         IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                              NO. PD-0527-18



                   JAMES ALLAN BURG, II, Appellant

                                       v.

                           THE STATE OF TEXAS

   ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
           FROM THE NINTH COURT OF APPEALS
                  MONTGOMERY COUNTY

      N EWELL, J., delivered the opinion of the Court in which
H ERVEY, R ICHARDSON, K EEL, W ALKER and S LAUGHTER, J J., joined.
K EASLER, J., filed a concurring opinion in which K ELLER, P.J., and
Y EARY JJ., joined.

     Appellant, James Allan Burg, II, was charged with, and convicted of,

driving while intoxicated with a BAC of 0.15 or more. 1          During the

sentencing hearing, the trial court ordered that Appellant’s driver’s license

be suspended for one year. Appellant did not object despite having the



     1
         TEX . PENAL CODE § 49.04(a), (d) (West 2014).
                                                               Burg — 2

opportunity to do so. Appellant argued for the first time on appeal that

this suspension was not authorized and therefore he could bring his claim

as an illegal sentence.   So, the question before us is this: Can an

appellant complain for the first time on appeal about an unauthorized

driver’s license suspension if he did not object to the imposition of the

suspension in the first place?     No.    A license suspension is not

“punishment” in a case, just as court costs aren’t. Therefore, even an

unauthorized license suspension cannot be characterized as an “illegal

sentence.” Under these circumstances we follow ordinary preservation

of error requirements. Because Appellant had the opportunity to object

and did not do so, he has not preserved his appellate claim for review.

We affirm.

                          Background Facts

     DPS Trooper Matthew Cline stopped Appellant late one night on I-45

for failing to dim his high-beam lights for oncoming traffic.       Cline

suspected Appellant had been drinking, conducted field sobriety tests,

and arrested him for driving while intoxicated.    Appellant refused to

provide a blood sample. As a result, Cline gave Appellant notice of the
                                                                        Burg — 3

      180-day ALR suspension,2 took physical possession of his driver’s

license, and issued him a temporary driving permit.3

      Cline obtained a warrant for Appellant’s blood. The BAC test

revealed Appellant had an alcohol concentration of 0.212.                On this

evidence a jury convicted Appellant of driving while intoxicated, a Class

A misdemeanor in this case given the proof of an alcohol concentration

level of 0.15 or more.4         The jury assessed punishment at one year

confinement      in   the    Montgomery    County    Jail,   but   recommended

community supervision.          The trial court placed Appellant on eighteen

months’ community supervision, with a license suspension:

      [STATE]:              Any driver’s license suspension?

      THE COURT:            Yes. We’re going have to have a
                            suspension.

      [DEFENSE]:            Run concurrent with the ALR suspension.

      THE COURT:            It will, to run concurrent with the ALR
                            suspension. Let’s do the driver’s license
                            suspension for one year.



      2
       This is the administrative driver’s license suspension triggered by a
person’s refusal of a peace officer’s request to submit to the taking of a
specimen. TEX . TRANSP. CODE § 724.035 (West 2013).
      3
          TEX . TRANSP. CODE §§ 724.032–.035 (West 2013).
      4
          TEX . PENAL CODE § 49.04(d) (West 2014).
                                                                      Burg — 4

      [DEFENSE]:         One year driver’s license suspension?

      THE COURT:         Yes, sir.

      The trial court formally sentenced Appellant, mentioning, and

memorializing in the judgment, the one-year jail term suspended for

eighteen months, a $1,500 fine, court costs of $402.10, and the one-year

driver’s license suspension to “run concurrent with the ALR suspension,

if any.”

      The conditions of community supervision include two requirements

mandated by Article 42.12 § 13, as it relates to a first-time offender like

Appellant, whose BAC was 0.15 or more: participation in a DWI education

program and use of an “ignition interlock device” while driving.5 Unlike

the judgment, the conditions do not include the driver’s license

suspension.

