Sheldon McDaniel v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 1, 2021
• Docket: 10-21-00050-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00050-CR

SHELDON MCDANIEL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 77th District Court Limestone County, Texas Trial Court No. 14931-A

MEMORANDUM OPINION

Sheldon McDaniel pleaded guilty to the state jail felony offense of possession of a

controlled substance. The trial court received his plea of guilty and after a punishment

hearing assessed McDaniel’s punishment at twenty months in a state jail facility. We

will affirm. Procedural and Factual Background

McDaniel waived trial by jury and pleaded guilty to the court without a

punishment recommendation from the state. After McDaniel entered his plea the trial

court ordered a pre-sentence investigation in which McDaniel failed to participate.

After a punishment hearing the trial court sentenced McDaniel to twenty months in a

state jail facility. The trial court’s written judgment did not include a finding that

McDaniel was presumptively entitled to diligent participation credit. See TEX. CODE

CRIM. PROC. ANN. art. 42.0199.

Issue One

McDaniel now complains in one issue that the Code of Criminal Procedure’s

requirement that trial courts determine eligibility for diligent participation credit

against time served in a state jail facility is facially unconstitutional because it violates

the Texas Constitution's non-delegation doctrine. See TEX. CONST. art. II, § 1.

APPLICABLE LAW

We review de novo as a question of law whether a criminal statute is

constitutional. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When we conduct

our review, we are required to presume that the statute is constitutional and that the

legislature was neither unreasonable nor arbitrary in enacting it. See Karenev v. State,

281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.

Crim. App. 2002). We will uphold the statute if we can apply a reasonable construction

McDaniel v. State Page 2 that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.

[Panel Op.] 1979). The burden of establishing that a statute is unconstitutional falls on

the party seeking to challenge the statute. State v. Rosseau, 396 S.W.3d 550, 557 (Tex.

Crim. App. 2013). A facial challenge to the constitutionality of a statute can be forfeited

if not challenged in the trial court and may not be raised for the first time on appeal.

Karenev v. State, 281 S.W.2d at 434.

DISCUSSION

The record before us reflects that on December 21, 2020, when McDaniel pleaded

guilty, the trial court admonished him that his offense was a state jail felony. At the

time of his plea, articles 42.0199 and 42A.559 of the Code of Criminal Procedure set

forth the procedure regarding the grant of credit for diligent participation in state jail

felonies. TEX. CODE CRIM. PROC. ANN. art. 42.0199, 42A.559. The trial court conducted a

punishment hearing on March 9, 2021, some three months after admonishing McDaniel

that he was pleading guilty to a state jail felony. McDaniel knew he was charged with a

state jail felony and did not lodge an oral or written objection asserting that article

42.0199 or 42A.559 violated the non-delegation doctrine and was therefore facially

unconstitutional or unconstitutional as applied to McDaniel. The judgment was signed

by the judge and filed with the district clerk on March 9, 2021. McDaniel's pro se notice

of appeal was also filed on March 9, 2021. While no facts needed to be developed

regarding this issue, McDaniel could have utilized a motion for new trial to put the trial

McDaniel v. State Page 3 court on notice of his assertion that article 42.0199 and/or 42A.559 were

unconstitutional. We recognize that there is no requirement that “magic language” be

used but the record should clearly reflect that the trial judge and opposing counsel

understood the issue was raised in the trial court. See State v. Rosseau, 396 S.W.3d at 555.

Here the record is devoid of any such challenge to the constitutionality of articles

42.0199 and 42A.559. McDaniel did not make his constitutional challenge in the trial

court; therefore, his complaint is not preserved for review. See TEX. R. APP. P. 33.1(a)(1).

Accordingly, we overrule McDaniel’s sole issue.

Conclusion

We affirm the judgment of the trial court.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Do not publish Opinion delivered and filed December 1, 2021 [CR 25]

McDaniel v. State Page 4