                                                               PD-0665-15 & PD-0666-15
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                             Transmitted 7/14/2015 2:00:26 PM
                                                               Accepted 7/15/2015 4:35:31 PM
                                                                               ABEL ACOSTA
                       PD 0665-15 & 666-15                                             CLERK


            IN THE COURT OF CRIMINAL APPEALS

                           OF TEXAS
   _______________________________________________

                      GREGORIO GUERRERO,
                           Appellant,

                               v.

                 THE STATE OF TEXAS,
                       Appellee.
   _______________________________________________

        On Petition for Discretionary Review from the
        First Court of Appeals in Nos. 01-13-00821-CR
         and 01-13-00821-CR affirming the conviction
             in cause numbers 1172094 & 1172095,
     From the 339th District Court of Harris County, Texas
   _______________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
   _______________________________________________

ORAL ARGUMENT NOT REQUESTED                  ALEXANDER BUNIN
                                             Chief Public Defender
                                             Harris County, Texas

                                             JANI MASELLI WOOD
                                             Assistant Public Defender
                                             Harris County, Texas
                                             TBN. 00791195
                                             1201 Franklin Street, 13th Floor
                                             Houston, Texas 77002
      July 15, 2015                          Phone: (713) 368-0016
                                             Fax: (713) 368-9278
                                             Counsel for Appellant
                                             July 14, 2015
                IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                    Mr. Gregorio Guerrero
                              TDCJ# 01893089
                              Clemens Unit
                              11034 Hwy 36
                              Brazoria, TX 77422

TRIAL PROSECUTOR:             Mr. Joshua Phanco
APPELLATE PROSECUTOR          Ms. Carly Dessauer
                              Assistant District Attorney
                              Harris County, Texas
                              1201 Franklin, 6th Floor
                              Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:     Mr. Brian Middleton
                              7322 SW Fry #1980
                              Houston, Texas 77074

PRESIDING JUDGE:              Hon. Maria T. Jackson, Presiding Judge
                              339th District Court
                              Harris County, Texas
                              1201 Franklin, 14th floor
                              Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood
                          Assistant Public Defender
                          Harris County, Texas
                          1201 Franklin, 13th Floor
                          Houston, Texas 77002




                               -2-
                                         TABLE OF CONTENTS
                                                                                                                   PAGE

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

          The Court of Appeals determined that the constitutional challenge to
          the comprehensive rehabilitation court cost could not be raised for the
          first time on appeal. The basis for the challenge was not available to Mr.
          Guerrero until three weeks after the judgment was signed. Did the
          Court of Appeals err in refusing to consider a challenge that was only
          available post-trial, in derogation of Landers v. State?. . . . . . . . . . . . . . . . . . . 7

Reasons for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . 8
          The error was preserved based upon precedent from this Court.. . . . . . . . . 9
          No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . 10

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12



                                                             -3-
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                            -4-
                                          INDEX OF AUTHORITIES
                                                                                                              PAGE
Cases:

Cardenas v. State,
      423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Guerrero v. State,
       01-13-00821-CR, 01-13-00822-CR, 2015 WL 2266247
       (Tex. App.—Houston [1st Dist.] May 14, 2015, no. pet. h.). . . . . . . . . passim

Johnson v. State,
       423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Landers v. State,
      402 S.W.3d 252 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10



Statutes and Rules:

TEX. HUM. RES. CODE ANN. § 115.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. LOC. GOV'T CODE ANN. § 133.102(e)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                          -5-
                     STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is not requested.

                             STATEMENT OF THE CASES1

 No. 01-13-00821-CR
 Trial cause number 1172094

       This is an appeal from a conviction for aggravated robbery. (C.R. at 58). Mr.

 Guerrero pleaded guilty and received deferred adjudication in March 2010. (C.R. at

 33-36, 41). A motion to adjudicate was filed on March 12, 2013. (C.R. at 48). After

 hearing evidence, the trial court sentenced Mr. Guerrero to 20 years confinement in

 the Texas Department of Criminal Justice - Institutional Division. and a $10,000 fine.

