PD-1254-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/26/2015 8:57:09 AM Accepted 10/27/2015 4:21:19 PM ABEL ACOSTA PD 1254-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS _______________________________________________
WILLIAM JOHNSON, Appellant,
v.
THE STATE OF TEXAS, Appellee. _______________________________________________
On Petition for Discretionary Review from the First Court of Appeals in No, 14–14–00475–CR affirming the conviction in cause number 1395867, From the 184th District Court of Harris County, Texas _______________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _______________________________________________
ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas
JANI MASELLI WOOD Assistant Public Defender Harris County, Texas TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 October 27, 2015 Fax: (713) 368-9278 Counsel for Appellant October 26, 2015 IDENTITY OF PARTIES AND COUNSEL
Appellant: William Johnson SPN#02689555 Harris County Jail 701 North San Jacinto Houston, TX 77002
Trial Prosecutor: Mr. Anthony Robinson Assistant District Attorney Harris County, Texas 1201 Franklin, 6th Floor Houston, Texas 77002
Defense Counsel at Trial: Mr. Walter Miller 1018 Preston, 5th Floor Houston, Texas 77002
Presiding Judge: Hon. Jan Krocker, Presiding Judge 184th District Court Harris County, Texas 1201 Franklin, 17th floor Houston, Texas 77002
Defense Counsel on Appeal: Jani Maselli Wood Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, Texas 77002
-2- Table of Contents
Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Court of Appeals determined that the constitutional challenge to the comprehensive rehabilitation court cost could not be raised for the first time on appeal. The basis for the challenge was not available to Mr. Johnson until 27 days after the judgment was signed. Did the Court of Appeals err in refusing to consider a challenge that was only available post-trial, in derogation of Landers v. State?. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Reasons for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . 7 The error was preserved based upon precedent from this Court.. . . . . . . . . 7 No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . . 8
Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
-3- INDEX OF AUTHORITIES PAGE Cases:
Cardenas v. State, 423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Johnson v. State, 14-14-00475-CR, 2015 WL 5025653 (Tex. App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). . . . . . . passim
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9
Statutes and Rules:
TEX. HUM. RES. CODE ANN. § 115.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. LOC. GOV'T CODE ANN. § 133.102(e)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-4- STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
STATEMENT OF THE CASE
This is an appeal from a conviction for aggravated robbery - deadly weapon.
(C.R. at 38). Mr. Johnson pleaded guilty and went to the court for punishment with
a presentence report. (C.R. at 24-25). After the report and testimony was presented,
Mr. Johnson was sentenced to eight years confinement in the Texas Department of
Criminal Justice - Institutional Division. (C.R. at 38).
STATEMENT OF THE PROCEDURAL HISTORY
In a published opinion, the Fourteenth Court of Appeals affirmed Mr.
Johnson’s conviction. Johnson v. State, 14-14-00475-CR, 2015 WL 5025653 (Tex.
App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). No motion for rehearing was
filed. After an extension of time, this petition is timely if filed on or before October
26, 2015.
GROUND FOR REVIEW
The Court of Appeals determined that the constitutional challenge to the comprehensive rehabilitation court cost could not be raised for the first time on appeal. The basis for the challenge was not available to Mr. Johnson until 27 days after the judgment was signed. Did the Court of Appeals err in refusing to consider a challenge that was only available post-trial, in derogation of Landers v. State?
-5- REASONS FOR REVIEW
This exact issue has been granted in London v. State, PD 0480-15.
The First Court of Appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States. TEX. R. APP. P. 66.3(c).
STATEMENT OF FACTS RELATIVE TO GROUND RAISED
Mr. Johnson was assessed the consolidated court cost which includes
subsection 6 - funds for comprehensive rehabilitation. Mr. Johnson challenged the fee
as an unconstitutional tax violating the separation of powers. Johnson, 2015 WL
5025653, at *2 (explaining that this was challenged on appeal but “Appellant did not
challenge the assessment of costs in the trial court through a motion for new trial or
any other vehicle.”).
Comprehensive Rehabilitation
Within the consolidated court cost is a the “comprehensive rehabilitation” cost
with 9.8218 percent of the $133 cost going for this “court cost.” TEX. LOC. GOV'T
CODE ANN. § 133.102(e)(6). After the cost to the county, the amount is about $11.75.
