Affirmed as Reformed and Opinion filed August 25, 2015.




                                       In The

                      Fourteenth Court of Appeals

                               NO. 14-14-00475-CR

                        WILLIAM JOHNSON, Appellant
                                         V.

                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 184th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1395867


                                OPINION
      Appellant William Johnson challenges his conviction for aggravated robbery
with a deadly weapon and the trial court’s assessment of court costs against him.
Appellant asserts the trial court violated his right to a neutral judge by questioning
him about the plea offer he rejected.       Appellant also challenges Texas Local
Government Code section 133.102 as violating the Texas Constitution. And, both the
State and appellant claim the judgment contains errors. We modify the judgment to
correct errors, but we overrule appellant’s other issues and affirm the judgment as
modified.
                    I.   FACTUAL AND PROCEDURAL BACKGROUND
      After being charged with aggravated robbery using or exhibiting a deadly
weapon, appellant pleaded “guilty” without any agreed recommendation. Before
appellant entered his plea, the trial court questioned him regarding his competency
and asked if he understood the impact of his action. In particular, the trial court
queried whether appellant understood the plea bargain offered by the State and the
potential range of punishment the trial court could impose. The trial court stated it
would determine the sentence after reviewing a pre-sentence investigation report
considering evidence. After articulating an understanding of the consequences of his
plea, appellant pleaded “guilty,” and the trial court accepted the plea. The trial court
later sentenced appellant to eight years’ confinement and assessed court costs.
                                    II.   ANALYSIS
            A. Alleged Interference in Plea Negotiations
      Appellant asserts the trial court violated his right to have his punishment
assessed by an impartial judge because the trial court became biased through
interference in plea negotiations. According to appellant, the interference caused the
trial court to become an advocate for the plea agreement. Appellant argues that if the
trial court advocates for a plea agreement, the trial court’s advocacy can give the
court “a personal stake” in the agreement. Appellant suggests that by interfering, the
trial court became biased and could not be neutral and detached in assessing
punishment. Appellant also asserts a trial court’s interference in plea negotiations is
coercive.
      We presume, without deciding, appellant’s argument is preserved for appellate
review. Plea bargains are a crucial aspect of the Texas justice system and it is
improper for a trial judge to participate or become otherwise involved in the process
by which plea bargains are formed. See Moore v. State, 295 S.W.3d 329, 331—32



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(Tex. Crim. App. 2009); Ex parte Shuflin, 528 S.W.2d 610, 617 (Tex. Crim. App.
1975). Plea bargaining is

      the process where a defendant who is accused of a particular criminal
      offense, and his attorney, if he has one, and the prosecutor enter into an
      agreement which provides that the trial on that particular charge not
      occur or that it will be disposed of pursuant to the agreement between
      the parties, subject to the approval of the trial judge.
Perkins v. Court of Appeals for Third Supreme Judicial Dist. of Tex., 738 S.W.2d
276, 282 (Tex. Crim. App. 1987).
      The record reveals that before appellant pled “guilty,” the trial court questioned
appellant regarding plea negotiations:

      [The Court]: Did I understand there is no plea bargain?
      [Appellant’s counsel]: That’s correct, Your Honor.
      [The Court]: I do recall there was some discussion about whether or not
      the State might make him an offer on robbery. Did they ever do that?
      [Appellant’s counsel]: We talked about it, Your Honor, but, as I
      explained to the prosecution earlier, is that based on the facts and the
      nature and his involvement, I thought deferred would have been most
      appropriate thing to do. And so --
      [The Court]: Right. I just want the record to reflect that he turned that
      down. Did he turn that down?
      [Appellant’s counsel]: He did. Yes, Your Honor.
      [The Court]: Is that right, they offered you something on robbery? Did
      you give him a number of years on robbery? Did you get that --
      [Appellant’s counsel]: Two years, Your Honor.
      [The Court]: Two years?
      [Appellant’s counsel]: Did I misrepresent?
      [Prosecutor]: No, I believe it was -- I believe when you talked with the
      chief, the discussion was two years.
      [The Court]: Ok[ay]. On a reduced charge of robbery. Am I correct in
      thinking you do not want that? Is that right? I just want the record to

