Opinion issued May 14, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00821-CR
                             NO. 01-13-00822-CR
                           ———————————
                    GREGORIO GUERRERO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 339th District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1172094 & 1172095


                         MEMORANDUM OPINION

      Appellant Gregorio Guerrero was charged by indictment with aggravated

robbery with a deadly weapon and evading arrest. He pleaded guilty, and the trial

court deferred his adjudication. Three years later, the State filed a motion to
adjudicate Guerrero’s guilt, alleging that he had violated his community

supervision conditions. After conducting a hearing on the State’s motion, the trial

court found the State’s allegations true and sentenced Guerrero to 20 years’

confinement for the aggravated robbery charge and two years’ confinement for the

evading arrest charge, with the sentences to run concurrently. In two issues,

Guerrero contends that the trial court erred in (1) unconstitutionally interfering

with plea negotiations, which violated his right to due process and to have the

proceeding adjudicated by a neutral and detached judge, and (2) assessing an

unconstitutional court cost against him because the “consolidated court cost”

authorized by Texas Local Government Code section 133.012(a)(1) violates the

Texas Constitution. We affirm. 1

                                    Background

      The State moved to adjudicate Guerrero’s guilt on his aggravated robbery

and evading arrest charges in March 2013. The trial court conducted a hearing on

the State’s motion. At the beginning of the hearing, the trial court asked Guerrero

whether he and the State had reached a plea bargain. The following exchange

occurred:


1
      Appellate cause number 01-13-00821-CR is the appeal from the conviction for
      aggravated robbery (trial court number 1172094), and appellate cause number 01-
      13-00822-CR is the appeal from the conviction for evading arrest (trial court cause
      number 1172095). We address all of Guerrero’s points of errors in both cases in
      this opinion.

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      THE COURT: Okay. All right. I remember the Court did offer you - - make
you give a recommendation or give you a recommended offer; is that correct?

      APPELLANT’S COUNSEL: That is correct.

      THE COURT: What was the offer?

      APPELLANT’S COUNSEL: Previous offer by the State was ten years.

       PROSECUTOR: That’s correct, Judge, on all three cases, both the
aggravated robbery prior, the evading arrest prior and the aggravated robbery that
is currently pending. And he’s turned all of that down.

      THE COURT: Okay. So do you understand that going forward, the State has
witnesses and this Court is going to hear all of the testimony. And you received
probation on a first degree felony aggravated robbery with a deadly weapon, which
the maximum amount you can receive is ninety-nine years, or life, in prison. You
understand that?

      THE DEFENDANT: Yes, ma’am.

      THE COURT: Okay. And is it your desire to reject the State’s offer of ten
years and go forward with the hearing?

      THE DEFENDANT: Yes, ma’am.

      Following that exchange, the State presented its evidence showing that

Guerrero violated his community supervision conditions. The trial court found all

of the State’s allegations true and sentenced Guerrero to 20 years’ confinement for

the aggravated robbery charge and two years’ confinement for the evading arrest

charge, with the sentences to run concurrently. That same day, on August 29,

2013, the trial court entered judgment and assessed $304 in court costs for the

aggravated robbery conviction and $334 in court costs for the evading arrest



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conviction. Approximately 20 days later, on September 19 and 20, the district

clerk issued a bill of cost for each conviction, which assessed $133 as a

“consolidated court cost.” Guerrero did not file a motion for new trial.

    Guerrero failed to preserve any complaint regarding plea negotiations

      In his first issue in appellate cause number 01-13-00821-CR, Guerrero

contends that the trial court violated his right to due process and to have his case

adjudicated by a neutral and detached judge because the trial court interjected itself

in the plea-bargaining process. The State contends that Guerrero failed to preserve

this issue. We agree with the State.

      Generally, to preserve a complaint for appellate review, a party must make a

timely and specific request, objection, or motion in the trial court and obtain an

adverse ruling from the trial court. TEX. R. APP. P. 33.1(a). Except for complaints

involving systemic requirements, or rights that are waivable only, all other

complaints, whether constitutional, statutory, or otherwise, are forfeited by failure

to comply with Rule 33.1(a). Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim.

App. 2004). The improper intrusion by a trial court into the plea-bargaining

process is not systemic error and may not be brought for the first time on appeal.

Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).

      We conclude that Guerrero failed to preserve his complaint that the trial

court unconstitutionally interfered with the plea-bargaining process.         At the



                                          4
beginning of the hearing, the trial court asked Guerrero whether he and the State

had reached a plea bargain. The trial court stated “I remember the Court did offer

you – make you give a recommendation or give you a recommended offer; is that

correct?” Although that statement is unclear, the record makes clear that the trial

court was referring to a plea offer made by the State. Guerrero’s trial counsel

stated that the “[p]revious offer by the State was ten years.” Additionally, when

the trial court asked Guerrero if he wished to reject the plea and continue with the

hearing, he answered “Yes, ma’am.” According to Guerrero, the trial court’s

reference to “the court’s offer” constituted an improper interjection in the plea-

bargaining process, which violated his right to due process and to have the

proceeding adjudicated by a neutral and detached judge.