Money directed to this program is used to provide rehabilitation services to eligible
individuals. See TEX. HUM. RES. CODE ANN. § 115.001. The money is spent at the
direction of the Department of Assistive and Rehabilitative Services Id.
-6- ARGUMENT
The Court of Appeals held error was waived.
The Court of Appeals refused to consider the issue because the
constitutionality had not presented it first in the trial court:
The requirement that appellant preserve error in the trial court on constitutional challenges applies to challenges brought under the Texas Constitution. See Heidelberg v. State, 144 S.W.3d 535, 537–38 (Tex.Crim.App.2004); Curry, 910 S.W.2d at 496.
Johnson, 2015 WL 5025653, at *3.
The error was preserved based upon precedent from this Court.
This Court explained that challenges to court costs can be raised for the first
time on appeal and “[c]onvicted defendants have constructive notice of mandatory
court costs set by statute and the opportunity to object to the assessment of court
costs against them for the first time on appeal or in a proceeding under Article
103.008 of the Texas Code of Criminal Procedure.” Cardenas v. State, 423 S.W.3d 396,
399 (Tex. Crim. App. 2014). In a companion case decided the same day, Johnson v.
State, the Court further explained that because the cost bill is most likely unavailable
at the time of the judgment, an “Appellant need not have objected at trial to raise a
claim challenging the bases of assessed costs on appeal.” Johnson v. State, 423 S.W.3d
385, 391 (Tex. Crim. App. 2014).
-7- The Court of Appeals held that neither of those cases allowed for a
constitutional challenge on appeal:
Because neither Johnson nor Cardenas provides appellant with an exception to the requirement that he preserve his facial constitutional challenge in the trial court, we conclude that appellant failed to preserve error for appellate review. See Karenev, 281 S.W.3d at 434; Heidelberg, 144 S.W.3d at 537–38; Curry, 910 S.W.2d at 496. And, because appellant failed to preserve error, his second issue is overruled.
No objection was necessary in the trial court.
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 v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013). 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
-8- had ever been created and it would “allow a judge to de facto alter the statutory time
frame for motions for new trial.” Landers, 402 S.W.3d at 255.
The cost bill in these cases was created on June 11, 2014. The judgment was
entered on May 15, 2014. Almost four weeks had passed. This Court has held that
Mr. Johnson was not required to file a motion for new trial in order to preserve his
challenge. The Court of Appeals erred in determining this issue was unpreserved.
PRAYER FOR RELIEF
For the reasons states above, Mr. Johnson prays that this Court grant his
petition for discretionary review.
Respectfully submitted, ALEXANDER BUNIN Chief Public Defender Harris County Texas
Jani Maselli Wood _______________________________ JANI J. MASELLI WOOD Assistant Public Defender Harris County, Texas Jani.Maselli@pdo.hctx.net TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278
Attorney for Appellant William Johnson
-9- CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. Proc. 9.5, this certifies that on October 26, 2015, a
copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and
the Harris County District Attorney’s Office through texfile.com at the following
address:
Melissa Hervey Assistant District Attorney 1201 Franklin Street, 6th Floor Houston, TX 77002 Hervey_Melissa@dao.hctx.net
Lisa McMinn Lisa.McMinn@SPA.texas.gov
Jani Maselli Wood _________________________________ JANI J. MASELLI WOOD
-10- CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).
1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this
petition contains 1007 words printed in a proportionally spaced typeface.
2. This petition is printed in a proportionally spaced, serif typeface using
Garamond 14 point font in text and Garamond 14 point font in footnotes produced
by Corel WordPerfect software.
3. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
Jani Maselli Wood ____________________________ JANI J. MASELLI WOOD
-11- Appendix A Opinion Johnson v. State Trial court's questions to defense counsel directed 2015 WL 5025653 at whether State had made offer on charge for Only the Westlaw citation is currently available. robbery and clarification for record that offer had not been accepted, before accepting defendant's NOTICE: THIS OPINION HAS NOT BEEN RELEASED guilty plea, did not constitute interference with FOR PUBLICATION IN THE PERMANENT LAW plea negotiations; plea negotiations had already REPORTS. UNTIL RELEASED, IT IS SUBJECT TO ended, and defendant had already rejected offer, REVISION OR WITHDRAWAL. and trial court made no comment suggesting that defendant should reconsider or that State should Court of Appeals of Texas, engage in further negotiations. Tex. Crim. Proc. Houston (14th Dist.). Code Ann. art. 26.13(a)(2).