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      reflect that. Is that right?
      [Appellant]: Yes, ma’am.
      [The Court]: Ok[ay]. There is no plea bargain.
      Appellant argues that the trial court’s specific questions regarding the length of
time the State offered as a recommended sentence constituted interference in plea
negotiations. The record reveals that at the time of the trial court’s questioning, plea
negotiations already had ended and appellant already had rejected the plea bargain.
The trial court did not suggest that appellant should reconsider his rejection and
attempt to engage the State in further plea negotiations. Rather, the trial court simply
clarified for the record that appellant was aware of the specifics of the plea bargain
offered by the State and that he had turned it down. See Tex. Code Crim. Proc. Ann.
art. 26.13(a)(2) (West, Westlaw through 2013 3d C.S.) (requiring trial-court inquiry
into the existence of a plea bargain agreement before accepting a “guilty” plea). The
trial court explained that the purpose of the query was to ensure the record reflected
appellant understood the consequences of pleading “guilty” without a plea bargain.
      The record shows that the trial court was not involved in plea negotiations and,
therefore, did not develop any sort of personal stake in the negotiations that would
affect the trial court’s impartiality. See Garcia v. State, 75 S.W.3d 493, 499 (Tex.
App.—San Antonio 2002, pet. ref’d) (noting that lengthy admonishments by the trial
court do not mean that the trial court is involved in plea negotiations). The trial court
did not interfere in plea negotiations. See Perkins, 738 S.W.2d at 282; Garcia, 75
S.W.3d at 499.      Because the trial court did not interfere in plea negotiations,
appellant’s arguments are without merit. See id. Accordingly, appellant’s first issue
is overruled.
          B. Comprehensive Rehabilitation Fee
      Section 133.102 of the Texas Local Government Code governs consolidated
fees on conviction. See Tex. Loc. Gov’t Code Ann. § 133.102 (West, Westlaw

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through 2013 3d C.S.). In his second issue, appellant asserts the court costs assessed
under this statute violate the Texas Constitution. The bill of costs was issued the
same day as the judgment. Appellant did not challenge the assessment of costs in the
trial court through a motion for new trial or any other vehicle.
      On appeal, appellant asserts section 133.102 violates the Texas Constitution
because it authorizes the trial court to collect, as court costs, money that is used for
comprehensive rehabilitation. Id. § 133.012 (e)(6). Appellant argues that using court
costs to fund rehabilitation efforts violates the separation of powers because it
requires the courts to collect funds that are unrelated to court functions.      See Tex.
Const. art. II, § 1 (West, Westlaw through 2013 3d C.S.).               Appellant asserts
rehabilitation is within the province of the executive branch.
      To prevail on appeal, appellant was required to preserve error in the trial court
on his facial challenge to the constitutionality of the statute, because his right to a
facial challenge of the statute is a right that can be forfeited if it is not raised in the
trial court. See Tex. R. App. P. 33.1(a); Karenev v. State, 281 S.W.3d 428, 434 (Tex.
Crim. App. 2009). To the extent appellant’s issue can be construed as an as-applied
challenge, appellant was similarly required to raise the challenge in the trial court.
See Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995). The requirement
that appellant preserve error in the trial court on constitutional challenges applies to
challenges brought under the Texas Constitution.          See Heidelberg v. State, 144
S.W.3d 535, 537–38 (Tex. Crim. App. 2004); Curry, 910 S.W.2d at 496.
      Appellant relies on the Court of Criminal Appeals’s holdings in Johnson v.
State and Cardenas v. State in asserting he was not required to preserve error in the
trial court regarding his constitutional challenge to the court costs assessed against
him. See Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014); Cardenas v.
State, 423 S.W.3d 396 (Tex. Crim. App. 2014). In Johnson and Cardenas, the Court
of Criminal Appeals addressed instances in which defendants sought review of court