 (C.R. at 58). Court costs were assessed on the judgment as $304. (C.R. at 58). An

 accompanying bill of costs lists court costs as $279.50. (C.R. at 60). Timely notice of

 appeal was filed. (C.R. at 62).

 No. 01-13-00822-CR
 Trial cause number 1172095

       This is an appeal from a conviction for evading arrest with a motor vehicle.

 (C.R. at 59). Mr. Guerrero pleaded guilty and received deferred adjudication in March

 2010. (C.R. at 35-37, 43). A motion to adjudicate was filed on March 12, 2013. (C.R.

 at 49). After hearing evidence, the trial court sentenced Mr. Guerrero to two years


  1
      Each record citation is for the specific case designated because two separate
records were prepared.
                                           -6-
confinement in the State Jail Division - Texas Department of Criminal Justice. (C.R.

at 59). An accompanying bill of costs lists court costs as $334.00. (C.R. at 61).

Timely notice of appeal was filed. (C.R. at 63).

                    STATEMENT OF THE PROCEDURAL HISTORY

      In an unpublished opinion, the First Court of Appeals affirmed Mr. Guerrero’s

convictions in one opinion. Guerrero v. State, 01-13-00821-CR, 01-13-00822-CR, 2015

WL 2266247(Tex. App.—Houston [1st Dist.] May 14, 2015, no. pet. h.). No motion

for rehearing was filed. After an extension of time, this petition is timely if filed on

or before July 15, 2015.

                               GROUND FOR REVIEW

      The Court of Appeals determined that the constitutional challenge to
      the comprehensive rehabilitation court cost could not be raised for the
      first time on appeal. The basis for the challenge was not available to Mr.
      Guerrero until three weeks after the judgment was signed. Did the
      Court of Appeals err in refusing to consider a challenge that was only
      available post-trial, in derogation of Landers v. State?

                               REASONS FOR REVIEW

      This exact issue has been granted in London v. State, PD 0480-15.

      The First Court of Appeals has decided an important question of state
      or federal law in a way that conflicts with the applicable decisions of the
      Court of Criminal Appeals or the Supreme Court of the United States.
      TEX. R. APP. P. 66.3(c).




                                          -7-
               STATEMENT OF FACTS RELATIVE TO GROUND RAISED

       In both cases Mr. Guerrero was assessed the consolidated court cost which

includes subsection 6 - funds for comprehensive rehabilitation. Mr. Guerrero

challenged the fee as an unconstitutional tax violating the separation of powers.

Guerrero, 2015 WL 2266247, at *4.

Comprehensive Rehabilitation

       Within the consolidated court cost is a the “comprehensive rehabilitation” cost

with 9.8218 percent of the $133 cost going for this “court cost.” TEX. LOC. GOV'T

CODE ANN. § 133.102(e)(6). After the cost to the county, the amount is about $11.75.

Money directed to this program is used to provide rehabilitation services to eligible

individuals. See TEX. HUM. RES. CODE ANN. § 115.001. The money is spent at the

direction of the Department of Assistive and Rehabilitative Services Id.

                                      ARGUMENT

The Court of Appeals held error was waived.

       The Court of Appeals refused to consider the issue because the

constitutionality had not presented it first in the trial court:

       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.


                                            -8-
Guerrero , 2015 WL 2266247, at *4.

The error was preserved based upon precedent from this Court.

      This Court explained that challenges to court costs can be raised for the first

time on appeal and “[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 v. State, 423 S.W.3d 396,

399 (Tex. Crim. App. 2014). In a companion case decided the same day, Johnson v.

State, the Court further explained that because the cost bill is most likely unavailable

at the time of the judgment, an “Appellant need not have objected at trial to raise a

claim challenging the bases of assessed costs on appeal.” Johnson v. State, 423 S.W.3d

385, 391 (Tex. Crim. App. 2014).

      The Court of Appeals held that neither of those cases allowed for a

constitutional challenge on appeal:

      These cases [Johnson and Cardenas], 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 complaints involving systemic
      requirements and non-waivable rights, constitutional complaints must
      be preserved in trial court).



                                          -9-
Guerrero, 2015 WL 2266247, at *4.