William Johnson, Appellant Cases that cite this headnote v. The State of Texas, Appellee NO. 14–14–00475–CR | Opinion filed August 25, 2015 [2] Criminal Law Representations, promises, or coercion; plea bargaining
Plea bargains are a crucial aspect of the Texas justice system, and it is improper for a trial judge Synopsis to participate or become otherwise involved in the Background: Defendant was convicted on guilty plea in the process by which plea bargains are formed. 184th District Court Harris County, of aggravated robbery with deadly weapon. Defendant appealed. Cases that cite this headnote
Holdings: The Court of Appeals, Kem Thompson Frost, C.J., held that: [3] Criminal Law Representations, promises, or coercion; plea bargaining [1] trial court did not interfere with plea negotiations; Plea bargaining is the process where a defendant who is accused of a particular criminal offense, [2] aggravated robbery with use or exhibition of deadly and his attorney, if he has one, and the prosecutor weapon was first-degree felony, not state-jail felony; and enter into an agreement which provides that the trial on that particular charge not occur or that it will be disposed of pursuant to the agreement [3] oral pronouncement at plea hearing that guilty plea was between the parties, subject to the approval of the not pursuant to plea bargain, and therefore, that defendant had trial judge. right to appeal, controlled over written judgment stating that defendant was convicted pursuant to plea bargain and that he had no right to appeal. Cases that cite this headnote Affirmed as modified.
[4] Criminal Law Costs West Headnotes (12)
[1] Criminal Law Representations, promises, or coercion; plea bargaining Defendant failed to preserve for review on direct Oral pronouncement at hearing on guilty plea to appeal claim that statutory comprehensive aggravated robbery with deadly weapon that plea rehabilitation fee assessed as part of sentence for was not pursuant to plea bargain, and therefore, aggravated robbery with deadly weapon violated that defendant had right to appeal, controlled over separation of powers because fee statute required written judgment of sentence stating that courts to collect funds that were unrelated to court defendant was convicted pursuant to plea bargain functions and rehabilitation was within province and that he had no right to appeal. of executive branch, where he did not raise claim at trial. Tex. Const. art. 2, § 1; Tex. Loc. Gov't Code Ann. § 133.102; Tex. R. App. P. 33.1(a). Cases that cite this headnote
Cases that cite this headnote [9] Sentencing and Punishment Presence of Defendant Sentencing and Punishment [5] Criminal Law Necessity of writing Constitutional questions A defendant's sentence must be pronounced orally An appellant is required to preserve error in the in his presence. trial court on a facial or as-applied challenge to the constitutionality of the statute, because his right to a constitutional challenge of the statute is Cases that cite this headnote a right that can be forfeited if it is not raised in the trial court. Tex. R. App. P. 33.1(a).
[10] Criminal Law Cases that cite this headnote Requisites and Sufficiency of Judgment Sentencing and Punishment Necessity of writing
[6] Criminal Law The judgment, including the sentence assessed, is Constitutional questions the written declaration and embodiment of the oral pronouncement of sentence. The requirement that appellant preserve error in the trial court on constitutional challenges applies to challenges brought under the Texas Cases that cite this headnote Constitution. Tex. R. App. P. 33.1(a).
Cases that cite this headnote [11] Sentencing and Punishment Oral and written pronouncements
When there is a conflict between the oral [7] Robbery pronouncement of sentence and the sentence in Degrees; armed robbery the written judgment, the oral pronouncement controls. Aggravated robbery with use or exhibition of deadly weapon was first-degree felony, not state-jail felony. Tex. Penal Code Ann. § 29.03. Cases that cite this headnote
Cases that cite this headnote [12] Criminal Law Contradiction of, or conflict in, record
[8] Criminal Law Contradiction of, or conflict in, record Criminal Law Plea of Guilty or Nolo Contendere If the trial court's oral pronouncement of whether trial court accepted the plea. The trial court later sentenced a defendant has the right to appeal conflicts with appellant to eight years' confinement and assessed court costs. its written judgment, the oral pronouncement controls.