      However, Guerrero did not complain to the trial court that the court

improperly interjected itself into the plea-bargaining process. Likewise, Guerrero

made no objection that the trial court’s comments and questions violated his due

process rights. Accordingly, we conclude that Guerrero failed to preserve any

complaint regarding the trial court interjecting itself into the plea-bargaining

process. See TEX. R. APP. P. 33.1(a); Anderson v. State, 301 S.W.3d 276, 280

(Tex. Crim. App. 2009) (“[O]ur prior decisions make clear that numerous

constitutional rights, including those that implicate a defendant’s due process

rights, may be forfeited for purposes of appellate review unless properly



                                         5
preserved.”); Moore, 295 S.W.3d at 333 (holding appellant failed to preserve issue

because he did not object to trial court’s allegedly improper intrusion into plea-

bargaining process).

       We overrule Guerrero’s first issue in appellate cause number 01-13-00821-

CR.

      Constitutionality of the “comprehensive rehabilitation” fund in Local
                        Government Code section 133.102

       In his second issue in appellate cause number 01-13-00821-CR and sole

issue in appellate cause number 01-13-00822-CR, Guerrero contends the

“comprehensive rehabilitation” fund authorized by Local Government Code

section 133.102 amounts to an unconstitutional tax because it “does not relate[]

back to the courts” and, therefore, collecting funds for the “comprehensive

rehabilitation” fund violates the separation of powers clause of the Texas

Constitution. See TEX. CONST. art. II, § 1.

A.     Standard of Review

       When reviewing a constitutional challenge, we presume that the statute is

valid and that the legislature was neither unreasonable nor arbitrary in enacting it.

State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Curry v. State, 186

S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also State ex.

rel. Lykos v. Fine, 330 S.W.3d 904, 908–09 (Tex. Crim. App. 2011). We must

uphold the statute if it can be “reasonably construed in a manner consistent with


                                          6
the legislative intent and is not repugnant to the Constitution.” Curry, 186 S.W.3d

at 42. When statutory authority exists to sustain a constitutional reading of a

statute, we favor that interpretation over any other. See id.; see also Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (en banc) (“Every

reasonable intendment and presumption will be made in favor of the

constitutionality and validity of a statute, until the contrary is clearly shown.”)

(citation omitted); Oakley v. State, 807 S.W.2d 378, 381 (Tex. App.—Houston

[14th Dist.] 1991) (“If a statute is capable of two constructions, one of which

sustains its validity, this court will uphold the interpretation that sustains its

validity.”), aff’d, 830 S.W.2d 107 (Tex. Crim. App. 1992).

      The party challenging the statute bears the burden of establishing the

statute’s unconstitutionality. Rosseau, 396 S.W.3d at 557. “A facial challenge to a

statute is the most difficult challenge to mount successfully because the challenger

must establish that no set of circumstances exists under which the statute will be

valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (en banc).

B.    Applicable Law

      Section 133.102(a)(1) of the Texas Local Government Code mandates that a

person convicted of a felony must pay $133 “as a court cost, in addition to all other

costs.” TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2014). The

collected amounts must be remitted to the state comptroller, who in turn must



                                         7
allocate this money to 14 specified “accounts and funds.” The statute provides that

9.8218 percent of the $133 cost is allocated to the “comprehensive rehabilitation”

fund. See id. § 133.102(e)(6) (West Supp. 2014). Subsection (e) provides that the

designated funds “may not receive less than” certain specified percentages of the

collected amounts. Id. Additionally, section 133.058 permits a municipality or

county to retain 10 percent of collected amounts as a “service fee.” Id.

§ 133.058(a) (West Supp. 2014).

C.    Analysis

      Guerrero contends that section 133.102 violates the separation of powers

clause of the Texas Constitution because it requires a convicted felon to pay the

cost of “comprehensive rehabilitation,” which is unrelated to any function of the

courts. Guerrero contends that he may raise his constitutional challenge to the

court cost for the first time on appeal. We agree with the State that Guerrero may

not assert his constitutional claim for the first time on appeal and he therefore

waived any constitutional challenge to Local Government Code section 133.102.

      Ordinarily, to preserve error, there must be a timely, specific objection and

an adverse ruling by the trial court. TEX. R. APP. P. 33.1; see Lozano v. State, 359

S.W.3d 790, 823 (Tex. App.—Fort Worth 2012, pet. ref’d) (“To be timely, an

objection must be made as soon as the basis for the objection becomes apparent.”).