No objection was necessary in the trial court.

      This case is similar to Landers v. State where this Court explained that

challenging the court cost for an attorney pro tem could be raised for the first time on

appeal, holding:

       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.

Landers v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013). In Landers, the cost bill

was available six days after the judgment and this Court explained:

      No notice of this document was given to the appellant or her attorney
      and no further proceedings were held. Consequently, the appellant was
      not given an opportunity to object to the imposition of these costs.
      Since she was not given the opportunity, the absence of an objection is
      not fatal to her appeal.

Landers, 402 S.W.3d at 255. This Court went on to declare that Landers was not

required to object in a motion for new trial because there was no notice the cost bill

had ever been created and it would “allow a judge to de facto alter the statutory time

frame for motions for new trial.” Landers, 402 S.W.3d at 255.

      The cost bills in these cases were created on September 19, 2013 and

September 20, 2013. The judgment was entered in both cases on August 29, 2013.

Three weeks had passed. This Court has held that Mr. Guerrero was not required to



                                          -10-
file a motion for new trial in order to preserve his challenge. The Court of Appeals

erred in determining this issue was unpreserved.


                                PRAYER FOR RELIEF

      For the reasons states above, Mr. Guerrero prays that this Court grant his

petition for discretionary review.


                                        Respectfully submitted,
                                        ALEXANDER BUNIN
                                        Chief Public Defender
                                        Harris County Texas

                                        Jani Maselli Wood
                                        _______________________________
                                        JANI J. MASELLI WOOD
                                        Assistant Public Defender
                                        Harris County, Texas
                                        Jani.Maselli@pdo.hctx.net
                                        TBN. 00791195
                                        1201 Franklin Street, 13th Floor
                                        Houston, Texas 77002
                                        Phone: (713) 368-0016
                                        Fax: (713) 368-9278

                                        Attorney for Appellant
                                        Gregorio Guerrero




                                        -11-
                             CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 14, 2015, a copy

of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the

Harris County District Attorney’s Office through texfile.com at the following address:


Carly Dessauer
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
dessauer_carly@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

                                 Jani Maselli Wood
                           _________________________________
                           JANI J. MASELLI WOOD




                                         -12-
                        CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 1193 words printed in a proportionally spaced typeface.

2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.


                                                Jani Maselli Wood
                                          ____________________________
                                          JANI J. MASELLI WOOD




                                           -13-
    Appendix A
Opinion Guerrero v. State
                                                                    Guerrero whether he and the State had reached a plea bargain.
                  2015 WL 2266247                                   The following exchange occurred:
    Only the Westlaw citation is currently available.
                                                                    THE COURT: Okay. All right. I remember the Court did
 SEE TX R RAP RULE 47.2 FOR DESIGNATION AND                         offer you—make you give a recommendation or give you a
            SIGNING OF OPINIONS.                                    recommended offer; is that correct?

      DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).                      APPELLANT'S COUNSEL: That is correct.

                 Court of Appeals of Texas,
                    Houston (1st Dist.                              THE COURT: What was the offer?


           Gregorio Guerrero, Appellant                             APPELLANT'S COUNSEL: Previous offer by the State was
                          v.                                        ten years.
            The State of Texas, Appellee
   NO. 01–13–00821–CR, NO. 01–13–00822–CR |
           Opinion issued May 14, 2015                              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.
On Appeal from the 339th District Court, Harris County,
Texas, Trial Court Case Nos. 1172094 & 1172095
                                                                    THE COURT: Okay. So do you understand that going
                                                                    forward, the State has witnesses and this Court is going to
Attorneys and Law Firms
                                                                    hear all of the testimony. And you received probation on a
                                                                    first degree felony aggravated robbery with a deadly weapon,
Jani Wood, for Appellant.
                                                                    which the maximum amount you can receive is ninety-nine
                                                                    years, or life, in prison. You understand that?
Alan Curry, Carly Dessauer, Devon Anderson, for State of
Texas.
Panel consists of Justices Keyes, Huddle, and Lloyd.
                                                                    THE DEFENDANT: Yes, ma'am.