II. Analysis Cases that cite this headnote
A. Alleged Interference in Plea Negotiations
[1]Appellant asserts the trial court violated his right to have his punishment assessed by an impartial judge because the trial On Appeal from the 184th District Court Harris County, court became biased through interference in plea negotiations. Texas, Trial Court Cause No. 1395867 According to appellant, the interference caused the trial court to become an advocate for the plea agreement. Appellant Attorneys and Law Firms argues that if the trial court advocates for a plea agreement, the trial court's advocacy can give the court “a personal stake” in Devon Anderson, Melissa Hervey, for The State of Texas. the agreement. Appellant suggests that by interfering, the trial court became biased and could not be neutral and detached in Jani J. Maselli Wood, for William Johnson. assessing punishment. Appellant also asserts a trial court's Panel consists of Chief Justice Frost and Justices Boyce and interference in plea negotiations is coercive. McCally.
[2] [3]We presume, without deciding, appellant's argument is preserved for appellate review. Plea bargains are a crucial aspect of the Texas justice system and it is improper for a trial OPINION judge to participate or become otherwise involved in the process by which plea bargains are formed. See Moore v. State, 295 S.W.3d 329, 331—32 (Tex.Crim.App.2009); Ex parte Shuflin, 528 S.W.2d 610, 617 (Tex.Crim.App.1975). Plea bargaining is Kem Thompson Frost, Chief Justice the process where a defendant who is accused *1 Appellant William Johnson challenges his conviction for of a particular criminal offense, and his aggravated robbery with a deadly weapon and the trial court's attorney, if he has one, and the prosecutor assessment of court costs against him. Appellant asserts the enter into an agreement which provides that trial court violated his right to a neutral judge by questioning the trial on that particular charge not occur or him about the plea offer he rejected. Appellant also challenges that it will be disposed of pursuant to the Texas Local Government Code section 133.102 as violating agreement between the parties, subject to the the Texas Constitution. And, both the State and appellant approval of the trial judge. claim the judgment contains errors. We modify the judgment to correct errors, but we overrule appellant's other issues and Perkins v. Court of Appeals for Third Supreme affirm the judgment as modified. Judicial Dist. of Tex., 738 S.W.2d 276, 282 (Tex.Crim.App.1987).
I. Factual and Procedural Background *2 The record reveals that before appellant pled “guilty,” the trial court questioned appellant After being charged with aggravated robbery using or regarding plea negotiations: exhibiting a deadly weapon, appellant pleaded “guilty” without any agreed recommendation. Before appellant entered [The Court]: Did I understand there is no plea his plea, the trial court questioned him regarding his bargain? competency and asked if he understood the impact of his action. In particular, the trial court queried whether appellant [Appellant's counsel]: That's correct, Your Honor. understood the plea bargain offered by the State and the potential range of punishment the trial court could impose. The trial court stated it would determine the sentence after [The Court]: I do recall there was some discussion reviewing a pre-sentence investigation report considering about whether or not the State might make him an evidence. After articulating an understanding of the offer on robbery. Did they ever do that? consequences of his plea, appellant pleaded “guilty,” and the existence of a plea bargain agreement before [Appellant's counsel]: We talked about it, Your accepting a “guilty” plea). The trial court explained Honor, but, as I explained to the prosecution earlier, that the purpose of the query was to ensure the is that based on the facts and the nature and his record reflected appellant understood the involvement, I thought deferred would have been consequences of pleading “guilty” without a plea most appropriate thing to do. And so— bargain.