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costs assessed against them after the judgment of conviction was entered on the
grounds that the record did not support any basis for imposing court costs against the
defendants. See Johnson, 423 S.W.3d at 388; Cardenas, 423 S.W.3d at 398. Noting
that the review was similar to a legal-sufficiency review, and that most defendants
would not have an opportunity to object to baseless court costs in the trial court, the
Court of Criminal Appeals held in Johnson that Johnson was not required to object at
trial to raise a claim challenging the bases of assessed costs on appeal. See Johnson,
423 S.W.3d at 390–91.         In Cardenas, the Court of Criminal Appeals rejected
Cardenas’s argument that supplementing the clerk’s record with a bill of costs
violated his right to due process of law, in part, because Cardenas was able to
challenge the basis of the costs for the first time on appeal. Cardenas, 423 S.W.3d at
399. In neither of these cases does the high court hold that a defendant who had an
opportunity to present a challenge to the constitutionality of a statute imposing court
costs in the trial court may raise his constitutional challenge for the first time on
appeal. Because neither Johnson nor Cardenas provides appellant with an exception
to the requirement that he preserve his facial constitutional challenge in the trial
court, we conclude that appellant failed to preserve error for appellate review. See
Karenev, 281 S.W.3d at 434; Heidelberg, 144 S.W.3d at 537–38; Curry, 910 S.W.2d
at 496. And, because appellant failed to preserve error, his second issue is overruled.
         Errors in the Judgment
      In his third issue, appellant asserts that the judgment contains two errors. The
State concedes both errors.
             1. Level of Offense
      Appellant pled “guilty” to aggravated robbery with the use or exhibition of a
deadly weapon, a first-degree felony.     See Tex. Penal Code Ann. § 29.03 (West,
Westlaw through 2013 3d C.S.). The admonishments appellant signed in conjunction
with his “guilty” plea reflect that the offense is a first-degree felony. The judgment

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reflects appellant was convicted of the offense of aggravated robbery with a deadly
weapon, but it lists the degree of the offense as a state-jail felony. Appellant requests
that we reform the judgment to reflect conviction for a first-degree felony rather than
a state-jail felony. The State agrees that we should grant this relief.
          The trial court erred in rendering judgment against appellant for a state-jail
felony. We therefore modify the judgment to reflect appellant’s conviction for a first-
degree felony. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992);
Musgrove v. State, 425 S.W.3d 601, 612 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d) (modifying judgment to reflect correct offense level).
                2. Right to Appeal
          Appellant asserts that the trial court erred in its written judgment by stating that
he had no right to appeal.          The written judgment says appellant was convicted
pursuant to a plea bargain and has no right to appeal. At the hearing on appellant’s
guilty plea, however, the trial court stated that because there was no plea bargain,
appellant had the right to appeal. The record reflects there was no plea bargain in this
case.
          A defendant’s sentence must be pronounced orally in his presence. Taylor v.
State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The judgment, including the
sentence assessed, is the written declaration and embodiment of that oral
pronouncement. Id. When there is a conflict between the oral pronouncement of
sentence and the sentence in the written judgment, the oral pronouncement controls.
Id. Similarly, if the trial court’s oral pronouncement of whether a defendant has the
right to appeal conflicts with its written judgment, the oral pronouncement controls.
Grice v. State, 162 S.W.3d 641, 644–45 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d).
          The trial court’s special finding that appellant does not have the right to appeal
conflicts with the judge’s oral pronouncement that appellant had the right to appeal.

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Because the oral pronouncement is inconsistent with the written judgment, we modify
the written judgment to reflect the oral pronouncement that appellant has the right to
appeal. See id.


                                 III.    CONCLUSION
      Appellant does not prevail on his first issue. The trial court did not violate
appellant’s right to a neutral judge by its actions in connection with the plea
negotiations because the trial court did not interfere in the negotiations. Nor does
appellant prevail on the constitutional challenge presented in his second issue.
Appellant did not preserve error in the trial court on his claim that section 133.102
violates the Texas Constitution. Appellant, however, is entitled to relief on his third
issue because the judgment contains errors.           The judgment incorrectly reflects
appellant was convicted of a state-jail felony and that appellant has no right of appeal.
We modify the judgment to reflect appellant’s conviction for a first-degree felony and
to reflect appellant’s right to appeal.       We affirm the trial court’s judgment as
modified.




                                        /s/       Kem Thompson Frost
                                                  Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — TEX. R. APP. P. 47.2(b).




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