      On direct appeal, Appellant acknowledged the general rule that a

person convicted of DWI is subject to an automatic driver’s license

suspension.6 But, he said, a license suspension cannot be imposed when,


      5
       TEX . CODE CRIM . PROC . 42.12 § 13 (h), (i) (West 2014). Paragraph 21
orders Appellant to successfully complete, on time, the education program;
Paragraph 28 orders Appellant to install an ignition interlock device in his
vehicle, and prohibits him from operating any vehicle that is not equipped
with a device.
      6
          TEX . TRANSP. CODE §§ 521.341(3), 521.344(a) (West 2013).
                                                                Burg — 5

as here, a first-time DWI offender is placed on community supervision

and ordered to complete a DWI education program.7 Appellant argued

that the trial court was without authority to restrict his operating

privileges outside of the mandatory suspension scheme imposed by the

Code.

     In doing so, he likened his case to that of Love v. State.8 In that

case, the Austin Court of Appeals held that the “comprehensive and

exclusive statutory scheme for treatment of first-time DWI offenders”

supported the conclusion that a trial court could not suspend the license

of a first-time DWI offender placed on probation and ordered to complete

a DWI education program.9        Thus, argued Appellant, the trial court’s

judgment suspending his license lacked statutory authority.

     Because Appellant relied on Love—where the suspension was a

condition of probation—the State understood Appellant to be complaining

about a condition of probation. Citing Speth v. State, the State argued

that Appellant’s failure to object to the license-suspension condition at




     7
         TEX . TRANSP. CODE § 521.344(d) (West 2013).
     8
         702 S.W.2d 319 (Tex. App.—Austin 1986, no pet.).
     9
         Id. at 321.
                                                                      Burg — 6

trial meant that he failed to preserve his complaint for review.10

      Appellant, in a reply brief, argued that the State misunderstood his

argument because the license suspension here was part of the sentence

rather than a condition of community supervision. “Here, the trial court

went outside the range of punishment established by the Legislature in

section 521.344 of the Texas Transportation Code.” 11 And, the issue of

whether the trial court levied an unauthorized sentence is not subject to

forfeiture by failing to object in the trial court.12

      Even so, the court of appeals characterized the issue as whether

“the trial court erred by imposing a one-year driver's license suspension

as a condition of his community supervision.” 13           The court held the

complaint was barred on appeal under Speth because Appellant had an

opportunity to object to the “alleged condition” and did not.14


      10
           Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999).
      11
           Appellant’s Reply Br. 5.
      12
           Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014).
      13
      Burg v. State, 09-16-00200-CR, 2018 WL 1747393, at *7 (Tex.
App.—Beaumont Apr. 11, 2018).
      14
         Id. Appellant filed a motion for rehearing, again, clarifying that his
argument was that the trial court went outside the “legislatively mandated
penalties” when suspending his license. “The trial court was not legally
authorized to suspend Burg’s driver’s license, and such an error may be
raised for the first time on appeal.” Appellant’s Mot. for Reh’g 3.
                                                                   Burg — 7

      We granted review to settle this preservation issue. The State now

agrees with Appellant that the license suspension was not a condition of

community supervision, but disagrees that it was part of the sentence.

Rather, the State argues, the suspension was a “collateral consequence”

of conviction. And the complaint about whether or not it was authorized

was forfeited by Appellant’s failure to object.

      As discussed below, we agree with the State that the trial court's

suspension is not a part of the sentence, at least not a part of the

sentence that can render a sentence "illegal"—because it is not

punishment.       Even if we assume that the trial court's imposition of a

license suspension was unauthorized, it did not render the sentence

"illegal."

                                  Preservation

      Rule 33.1 provides that a contemporaneous objection must be made

to preserve error for appeal.15          Rule 33.1 applies to category-three

“forfeitable” Marin rights and requirements.16         It does not apply to

category-one “absolute” or category-two “waivable-only” Marin rights and

requirements—ones that are fundamental to the proper functioning of our

      15
           TEX . R. APP. PROC . 33.1(a) (West 2014).
      16
           Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993).
                                                                        Burg — 8

adjudicatory system.17 But not all rights and requirements fit neatly into

one of Marin’s three categories.18 If what looks at first glance to be a

forfeitable right or requirement cannot actually be affirmatively insisted

upon by a party,19 or acted on by a trial court,20 that right or requirement

cannot logically be subject to the general rule.

