                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-19-00129-CR

JAMES HUEY HOGAN,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 52nd District Court
                             Coryell County, Texas
                            Trial Court No. 18-25086


                          MEMORANDUM OPINION


      In one issue, appellant, James Huey Hogan Jr., argues that articles 42.0199 and

42A.559(g) violate the non-delegation doctrine and, therefore, are unconstitutional. See

TEX. CODE CRIM. PROC. ANN. arts. 42.0199, 42A.559(g) (West 2018). We affirm.

                                   I.    BACKGROUND

      In a one-count indictment, appellant was charged with intentionally or knowingly

possessing a controlled substance in penalty group one less than one gram. See TEX.
HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017). After a trial to the jury, appellant

was found guilty, and the jury assessed punishment at two years’ incarceration in the

State Jail Division of the Texas Department of Criminal Justice. The trial court certified

appellant’s right to appeal, and this appeal followed.

                                II.      DILIGENT PARTICIPATION CREDITS

        In his sole issue on appeal, appellant contends that articles 42.0119 and 42A.599(g)

violate the Texas Constitution’s prohibition against non-delegation between the branches

of government.1          Specifically, appellant asserts that the aforementioned statutory

provisions give “the judiciary a voice in the determination whether a criminal defendant

is ‘presumptively entitled’ to diligent participation credits at the time of sentencing, and

potentially later if ever to be granted these ‘credits’ while serving a sentence in a state jail

facility.” In essence, appellant argues that an award of diligent participation credits is a

form of commutation of a defendant’s sentence, and clemency powers have historically

been exercised by the executive branch of government, not the judiciary. Appellant raises

facial constitutionality challenges to the aforementioned statutory provisions.




        1   Article 42.0199 of the Code of Criminal Procedure provides that: “If a person is convicted of a
state jail felony, the judge shall make a finding and enter the finding in the judgment of the case regarding
whether the person is presumptively entitled to diligent participation credit in accordance with Article
42A.559.” TEX. CODE CRIM. PROC. ANN. art. 42.0199 (West 2018). Article 42A.559(b) states that a defendant
confined in a state-jail-felony facility does not earn good conduct time for time served in the facility; rather,
under article 42A.559(g), a judge may, based on a report submitted by the Texas Department of Criminal
Justice, “credit against any time a defendant is required to serve in a state jail felony facility additional time
for each day the defendant actually served in the facility while diligently participating in an educational,
vocational, treatment, or work program.” See id. art. 42A.559(b), (g) (West 2018).

Hogan v. State                                                                                            Page 2
        Constitutional challenges to a statute are generally forfeited by a failure to object

at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see also Mendez

v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). A defendant may not raise a facial

challenge to the constitutionality of a statute for the first time on appeal. See Karenev v.

State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).

        In the trial court, appellant made no objection to the constitutionality of articles

42.0119 and 42A.599(g). However, relying on the Court of Criminal Appeals’s decision

in Landers v. State, appellant complains that he had no opportunity to object to the finding

regarding diligent participation credits because the finding was not imposed in open

court. See 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).2 We disagree.

        Following the jury’s verdict on punishment, the trial court informed appellant that

he would be sentenced in accordance with that verdict. The trial court then asked

appellant if he had any legal reason why the trial court should not sentence him in

accordance with the jury’s verdict. Appellant responded that he did not. At this point,

the trial court noted that the court clerk needed assistance with the judgment. After a

brief pause off the record, the trial court stated the following:

        THE COURT:               Back on the record. Court just addressed some
                                 questions the court clerk had in preparing the



        2  In Landers v. State, the Court of Criminal Appeals held that “appellant may not be faulted for
failing to object [to the imposition of court costs] when she was not given the opportunity. 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.” 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).

Hogan v. State                                                                                        Page 3
                           judgment, which I believe is going to be prepared in
                           just a moment.

The trial judge proceeded to discuss appellant’s right of appeal and appointment of

counsel on appeal.

       At the conclusion of the proceedings, the trial judge noted:

       THE COURT:          All right. And I believe we have the judgment
                           prepared as well. Judgment is—have the credit on the
                           state jail. This concludes this matter for purposes of
                           the record other than entering the judgment. We’re off
                           the record.



       The first page of the judgment, entered on March 26, 2019, included a statement as

follows: “(For state jail felony offenses only) Is Defendant presumptively entitled to

diligent participation credit in accordance with Article 42A.559, Tex. Code Crim. Proc.?”

Following this question was the designation, “N/A.” The second page of the March 26,

2019 judgment further indicated that “DEFENDANT DOES NOT QUALIFY FOR

DELIGIENT [sic] PARTISIPATION [sic].”          Appellant’s fingerprint appears on the

judgment. Thereafter, the trial court entered two nunc pro tunc judgments correcting

and clarifying, but not substantively changing, the diligent-participation finding.

       Unlike Landers, this is not the case where costs or some other form of punishment

were imposed days after the judgment was signed so that appellant did not have an

opportunity to object. See 402 S.W.3d at 255. As shown above, the March 26, 2019

judgment, including the finding regarding diligent participation credits, was drafted in


Hogan v. State                                                                        Page 4
appellant’s presence.    This is demonstrated by the trial court’s statement, at the

punishment hearing, that appellant was getting “credit on the state jail” and the fact that

appellant’s fingerprint was on the March 26, 2019 judgment. Appellant’s fingerprint on

the judgment is particularly noteworthy because it demonstrates that the March 26, 2019

judgment, which first addressed diligent participation credits, was completed in open

court, not days later. Therefore, contrary to his assertions, appellant had an opportunity

to lodge an objection to the finding on diligent participation credits, yet did not do so.

See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016) (“A party satisfies the

requirement of a timely trial-level complaint ‘if the party makes the complaint as soon as

the grounds for it become apparent[.]’” (quoting Gillenwaters v. State, 205 S.W.3d 534, 537

(Tex. Crim. App. 2006))).

       And even if it could be said that appellant did not have the opportunity to raise

this challenge in open court, the record reflects that appellant did not file a motion for

new trial in this case. See Burt v. State, 396 S.W.3d 574, 577-78 & n.4 (Tex. Crim. App.

2013) (“This Court has held that an appellant may raise a sentencing issue in a motion for

new trial for the first time only if the appellant did not have the opportunity to object in

the punishment hearing.”). Because appellant did not raise his constitutional challenges

to articles 42.0199 and 42A.559(g) in the trial court when he had an opportunity to do so,

we cannot say that he preserved this issue for appellate review. See Karenev, 281 S.W.3d




Hogan v. State                                                                        Page 5
at 434; Mendez, 138 S.W.3d at 342; Curry, 910 S.W.2d at 496 & n.2. Accordingly, we

overrule his sole issue on appeal.

                                     III.   CONCLUSION

       We affirm the judgment of the trial court.




                                                JOHN E. NEILL
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed February 26, 2020
Do not publish
[CR25]




Hogan v. State                                                              Page 6