                MEMORANDUM OPINION
                                                                    THE COURT: Okay. And is it your desire to reject the State's
                                                                    offer of ten years and go forward with the hearing?
Rebeca Huddle, Justice
                                                                    THE DEFENDANT: Yes, ma'am.
*1 Appellant Gregorio Guerrero was charged by indictment
with aggravated robbery with a deadly weapon and evading
                                                                     Following that exchange, the State presented its evidence
arrest. He pleaded guilty, and the trial court deferred his
                                                                    showing that Guerrero violated his community supervision
adjudication. Three years later, the State filed a motion to
                                                                    conditions. The trial court found all of the State's allegations
adjudicate Guerrero's guilt, alleging that he had violated his
                                                                    true and sentenced Guerrero to 20 years' confinement for the
community supervision conditions. After conducting a
                                                                    aggravated robbery charge and two years' confinement for the
hearing on the State's motion, the trial court found the State's
                                                                    evading arrest charge, with the sentences to run concurrently.
allegations true and sentenced Guerrero to 20 years'
                                                                    That same day, on August 29, 2013, the trial court entered
confinement for the aggravated robbery charge and two years'
                                                                    judgment and assessed $304 in court costs for the aggravated
confinement for the evading arrest charge, with the sentences
                                                                    robbery conviction and $334 in court costs for the evading
to run concurrently. In two issues, Guerrero contends that the
                                                                    arrest conviction. Approximately 20 days later, on September
trial court erred in (1) unconstitutionally interfering with plea
                                                                    19 and 20, the district clerk issued a bill of cost for each
negotiations, which violated his right to due process and to
                                                                    conviction, which assessed $133 as a “consolidated court
have the proceeding adjudicated by a neutral and detached
                                                                    cost.” Guerrero did not file a motion for new trial.
judge, and (2) assessing an unconstitutional court cost against
him because the “consolidated court cost” authorized by
                                                                     Guerrero failed to preserve any complaint regarding plea
Texas Local Government Code section 133.012(a)(1) violates
                                                                                            negotiations
the Texas Constitution. We affirm.1
                           Background
                                                                    *2 In his first issue in appellate cause number
                                                                    01–13–00821–CR, Guerrero contends that the trial court
The State moved to adjudicate Guerrero's guilt on his
                                                                    violated his right to due process and to have his case
aggravated robbery and evading arrest charges in March
                                                                    adjudicated by a neutral and detached judge because the trial
2013. The trial court conducted a hearing on the State's
                                                                    court interjected itself in the plea-bargaining process. The
motion. At the beginning of the hearing, the trial court asked
State contends that Guerrero failed to preserve this issue. We      01–13–00822–CR, Guerrero contends the “comprehensive
agree with the State.                                               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,
Generally, to preserve a complaint for appellate review, a          collecting funds for the “comprehensive rehabilitation” fund
party must make a timely and specific request, objection, or        violates the separation of powers clause of the Texas
motion in the trial court and obtain an adverse ruling from the     Constitution. See Tex. Const. art. II, § 1.
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,      A. Standard of Review