      We have already held in Mizell v. State that the right to be

sentenced      legally   is   an   absolute   or   waivable-only   right.21   The

contemporaneous-objection requirement does not bar review of a claim

that a sentence that is illegal due to the fact that it is outside the

maximum or minimum range of punishment.22 So we must determine

whether the license suspension provision in this case qualifies as an illegal

sentence.




      17
           Grado v. State, 445 S.W.3d 736, 738–39 (Tex. Crim. App. 2014).
      18
         See, e.g., Proenza v. State, 541 S.W.3d 786, 801 (Tex. Crim. App.
2018) (holding that no objection was necessary to preserve error without
deciding whether right at issue fell within Marin's first or second category of
rights); id. at 805 (Newell, J., concurring).
      19
           London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
      20
        Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014)
(deciding preservation issue without regard to any Marin classification).
      21
           Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
      22
           Id. at 806–07.
                                                                      Burg — 9

                                  Application

      As     the   parties   recognize,   the   inquiry   about   whether   the

contemporaneous-objection requirement applies should start with

determining the nature of the right at issue. To Appellant, it is the right

to be sentenced legally—an absolute or waivable-only right.23 To the

State, it is the right to be free of an unauthorized collateral consequence

of a criminal conviction—a forfeitable right.             The State likens the

suspension to restitution and argues that, “If Rule 33.1 applies to an

erroneous restitution order, it should also apply to an erroneous license

suspension order.” 24

      The right at stake here does not fit neatly into one of Marin’s three

categories, particularly because there does not appear to be any “right”

at issue. Appellant does not have any right to be free from a license

suspension given that the act of driving is a privilege not a right.25 In




      23
           Id. at 806.
      24
          State’s Br. 13. (citing Idowu v. State, 73 S.W.3d 918, 921–22 (Tex.
Crim. App. 2002) (“If a defendant wishes to complain about the
appropriateness of (as opposed to the factual basis for) a trial court's
restitution order, he must do so in the trial court, and he must do so
explicitly.”)).
      25
           Schwantz v. Tex. Dept. of Public Safety, 415 S.W.2d 12, 15 (Tex.
1967).
                                                                      Burg — 10

that regard, Appellant’s claim in this case is similar to a claim regarding

improper court costs where preservation of error turns simply on

whether there was any opportunity to object.26                  Further, license

suspensions upon conviction are not a “punishment” that is required in

a judgment as part of a sentence.          An unauthorized suspension falls

outside of what can be considered an “illegal sentence.”

     Texas Penal Code Section 12.01 addresses punishment generally

and provides that a person “adjudged guilty of an offense under the code

shall be punished in accordance with this chapter and the Code of

Criminal Procedure.”27       Appellant here was convicted of a Class A

misdemeanor.        Section 12.21 provides that an “individual adjudged

guilty of a Class A misdemeanor shall be punished by: (1) a fine not to

exceed $4,000; (2) confinement in jail for a term not to exceed one

year; or (3) both such fine and confinement.”28 And of course such a jail

term may be probated.29 Appellant’s one-year jail term suspended for

eighteen months and $1500 fine is punishment “in accordance” with


     26
          Johnson, 423 S.W.3d at 390.
     27
          TEX . PENAL CODE § 12.01(a) (West 2014).
     28
          TEX . PENAL CODE § 12.21 (West 2014).
     29
          See TEX . CODE CRIM . PRO . art. 42.12 (West 2014).
                                                                 Burg — 11

Chapter 12 and the Code of Criminal Procedure.

     But Section 12.01 also provides that the punishment provisions of

the Penal Code do “not deprive a court of authority conferred by law . .