[The Court]: Right. I just want the record to reflect The record shows that the trial court was not that he turned that down. Did he turn that down? involved in plea negotiations and, therefore, did not develop any sort of personal stake in the negotiations that would affect the trial court's impartiality. See [Appellant's counsel]: He did. Yes, Your Honor. Garcia v. State, 75 S.W.3d 493, 499 (Tex.App.—San Antonio 2002, pet. ref'd) (noting that lengthy admonishments by the trial court do not [The Court]: Is that right, they offered you mean that the trial court is involved in plea something on robbery? Did you give him a number negotiations). The trial court did not interfere in plea of years on robbery? Did you get that— negotiations. See Perkins, 738 S.W.2d at 282; Garcia, 75 S.W.3d at 499. Because the trial court did not interfere in plea negotiations, appellant's [Appellant's counsel]: Two years, Your Honor. arguments are without merit. See id. Accordingly, appellant's first issue is overruled.
[The Court]: Two years?
B. Comprehensive Rehabilitation Fee [Appellant's counsel]: Did I misrepresent? [4]Section 133.102 of the Texas Local Government Code governs consolidated fees on conviction. See [Prosecutor]: No, I believe it was—I believe when Tex. Loc. Gov't Code Ann. § 133.102 (West, you talked with the chief, the discussion was two Westlaw through 2013 3d C.S.). In his second issue, years. appellant asserts the court costs assessed under this statute violate the Texas Constitution. The bill of costs was issued the same day as the judgment. [The Court]: Ok[ay]. On a reduced charge of Appellant did not challenge the assessment of costs robbery. Am I correct in thinking you do not want in the trial court through a motion for new trial or that? Is that right? I just want the record to reflect any other vehicle. that. Is that right?
*3 On appeal, appellant asserts section 133.102 [Appellant]: Yes, ma'am. violates the Texas Constitution because it authorizes the trial court to collect, as court costs, money that is used for comprehensive rehabilitation. Id. § [The Court]: Ok[ay]. There is no plea bargain. 133.012(e)(6). Appellant argues that using court costs to fund rehabilitation efforts violates the separation of powers because it requires the courts to collect funds that are unrelated to court functions. Appellant argues that the trial court's specific See Tex. Const. art. II, § 1 (West, Westlaw through questions regarding the length of time the State 2013 3d C.S.). Appellant asserts rehabilitation is offered as a recommended sentence constituted within the province of the executive branch. interference in plea negotiations. The record reveals that at the time of the trial court's questioning, plea negotiations already had ended and appellant already [5] [6]To prevail on appeal, appellant was required had rejected the plea bargain. The trial court did not to preserve error in the trial court on his facial suggest that appellant should reconsider his rejection challenge to the constitutionality of the statute, and attempt to engage the State in further plea because his right to a facial challenge of the statute negotiations. Rather, the trial court simply clarified is a right that can be forfeited if it is not raised in the for the record that appellant was aware of the trial court. See Tex. R. App. P. 33.1(a); Karenev v. specifics of the plea bargain offered by the State and State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009). that he had turned it down. See Tex. Code Crim. To the extent appellant's issue can be construed as an Proc. Ann. art. 26.13(a)(2) (West, Westlaw through as-applied challenge, appellant was similarly 2013 3d C.S.) (requiring trial-court inquiry into the required to raise the challenge in the trial court. See Johnson v. State, --- S.W.3d ---- (2015)
Curry v. State, 910 S.W.2d 490, 496 Errors in the Judgment (Tex.Crim.App.1995). The requirement that appellant preserve error in the trial court on In his third issue, appellant asserts that the judgment constitutional challenges applies to challenges contains two errors. The State concedes both errors. brought under the Texas Constitution. See Heidelberg v. State, 144 S.W.3d 535, 537–38 (Tex.Crim.App.2004); Curry, 910 S.W.2d at 496. 1. Level of Offense