or otherwise, are forfeited by failure to comply with Rule          *3 When reviewing a constitutional challenge, we presume
33.1(a). Mendez v. State, 138 S.W.3d 334, 342                       that the statute is valid and that the legislature was neither
(Tex.Crim.App.2004). The improper intrusion by a trial court        unreasonable nor arbitrary in enacting it. State v. Rosseau,
into the plea-bargaining process is not systemic error and may      396 S.W.3d 550, 557 (Tex.Crim.App.2013); Curry v. State,
not be brought for the first time on appeal. Moore v. State,        186 S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005, no
295 S.W.3d 329, 333 (Tex.Crim.App.2009).                            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
We conclude that Guerrero failed to preserve his complaint          the legislative intent and is not repugnant to the Constitution.”
that the trial court unconstitutionally interfered with the         Curry, 186 S.W.3d at 42. When statutory authority exists to
plea-bargaining process. At the beginning of the hearing, the       sustain a constitutional reading of a statute, we favor that
trial court asked Guerrero whether he and the State had             interpretation over any other. See id.; see also Ex parte
reached a plea bargain. The trial court stated “I remember the      Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978) (en
Court did offer you—make you give a recommendation or               banc) (“Every reasonable intendment and presumption will be
give you a recommended offer; is that correct?” Although that       made in favor of the constitutionality and validity of a statute,
statement is unclear, the record makes clear that the trial court   until the contrary is clearly shown.”) (citation omitted);
was referring to a plea offer made by the State. Guerrero's         Oakley v. State, 807 S.W.2d 378, 381 (Tex.App.–Houston
trial counsel stated that the “[p]revious offer by the State was    [14th Dist.] 1991) (“If a statute is capable of two
ten years.” Additionally, when the trial court asked Guerrero       constructions, one of which sustains its validity, this court will
if he wished to reject the plea and continue with the hearing,      uphold the interpretation that sustains its validity.”), aff'd, 830
he answered “Yes, ma'am.” According to Guerrero, the trial          S.W.2d 107 (Tex.Crim.App.1992).
court's reference to “the court's offer” constituted an improper
interjection in the pleabargaining process, which violated his
right to due process and to have the proceeding adjudicated         The party challenging the statute bears the burden of
by a neutral and detached judge.                                    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
However, Guerrero did not complain to the trial court that the      challenger must establish that no set of circumstances exists
court improperly interjected itself into the plea-bargaining        under which the statute will be valid.” Santikos v. State, 836
process. Likewise, Guerrero made no objection that the trial        S.W.2d 631, 633 (Tex.Crim.App.1992) (en banc).
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       B. Applicable Law
itself into the plea-bargaining process. See Tex.R.App. P.          Section 133.102(a)(1) of the Texas Local Government Code
33.1(a); Anderson v. State, 301 S.W.3d 276, 280                     mandates that a person convicted of a felony must pay $133
(Tex.Crim.App.2009) (“[O]ur prior decisions make clear that         “as a court cost, in addition to all other costs.” Tex. Loc.
numerous constitutional rights, including those that implicate      Gov't Code Ann.. § 133.102(a)(1) (West Supp.2014). The
a defendant's due process rights, may be forfeited for              collected amounts must be remitted to the state comptroller,
purposes of appellate review unless properly preserved.”);          who in turn must allocate this money to 14 specified
Moore, 295 S.W.3d at 333 (holding appellant failed to               “accounts and funds.” The statute provides that 9.8218
preserve issue because he did not object to trial court's           percent of the $133 cost is allocated to the “comprehensive
allegedly improper intrusion into pleabargaining process).          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
We overrule Guerrero's first issue in appellate cause number        the collected amounts. Id. Additionally, section 133.058
01–13–00821–CR.                                                     permits a municipality or county to retain 10 percent of
                                                                    collected amounts as a “service fee.” Id. § 133.058(a) (West
  Constitutionality of the “comprehensive rehabilitation”           Supp.2014).
    fund in Local Government Code section 133.102