. to suspend . . . a license or permit . . . or impose any other civil

penalty.     The civil penalty may be included in the sentence.” 30

Appellant’s argument is that the license suspension here was “included

in   the     sentence.”    Therefore,     according   to   Appellant,   the

contemporaneous-objection requirement doesn’t bar review of his

complaint that it is outside the range of punishment for the crime of

conviction.31

     A “sentence” is defined in the Texas Code of Criminal Procedure as

“that part of the judgment . . . that orders that the punishment be

carried into execution in the manner prescribed by law.” 32      The most

current version of Article 42.01 lists twenty-nine things that “shall” be

reflected and another eleven that “should” be reflected in the judgment.



     30
          TEX . PENAL CODE §12.01(c) (West 2014).
     31
          Mizell, 119 S.W.3d at 806–07.
     32
         TEX . CODE CRIM . PROC . § 42.02 (West 2014); Ex parte Pue, 552
S.W.3d 226, 238 (Tex. Crim. App. 2018) (“Mizell simply held that a sentence
that is outside the range of punishment is illegal and may be challenged for
the first time on appeal or habeas.”).
                                                                 Burg — 12

Nowhere does Article 42.01 list license suspensions as something that

must be reflected in the judgment.

     For purposes of our “illegal sentence” jurisprudence we have said

that a sentence “consists of the facts of the punishment itself, including

the date of commencement of the sentence, its duration, and the

concurrent or cumulative nature of the term of confinement and the

amount of the fine, if any.”33 As we explained in State v. Ross:

     The plain language [of Article 42.02] . . . indicates that a
     sentence is nothing more than the portion of the judgment
     setting out the terms of punishment. For example, the
     sentence in this case would include the facts that appellant is
     to serve sixteen years in the penitentiary beginning July 28,
     1995, that his term is concurrent and that he must pay a
     $500 fine. It would not incorporate, as the State would have
     it, those aspects of the judgment merely affecting those
     facts.34

This has been fleshed out in our illegal sentence cases. These things are

clearly “in” the closed curve of things that can make a “sentence” legal




     33
        State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004). See
also Black’s Law Dictionary (6th Abr. ed. 1983) (“The judgment . . .
imposing the punishment to be inflicted, usually in the form of a fine,
incarceration, or probation.”).
     34
          State v. Ross, 953 S.W.2d 748, 750 (Tex. Crim. App. 1997).
                                                                       Burg — 13

 or illegal: a term of years; 35 a fine; 36 the fact of shock or regular

probation;37 and enhancements.38 These things are “out”: restitution; 39

an   Article   37.07   election   for   the   jury   to   assess   punishment; 40

deadly-weapon findings;41 the terms of community supervision (including

restitution when it is a condition of probation);42 court costs;43 sex-

offender registration;44 and forfeiture of contraband.45



      35
      Id. See, e.g., TEX . PENAL CODE §§ 12.21–12.35 (setting out
misdemeanor and felony “punishment”).
      36
           Id.; Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009).
      37
        State v. Dunbar, 297 S.W.3d 777, 781 (Tex. Crim. App. 2009);
Smith v. State, 789 S.W.3d 590, 592 (Tex. Crim. App. 1990).
      38
       Donaldson v. State, 476 S.W.3d 433, 439–40 (Tex. Crim. App.
2015); State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004).
      39
       Burt v. State, 445 S.W.3d 752, 756 (Tex. Crim. App. 2014); Idowu,
73 S.W.3d at 921–22.
      40
           State v. Baize, 981 S.W.2d 204, 206 (Tex. Crim. App. 1998).
      41
           Ross, 953 S.W.2d at 751.
      42
        Speth, 6 S.W.3d at 532; Gutierrez-Rodriguez v. State, 444 S.W.3d
21, 24 (Tex. Crim. App. 2014).
      43
           Weir, 278 S.W.3d at 365.
      44
           Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004).
      45
        Fant v. State, 931 S.W.2d 299, 313–14 (Tex. Crim. App. 1996). But
see Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (Eighth Amendment's
Excessive Fines Clause is an incorporated protection applicable to the States
under the Fourteenth Amendment's Due Process Clause).
                                                                    Burg — 14

      But what about Texas Penal Code Section 12.01(c), saying a

suspension can be “included in the sentence”?           The things listed in

12.01(c) are by definition “civil penalties.” And civil penalties are not

punishment unless they’ve been historically regarded as punishment or

they promote the traditional aims of punishment such as retribution and

deterrence.46 License suspensions have not been so regarded.

