellant argues that an award of diligent participation credits is a
form of commutation of a defendant’s sentence, and clemency powers have historically
been exercised by the executive branch of government, not the judiciary. Appellant raises
facial constitutionality challenges to the aforementioned statutory provisions.
1 Article 42.0199 of the Code of Criminal Procedure provides that: “If a person is convicted of a state jail felony, the judge shall make a finding and enter the finding in the judgment of the case regarding whether the person is presumptively entitled to diligent participation credit in accordance with Article 42A.559.” TEX. CODE CRIM. PROC. ANN. art. 42.0199 (West 2018). Article 42A.559(b) states that a defendant confined in a state-jail-felony facility does not earn good conduct time for time served in the facility; rather, under article 42A.559(g), a judge may, based on a report submitted by the Texas Department of Criminal Justice, “credit against any time a defendant is required to serve in a state jail felony facility additional time for each day the defendant actually served in the facility while diligently participating in an educational, vocational, treatment, or work program.” See id. art. 42A.559(b), (g) (West 2018).
Hogan v. State Page 2 Constitutional challenges to a statute are generally forfeited by a failure to object
at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see also Mendez
v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). A defendant may not raise a facial
challenge to the constitutionality of a statute for the first time on appeal. See Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).
In the trial court, appellant made no objection to the constitutionality of articles
42.0119 and 42A.599(g). However, relying on the Court of Criminal Appeals’s decision
in Landers v. State, appellant complains that he had no opportunity to object to the finding
regarding diligent participation credits because the finding was not imposed in open
court. See 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).2 We disagree.
Following the jury’s verdict on punishment, the trial court informed appellant that
he would be sentenced in accordance with that verdict. The trial court then asked
appellant if he had any legal reason why the trial court should not sentence him in
accordance with the jury’s verdict. Appellant responded that he did not. At this point,
the trial court noted that the court clerk needed assistance with the judgment. After a
brief pause off the record, the trial court stated the following:
THE COURT: Back on the record. Court just addressed some questions the court clerk had in preparing the
2 In Landers v. State, the Court of Criminal Appeals held that “appellant may not be faulted for failing to object [to the imposition of court costs] when she was not given the opportunity. 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.” 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).
Hogan v. State Page 3 judgment, which I believe is going to be prepared in just a moment.
The trial judge proceeded to discuss appellant’s right of appeal and appointment of
counsel on appeal.
At the conclusion of the proceedings, the trial judge noted:
THE COURT: All right. And I believe we have the judgment prepared as well. Judgment is—have the credit on the state jail. This concludes this matter for purposes of the record other than entering the judgment. We’re off the record.
The first page of the judgment, entered on March 26, 2019, included a statement as
follows: “(For state jail felony offenses only) Is Defendant presumptively entitled to
diligent participation credit in accordance with Article 42A.559, Tex. Code Crim. Proc.?”
Following this question was the designation, “N/A.” The second page of the March 26,
2019 judgment further indicated that “DEFENDANT DOES NOT QUALIFY FOR
DELIGIENT [sic] PARTISIPATION [sic].” Appellant’s fingerprint appears on the
judgment. Thereafter, the trial court entered two nunc pro tunc judgments correcting
and clarifying, but not substantively changing, the diligent-participation finding.
Unlike Landers, this is not the case where costs or some other form of punishment
were imposed days after the judgment was signed so that appellant did not have an
opportunity to object. See 402 S.W.3d at 255. As shown above, the March 26, 2019
judgment, including the finding regarding diligent participation credits, was drafted in
Hogan v. State Page 4 appellant’s presence. This is demonstrated by the trial court’s statement, at the
punishment hearing, that appellant was getting “credit on the state jail” and the fact that
appellant’s fingerprint was on the March 26, 2019 judgment. Appellant’s fingerprint on
the judgment is particularly noteworthy because it demonstrates that the March 26, 2019
judgment, which first addressed diligent participation credits, was completed in open
court, not days later. Therefore, contrary to his assertions, appellant had an opportunity
to lodge an objection to the finding on diligent participation credits, yet did not do so.
See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016) (“A party satisfies the
requirement of a timely trial-level complaint ‘if the party makes the complaint as soon as
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IN THE TENTH COURT OF APPEALS
No. 10-19-00129-CR
JAMES HUEY HOGAN, Appellant v.
THE STATE OF TEXAS, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. 18-25086
MEMORANDUM OPINION
In one issue, appellant, James Huey Hogan Jr., argues that articles 42.0199 and
42A.559(g) violate the non-delegation doctrine and, therefore, are unconstitutional. See
TEX. CODE CRIM. PROC. ANN. arts. 42.0199, 42A.559(g) (West 2018). We affirm.
I. BACKGROUND
In a one-count indictment, appellant was charged with intentionally or knowingly
possessing a controlled substance in penalty group one less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017). After a trial to the jury, appellant
was found guilty, and the jury assessed punishment at two years’ incarceration in the
State Jail Division of the Texas Department of Criminal Justice. The trial court certified
appellant’s right to appeal, and this appeal followed.
II. DILIGENT PARTICIPATION CREDITS
In his sole issue on appeal, appellant contends that articles 42.0119 and 42A.599(g)
violate the Texas Constitution’s prohibition against non-delegation between the branches
of government.1 Specifically, appellant asserts that the aforementioned statutory
provisions give “the judiciary a voice in the determination whether a criminal defendant
is ‘presumptively entitled’ to diligent participation credits at the time of sentencing, and
potentially later if ever to be granted these ‘credits’ while serving a sentence in a state jail
facility.” In essence, appellant argues that an award of diligent participation credits is a
form of commutation of a defendant’s sentence, and clemency powers have historically
been exercised by the executive branch of government, not the judiciary. Appellant raises
facial constitutionality challenges to the aforementioned statutory provisions.