Except for complaints involving systemic requirements, or rights that are waivable



                                         8
only, all other complaints, whether constitutional, statutory, or otherwise, are

forfeited by failure to comply with Rule 33.1(a). Mendez v. State, 138 S.W.3d 334,

342 (Tex. Crim. App. 2004).

       “Examples of rights that are waivable-only include the rights to the

assistance of counsel, the right to trial by jury, and a right of appointed counsel to

have ten days of trial preparation which a statute specifically made waivable-only.”

Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (en banc).

“Absolute systemic requirements [that may not be waived] include jurisdiction of

the person [and] the subject matter, and a penal statute’s being in compliance with

the Separations of Powers Section of the state constitution.” Id. Violation of these

non-waivable absolute systemic rights constitutes fundamental error. McLean v.

State, 312 S.W.3d 912, 916 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

      Here, we conclude that Guerrero forfeited his separation of powers argument

by failing to raise it in the trial court, because his challenge does not constitute a

denial of an absolute systemic requirement. Guerrero did not file a motion for new

trial or motion in arrest of judgment challenging the constitutionality of assessing a

cost to support the comprehensive rehabilitation fund. See Salinas v. State, 426

S.W.3d 318, 325–26 (Tex. App.—Houston [14th Dist.] 2014, pet. granted)

(analyzing constitutional challenge where appellant raised issue of constitutionality

of Local Government Code section 133.102 in motion for new trial and motion in



                                          9
arrest of judgment); Peraza v. State, -- S.W.3d --, Nos. 01-12-00690-CR & 01-12-

00691-CR, 2014 WL 7476214, at *1 (Tex. App.—Houston [1st Dist.] Dec. 30,

2014, pet. granted) (analyzing constitutional challenge to “DNA Record Fee”

where appellant filed motions for new trial and in arrest of judgment). Separation

of powers arguments must be preserved in the trial court. See, e.g., Russell v.

State, No. 02-11-00478-CR, 2013 WL 626983, at *2 (Tex. App.—Fort Worth Feb.

21, 2013, pet. ref’d) (mem. op., not designated for publication); Boone v. State, 60

S.W.3d 231, 236 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d), cert. denied,

537 U.S. 1006 (2002).

      An exception arises if the appellant raises a separation of powers challenge

to a penal statute for the first time on appeal. See Aldrich, 104 S.W.3d at 895.

Guerrero, however, does not challenge a penal statute. Rather, he contends that

Local Government Code section 133.102 violates the separation of powers clause

because it improperly allocates funds to the comprehensive rehabilitation fund,

which amounts to an unconstitutional tax. See id. (absolute systemic requirements

include penal statute’s compliance with separation of powers clause of Texas

Constitution).   Accordingly, we conclude that Guerrero failed to preserve his

separation of powers argument. See Gamble v. State, Nos. 02-13-00573-CR & 02-

13-00574-CR, 2015 WL 221108, at *4 (Tex. App.—Fort Worth Jan. 15, 2015, pet.

ref’d) (mem. op., not designated for publication) (appellant’s failure to preserve



                                        10
issue in trial court forfeited argument on appeal that his form of community

supervision violated separation of powers because he did not contend that a penal

code section violated separation of powers).

      In support of his position that he may raise his separation of powers

argument for the first time on appeal, Guerrero relies on Cardenas v. State, 423

S.W.3d 396 (Tex. Crim. App. 2014) and Johnson v. State, 423 S.W.3d 385 (Tex.

Crim. App. 2014), in which the Court of Criminal Appeals held that a defendant

may challenge the sufficiency of the evidence to support the assessment of court

costs for the first time on appeal. The Court of Criminal Appeals explained that

“[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, 423 S.W.3d at 399; see also Johnson,

423 S.W.3d at 391 (“Appellant need not have objected at trial to raise a claim

challenging the bases of assessed costs on appeal.”). These cases, however, did not

address the constitutionality of court costs, and, therefore, do not support

Guerrero’s contention that he may assert his constitutional claim for the first time

on appeal. Accordingly, we hold that Guerrero failed to preserve his constitutional

challenge to Local Government Code section 133.102’s allocation of funds to the

comprehensive rehabilitation fund. See Mendez, 138 S.W.3d at 342 (except for



                                        11
complaints    involving    systemic    requirements    and      non-waivable   rights,

constitutional complaints must be preserved in trial court).

      We overrule Guerrero’s second issue in appellate cause number 01-13-

00821-CR and sole issue in appellate cause number 01-13-00822-CR.

                                      Conclusion

      We affirm the judgments of the trial court.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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