      In Davison v. State, we held that counsel could not allude to the

automatic suspension of the accused's driver's license as a consequence

of conviction because that consequence was not part of the “punishment”

affixed to such offense.47 Suspensions, we agreed, “are not intended as

punishment but are designed solely for the protection of the public in the

use of the highways.”48 At that time, the code described punishment as



      46
          See Hudson v. United States, 522 U.S. 93, 99–100 (1997) (holding
that if the legislature has indicated an intention to create a civil penalty, a
court analyzing a double jeopardy claim must determine whether the
statutory scheme is nevertheless so punitive in purpose or effect as to
transform what was clearly intended as a civil remedy into a criminal
punishment; emphasizing that “only the clearest proof” will suffice to
override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty); Ex parte Sheridan, 974 S.W.2d 129, 134
(Tex. App.—San Antonio 1998, pet. ref'd) (concluding that Sheridan had not
shown by the “clearest proof” that the cancellation of his alcoholic beverage
license by the TABC was a criminal punishment).
      47
           313 S.W.2d 883, 886 (Tex. Crim. App. 1958) (op. on reh’g).
      48
           Id.
                                                                     Burg — 15

including “forfeiture of civil or political rights.”     Because the Texas

Supreme Court, in Gillaspie v. Department of Public Safety, had already

said that driving is a privilege and not a right, we noted that the

forfeiture of a license is the forfeiture of a privilege, rather than forfeiture

of a right.49 As such, it was not considered punishment.50

      Nor is it punishment now.51        The legislature has indicated an

intention to create a civil penalty, and this is not the kind of civil penalty

that is so punitive in purpose or effect as to transform what was clearly

intended as a civil remedy into a criminal punishment.52 As the United

States Supreme Court has noted, “Remedial sanctions may be of varying

types. One which is characteristically free of the punitive criminal


      49
        Id. (citing Gillaspie v. Dep't of Pub. Safety, 259 S.W.2d 177, 182
(Tex. 1953) (“Suspension of driver's license or registration is not the taking
of property. It deprives the operator or owner for a limited time and on
reasonable conditions of the privilege of driving or operating the motor
vehicle on the public highways.”)).
      50
           Davison, 313 S.W.2d at 887.
      51
         Grant v. State, 989 S.W.2d 428, 432 (Tex. App.—Houston [14th
Dist.] 1999, no pet.) (automatic suspension of a driver’s license under
Transportation Code Section 521.372, upon conviction for a drug offense,
was not part of the “punishment” for the drug offense of which the
defendant must be admonished in advance of his guilty plea).
      52
        Hudson, 522 U.S. at 104 (sanctions of monetary penalties and
occupational debarment of petitioners were intended by congress to be civil
sanctions, and they were not “so punitive in form and effect as to render
them criminal despite Congress' intent to the contrary”).
                                                                Burg — 16

element is revocation of a privilege voluntarily granted.” 53

     The bottom line is that a license suspension is not considered

punishment because it is not incarceration, probation, a fine, or an

enhancement, regardless of whether it is included in the so-called

sentence. So a complaint about it is not really a complaint about an

“illegal sentence.” Since Appellant’s complaint cannot be characterized

as a complaint about an illegal sentence, it does not fall under the Mizell

jurisprudence excepting “illegal sentence” claims from Rule 33.1.

                                 Conclusion

     Rule 33.1 requires a contemporaneous objection to preserve error

for appeal. Because Appellant had the opportunity to raise an objection

to the trial court’s order suspending his license, and did not take it, he

did not preserve this issue for appeal. Further, Appellant cannot rely

upon our “illegal sentence” jurisprudence to raise his claim for the first

time on appeal because the license suspension was not part of the

sentence. We affirm the court of appeals.


DELIVERED: January 29, 2020

PUBLISHED


     53
          Helvering v. Mitchell, 303 U.S. 391, 399 (1938).