1 Article 42.0199 of the Code of Criminal Procedure provides that: “If a person is convicted of a state jail felony, the judge shall make a finding and enter the finding in the judgment of the case regarding whether the person is presumptively entitled to diligent participation credit in accordance with Article 42A.559.” TEX. CODE CRIM. PROC. ANN. art. 42.0199 (West 2018). Article 42A.559(b) states that a defendant confined in a state-jail-felony facility does not earn good conduct time for time served in the facility; rather, under article 42A.559(g), a judge may, based on a report submitted by the Texas Department of Criminal Justice, “credit against any time a defendant is required to serve in a state jail felony facility additional time for each day the defendant actually served in the facility while diligently participating in an educational, vocational, treatment, or work program.” See id. art. 42A.559(b), (g) (West 2018).
Hogan v. State Page 2 Constitutional challenges to a statute are generally forfeited by a failure to object
at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see also Mendez
v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). A defendant may not raise a facial
challenge to the constitutionality of a statute for the first time on appeal. See Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).
In the trial court, appellant made no objection to the constitutionality of articles
42.0119 and 42A.599(g). However, relying on the Court of Criminal Appeals’s decision
in Landers v. State, appellant complains that he had no opportunity to object to the finding
regarding diligent participation credits because the finding was not imposed in open
court. See 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).2 We disagree.
Following the jury’s verdict on punishment, the trial court informed appellant that
he would be sentenced in accordance with that verdict. The trial court then asked
appellant if he had any legal reason why the trial court should not sentence him in
accordance with the jury’s verdict. Appellant responded that he did not. At this point,
the trial court noted that the court clerk needed assistance with the judgment. After a
brief pause off the record, the trial court stated the following:
THE COURT: Back on the record. Court just addressed some questions the court clerk had in preparing the
2 In Landers v. State, the Court of Criminal Appeals held that “appellant may not be faulted for failing to object [to the imposition of court costs] when she was not given the opportunity. 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.” 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).
Hogan v. State Page 3 judgment, which I believe is going to be prepared in just a moment.
The trial judge proceeded to discuss appellant’s right of appeal and appointment of
counsel on appeal.
At the conclusion of the proceedings, the trial judge noted:
THE COURT: All right. And I believe we have the judgment prepared as well. Judgment is—have the credit on the state jail. This concludes this matter for purposes of the record other than entering the judgment. We’re off the record.
The first page of the judgment, entered on March 26, 2019, included a statement as
follows: “(For state jail felony offenses only) Is Defendant presumptively entitled to
diligent participation credit in accordance with Article 42A.559, Tex. Code Crim. Proc.?”
Following this question was the designation, “N/A.” The second page of the March 26,
2019 judgment further indicated that “DEFENDANT DOES NOT QUALIFY FOR
DELIGIENT [sic] PARTISIPATION [sic].” Appellant’s fingerprint appears on the
judgment. Thereafter, the trial court entered two nunc pro tunc judgments correcting
and clarifying, but not substantively changing, the diligent-participation finding.
Unlike Landers, this is not the case where costs or some other form of punishment
were imposed days after the judgment was signed so that appellant did not have an
opportunity to object. See 402 S.W.3d at 255. As shown above, the March 26, 2019
judgment, including the finding regarding diligent participation credits, was drafted in
Hogan v. State Page 4 appellant’s presence. This is demonstrated by the trial court’s statement, at the
punishment hearing, that appellant was getting “credit on the state jail” and the fact that
appellant’s fingerprint was on the March 26, 2019 judgment. Appellant’s fingerprint on
the judgment is particularly noteworthy because it demonstrates that the March 26, 2019
judgment, which first addressed diligent participation credits, was completed in open
court, not days later. Therefore, contrary to his assertions, appellant had an opportunity
to lodge an objection to the finding on diligent participation credits, yet did not do so.
See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016) (“A party satisfies the
requirement of a timely trial-level complaint ‘if the party makes the complaint as soon as
the grounds for it become apparent[.]’” (quoting Gillenwaters v. State, 205 S.W.3d 534, 537
(Tex. Crim. App. 2006))).
And even if it could be said that appellant did not have the opportunity to raise
this challenge in open court, the record reflects that appellant did not file a motion for
new trial in this case. See Burt v. State, 396 S.W.3d 574, 577-78 & n.4 (Tex. Crim. App.
2013) (“This Court has held that an appellant may raise a sentencing issue in a motion for
new trial for the first time only if the appellant did not have the opportunity to object in
the punishment hearing.”). Because appellant did not raise his constitutional challenges
to articles 42.0199 and 42A.559(g) in the trial court when he had an opportunity to do so,
we cannot say that he preserved this issue for appellate review. See Karenev, 281 S.W.3d
Hogan v. State Page 5 at 434; Mendez, 138 S.W.3d at 342; Curry, 910 S.W.2d at 496 & n.2. Accordingly, we
overrule his sole issue on appeal.
III. CONCLUSION
We affirm the judgment of the trial court.
JOHN E. NEILL Justice
Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed February 26, 2020 Do not publish [CR25]
Hogan v. State Page 6