In his second issue in appellate cause number                       C. Analysis
01–13–00821–CR and sole issue in appellate cause number
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                   An exception arises if the appellant raises a separation of
“comprehensive rehabilitation,” which is unrelated to any          powers challenge to a penal statute for the first time on
function of the courts. Guerrero contends that he may raise his    appeal. See Aldrich, 104 S.W.3d at 895. Guerrero, however,
constitutional challenge to the court cost for the first time on   does not challenge a penal statute. Rather, he contends that
appeal. We agree with the State that Guerrero may not assert       Local Government Code section 133.102 violates the
his constitutional claim for the first time on appeal and he       separation of powers clause because it improperly allocates
therefore waived any constitutional challenge to Local             funds to the comprehensive rehabilitation fund, which
Government Code section 133.102.                                   amounts to an unconstitutional tax. See id. (absolute systemic
                                                                   requirements include penal statute's compliance with
                                                                   separation of powers clause of Texas Constitution).
Ordinarily, to preserve error, there must be a timely, specific    Accordingly, we conclude that Guerrero failed to preserve his
objection and an adverse ruling by the trial court. Tex.R.App.     separation of powers argument. See Gamble v. State, Nos.
P. 33.1; see Lozano v. State, 359 S.W.3d 790, 823                  02–13–00573–CR & 02–13–00574–CR, 2015 WL 221108,
(Tex.App.–Fort Worth 2012, pet. ref'd) (“To be timely, an          at *4 (Tex.App.–Fort Worth Jan. 15, 2015, pet. ref d) (mem.
objection must be made as soon as the basis for the objection      op., not designated for publication) (appellant's failure to
becomes apparent.”). Except for complaints involving               preserve issue in trial court forfeited argument on appeal that
systemic requirements, or rights that are waivable only, all       his form of community supervision violated separation of
other complaints, whether constitutional, statutory, or            powers because he did not contend that a penal code section
otherwise, are forfeited by failure to comply with Rule            violated separation of powers).
33.1(a). Mendez v. State, 138 S.W.3d 334, 342
(Tex.Crim.App.2004).
                                                                   In support of his position that he may raise his separation of
                                                                   powers argument for the first time on appeal, Guerrero relies
“Examples of rights that are waivable-only include the rights      on Cardenas v. State, 423 S.W.3d 396 (Tex.Crim.App.2014)
to the assistance of counsel, the right to trial by jury, and a    and Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App.2014),
right of appointed counsel to have ten days of trial               in which the Court of Criminal Appeals held that a defendant
preparation which a statute specifically made waivable-only.”      may challenge the sufficiency of the evidence to support the
Aldrich v. State, 104 S.W.3d 890, 895 (Tex.Crim.App.2003)          assessment of court costs for the first time on appeal. The
(en banc). “Absolute systemic requirements [that may not be        Court of Criminal Appeals explained that “[c]onvicted
waived] include jurisdiction of the person [and] the subject       defendants have constructive notice of mandatory court costs
matter, and a penal statute's being in compliance with the         set by statute and the opportunity to object to the assessment
Separations of Powers Section of the state constitution.” Id.      of court costs against them for the first time on appeal or in a
Violation of these non-waivable absolute systemic rights           proceeding under Article 103.008 of the Texas Code of
constitutes fundamental error. McLean v. State, 312 S.W.3d         Criminal Procedure.” Cardenas, 423 S.W.3d at 399; see also
912, 916 (Tex.App.–Houston [1st Dist.] 2010, no pet.).             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
*4 Here, we conclude that Guerrero forfeited his separation        address the constitutionality of court costs, and, therefore, do
of powers argument by failing to raise it in the trial court,      not support Guerrero's contention that he may assert his
because his challenge does not constitute a denial of an           constitutional claim for the first time on appeal. Accordingly,
absolute systemic requirement. Guerrero did not file a motion      we hold that Guerrero failed to preserve his constitutional
for new trial or motion in arrest of judgment challenging the      challenge to Local Government Code section 133.102's
constitutionality of assessing a cost to support the               allocation of funds to the comprehensive rehabilitation fund.
comprehensive rehabilitation fund. See Salinas v. State, 426       See Mendez, 138 S.W.3d at 342 (except for complaints
S.W.3d 318, 325–26 (Tex.App.–Houston [14th Dist.] 2014,            involving systemic requirements and non-waivable rights,
pet. granted) (analyzing constitutional challenge where            constitutional complaints must be preserved in trial court).
appellant raised issue of constitutionality of Local
Government Code section 133.102 in motion for new trial and
motion in arrest of judgment); Peraza v. State, ––– S.W.3d         *5 We overrule Guerrero's second issue in appellate cause
––––, Nos. 01–12–00690–CR & 01–12–00691–CR, 2014                   number 01–13–00821–CR and sole issue in appellate cause
WL 7476214, at *1 (Tex.App.–Houston [1st Dist.] Dec. 30,           number 01–13–00822–CR.
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.,                                  Conclusion
Russell v. State, No. 02–11–00478–CR, 2013 WL 626983, at
*2 (Tex.App.–Fort Worth Feb. 21, 2013, pet. ref d) (mem.           We affirm the judgments of the trial court.
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).
All Citations

Not Reported in S.W.3d, 2015 WL 2266247



Footnotes

1       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.

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.