Appellant relies on the Court of Criminal Appeals's *4 [7]Appellant pled “guilty” to aggravated robbery holdings in Johnson v. State and Cardenas v. State with the use or exhibition of a deadly weapon, a in asserting he was not required to preserve error in first-degree felony. See Tex. Penal Code Ann. § the trial court regarding his constitutional challenge 29.03 (West, Westlaw through 2013 3d C.S.). The to the court costs assessed against him. See Johnson admonishments appellant signed in conjunction with v. State, 423 S.W.3d 385 (Tex.Crim.App.2014); his “guilty” plea reflect that the offense is a Cardenas v. State, 423 S.W.3d 396 first-degree felony. The judgment reflects appellant (Tex.Crim.App.2014). In Johnson and Cardenas, the was convicted of the offense of aggravated robbery Court of Criminal Appeals addressed instances in with a deadly weapon, but it lists the degree of the which defendants sought review of court costs offense as a state-jail felony. Appellant requests that assessed against them after the judgment of we reform the judgment to reflect conviction for a conviction was entered on the grounds that the first-degree felony rather than a state-jail felony. The record did not support any basis for imposing court State agrees that we should grant this relief. costs against the defendants. See Johnson, 423 S.W.3d at 388; Cardenas, 423 S.W.3d at 398. Noting that the review was similar to a The trial court erred in rendering judgment against legal-sufficiency review, and that most defendants appellant for a state-jail felony. We therefore modify would not have an opportunity to object to baseless the judgment to reflect appellant's conviction for a court costs in the trial court, the Court of Criminal first-degree felony. See French v. State, 830 S.W.2d Appeals held in Johnson that Johnson was not 607, 609 (Tex.Crim.App.1992); Musgrove v. State, required to object at trial to raise a claim challenging 425 S.W.3d 601, 612 (Tex.App.—Houston [14th the bases of assessed costs on appeal. See Johnson, Dist.] 2014, pet. ref'd) (modifying judgment to 423 S.W.3d at 390–91. In Cardenas, the Court of reflect correct offense level). Criminal Appeals rejected Cardenas's argument that supplementing the clerk's record with a bill of costs violated his right to due process of law, in part, because Cardenas was able to challenge the basis of 2. Right to Appeal the costs for the first time on appeal. Cardenas, 423 S.W.3d at 399. In neither of these cases does the [8]Appellant asserts that the trial court erred in its high court hold that a defendant who had an written judgment by stating that he had no right to opportunity to present a challenge to the appeal. The written judgment says appellant was constitutionality of a statute imposing court costs in convicted pursuant to a plea bargain and has no right the trial court may raise his constitutional challenge to appeal. At the hearing on appellant's guilty plea, for the first time on appeal. Because neither Johnson however, the trial court stated that because there was nor Cardenas provides appellant with an exception no plea bargain, appellant had the right to appeal. to the requirement that he preserve his facial The record reflects there was no plea bargain in this constitutional challenge in the trial court, we case. conclude that appellant failed to preserve error for appellate review. See Karenev, 281 S.W.3d at 434; Heidelberg, 144 S.W.3d at 537–38; Curry, 910 [9] [10] [11] [12]A defendant's sentence must be S.W.2d at 496. And, because appellant failed to pronounced orally in his presence. Taylor v. State, preserve error, his second issue is overruled. 131 S.W.3d 497, 500 (Tex.Crim.App.2004). The judgment, including the sentence assessed, is the written declaration and embodiment of that oral pronouncement. Id. When there is a conflict between
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17
-17- Johnson v. State, --- S.W.3d ---- (2015)
the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls. Id. Similarly, if the trial court's oral pronouncement of whether a defendant has the right to appeal conflicts with its written judgment, the oral pronouncement controls. Grice v. State, 162 S.W.3d 641, 644–45 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd).
The trial court's special finding that appellant does not have the right to appeal conflicts with the judge's oral pronouncement that appellant had the right to appeal. Because the oral pronouncement is inconsistent with the written judgment, we modify the written judgment to reflect the oral pronouncement that appellant has the right to appeal. See id.
III. Conclusion
Appellant does not prevail on his first issue. The trial court did not violate appellant's right to a neutral judge by its actions in connection with the plea negotiations because the trial court did not interfere in the negotiations. Nor does appellant prevail on the constitutional challenge presented in his second issue. Appellant did not preserve error in the trial court on his claim that section 133.102 violates the Texas Constitution. Appellant, however, is entitled to relief on his third issue because the judgment contains errors. The judgment incorrectly reflects appellant was convicted of a state-jail felony and that appellant has no right of appeal. We modify the judgment to reflect appellant's conviction for a first-degree felony and to reflect appellant's right to appeal. We affirm the trial court's judgment as modified.
All Citations
--- S.W.3d ----, 2015 WL 5025653
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