                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00047-CR


BRIAN LEE ROGERS                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1377954D

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                           MEMORANDUM OPINION1

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      Upon Appellant Brian Lee Rogers’s open plea of guilty, the trial court

convicted him of aggravated sexual assault of a child under fourteen years of age

and sentenced him to twenty-eight years’ confinement.2 A day after sentencing,



      1
          See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 12.32(a) (West 2011) (providing range of
confinement   for   first-degree felony    is  life  or    5–99     years),
the trial court signed the judgment, and court costs were assessed. Included in

the total court costs of $639.00 were $250.00 related to DNA testing and $100 for

the county child abuse prevention fund. In three points, Appellant challenges the

facial constitutionality of the provisions of the code of criminal procedure

authorizing the assessment of the DNA testing costs and the child abuse

prevention costs and also contends that the trial court’s consideration of the

presentence investigation report (PSI) violated his right to confront witnesses

against him. Because we follow the Texas Court of Criminal Appeals in rejecting

Appellant’s grounds for holding the cost statutes facially unconstitutional and

because he affirmatively stated that he had no objection to the admission of the

PSI, we affirm the trial court’s judgment.

Facial Constitutionality of Statutes Authorizing Costs

      The State contends that Appellant did not preserve his complaints

challenging the facial constitutionality of the statutes authorizing the imposition of

the respective costs; however, in light of recent cases of the Texas Court of

Criminal Appeals stating that an appellant can raise complaints about costs for

the first time on appeal when they are not imposed in open court, including

complaints about the constitutionality of the statutes authorizing those costs, we




§ 22.021(a)(1)(B), (2)(B), (e) (West Supp. 2016) (providing that aggravated
sexual assault of a child under fourteen years of age is a first-degree felony).


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shall address Appellant’s two points challenging the facial constitutionality of the

statutes authorizing the costs.3

      In his first point, Appellant contends that article 102.020(a)(1) of the code

of criminal procedure, which authorized $250 in costs related to DNA testing

assessed against him,4 is facially unconstitutional. As Appellant recognizes, the

Texas Court of Criminal Appeals has already expressly rejected the “necessary

or incidental” standard upon which his argument is based and has directly upheld

the constitutionality of that very statute.5 We are bound by the precedent of the

Texas Court of Criminal Appeals and therefore decline Appellant’s implicit
      3
        See London v. State, 490 S.W.3d 503, at 507–10 (Tex. Crim. App. 2016);
Johnson v. State, 423 S.W.3d 385, 390–91 (Tex. Crim. App. 2014); Machado v.
State, No. 02-15-00425-CR, 2016 WL 3960587, at *4 (Tex. App.—Fort Worth
July 21, 2016, pet. filed) (mem. op., not designated for publication) (addressing
issues despite State’s preservation arguments); Barefield v. State, No. 02-14-
00336-CR, 2016 WL 551890, at *1 & n.2 (Tex. App.—Fort Worth Feb. 11, 2016,
pet. ref’d) (mem. op., not designated for publication) (same). But see Waddell v.
State, No. 02-14-00372-CR, 2015 WL 7820272, at *1–2 (Tex. App.—Fort Worth
Dec. 3, 2015) (mem. op., not designated for publication) (overruling unpreserved
constitutional complaints about statutes authorizing costs as forfeited), rev’d, No.
PD-0014-16, 2016 WL 3625514, at *1 (Tex. Crim. App. June 29, 2016) (not
designated for publication); see also Amie v. State, Nos. 02-15-00385-CR, 02-
15-00386-CR, 2016 WL 741987, at *1 (Tex. App.—Fort Worth Feb. 25, 2016,
pet. filed) (mem. op., not designated for publication) (overruling Amie’s
unpreserved constitutional complaint about section 133.102 of local government
code as forfeited); Davis v. State, No. 02-15-00163-CR, 2015 WL 5770516, at *4
(Tex. App.—Fort Worth Oct. 1, 2015, pet. filed) (mem. op., not designated for
publication (same)).
      4
          See Tex. Code Crim. Proc. Ann. art. 102.020(a)(1) (West Supp. 2016).
      5
        See Peraza v. State, 467 S.W.3d 508, 510, 521 (Tex. Crim. App. 2015),
cert. denied, 136 S. Ct. 1188 (2016); Machado, 2016 WL 3960587, at *4 (relying
on Peraza in addressing and overruling point raising same complaint); Barefield,
2016 WL 551890, at *1 & n.2 (same).


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invitation to revive the “necessary or incidental” standard or to revisit the issue of

the facial constitutionality of this statute.6 We overrule Appellant’s first point.

      In his second point, Appellant similarly contends that article 102.0186 of

the code of criminal procedure, which authorized the assessment of the $100 in

county child abuse prevention fund costs against him,7 is facially unconstitutional.

Appellant relies solely on the “necessary or incidental” standard rejected by the

Texas Court of Criminal Appeals in Peraza.8 We therefore likewise overrule his

second point.9

Affirmative “No Objection” to PSI

      In his third point, Appellant contends that the trial court erred by admitting

the PSI, violating his rights under the Confrontation Clause. Appellant did not

object to the trial court’s consideration of the PSI and in fact stated that he had

no objection to the trial court’s admitting the PSI. By affirming the trial court’s

consideration of the PSI at trial, Appellant forfeited his right to complain on




      6
       See Machado, 2016 WL 3960587, at *4; Haas v. State, Nos. 02-11-
00316-CR, 02-11-00317-CR, 2013 WL 362758, at *2 (Tex. App.—Fort Worth
Jan. 31, 2013, pet. ref’d) (mem. op., not designated for publication); Hailey v.
State, 413 S.W.3d 457, 489 (Tex. App.—Fort Worth 2012, pet. ref’d).
      7
          See Tex. Code Crim. Proc. Ann. art. 102.0186 (West Supp. 2016).
      8
          See Peraza, 467 S.W.3d at 517.
      9
          See id.; Machado, 2016 WL 3960587, at *4.


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appeal of the denial of confrontation that accompanied the PSI’s admission.10

We therefore overrule Appellant’s third point.

Conclusion

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 26, 2016




      10
        See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005)
(discussing “affirmative acceptance” rule of error preservation); Sell v. State,
488 S.W.3d 397, 401 (Tex. App.—Fort Worth 2016, pet. ref’d) (Dauphinot, J.,
concurring) (relying on Swain to conclude that Sell forfeited his right to complain
on appeal of the denial of his right to confrontation).


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