                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00372-CR


JUSTIN DAVID WADDELL                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1332458D

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                        MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      In two points, appellant Justin David Waddell appeals the portion of the

trial court’s judgment imposing certain court costs.      Because we hold that

Waddell failed to preserve these arguments for our review, we will affirm.




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       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      The facts of this case are not in dispute, nor is their recitation necessary

for the disposition of this case.    For contextual purposes, it is sufficient to

describe that Waddell pleaded guilty to driving while intoxicated and felony

repetition and that after the trial court suspended the imposition of a ten-year

prison sentence, the trial court placed Waddell on ten years’ community

supervision. In its judgment, the trial court assessed court costs, part of which

were for a $34 “DNA Testing-Pro” cost and a $100 “Emerg Med Serv” cost.

Waddell filed a motion for new trial that was overruled by operation of law. This

appeal followed.

                                  III. DISCUSSION

      In his first and second points, Waddell argues that the trial court’s

imposition of the $34 in court costs pursuant to Texas Code of Criminal

Procedure article 102.020(a)(3) and the $100 in court costs pursuant to Texas

Code of Criminal Procedure article 102.0185(a) are facially unconstitutional

taxes. See Tex. Code Crim. Proc. Ann. art. 102.020(a)(3) (West Supp. 2015)

(imposing a $34 court cost for certain offenses wherein a DNA sample is taken);

see also Tex. Code Crim. Proc. Ann. art. 102.0185(a) (West Supp. 2015)

(imposing certain court costs for intoxication-related offenses).          Waddell

contends that both of these articles violate the separation of powers provision in

the Texas Constitution. See Tex. Const. art. II, § 1. He asserts that none of the

uses for the costs authorized by these articles are “necessary or incidental” to the


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trial of a criminal case; that the costs therefore operate as a tax and turn courts

into tax gatherers; and that an overruled 1942 decision from the court of criminal

appeals precludes these costs. See Ex parte Carson, 143 Tex. Crim. 498, 500–

01, 505, 159 S.W.2d 126, 127, 130 (1942), overruled by Peraza v. State, 467

S.W.3d 508, 517 (Tex. Crim. App.) (“We therefore reject Carson’s requirement

that, in order to pass constitutional muster, the statutorily prescribed court cost

must be ‘necessary’ or ‘incidental’ to the ‘trial of a criminal case.’”).

      Waddell did not present any of these arguments in the trial court at the

time he entered his plea, nor did he present them in his motion for new trial. The

State contends that he therefore did not preserve them for our review. We agree

with the State.

      Generally, to preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling if they are not apparent from the context of

the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407

S.W.3d 259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302,

305–06 (Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must

have ruled on the request, objection, or motion, either expressly or implicitly, or

the complaining party must have objected to the trial court’s refusal to rule. Tex.

R. App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263.           Even most constitutional

issues, including facial challenges to the constitutionality of a statute, may be

forfeited by failing to raise them in the trial court.       Ibenyenwa v. State, 367


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S.W.3d 420, 422 (Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g); see

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (“We conclude

that a defendant may not raise for the first time on appeal a facial challenge to

the constitutionality of a statute.”). We should not address the merits of an issue

that has not been preserved for our review. Ford v. State, 305 S.W.3d 530, 532

(Tex. Crim. App. 2009).

      This court has recently addressed an argument similar to those Waddell

now brings and held that the failure to present to the trial court a facial

constitutional claim based on the separation-of-powers doctrine forfeits appellate

review of the argument. See Davis v. State, No. 02-15-00163-CR, 2015 WL

5770516, at *2, *4 (Tex. App.—Fort Worth Oct. 1, 2015, pet. filed) (mem. op., not

designated for publication) (holding that Davis failed to preserve his separation-

of-powers challenge to imposition of certain court costs because he failed to

present issue to trial court). We see no distinction, and Waddell does not argue

how his arguments are distinct, from our recent holding in Davis. Thus, we hold

that Waddell has failed to preserve these arguments for our review, and we

overrule both of Waddell’s points on appeal.

                                 IV. CONCLUSION

      Having overruled both of Waddell’s points on appeal, we affirm the trial

court’s judgment.

                                                   PER CURIAM




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PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 3, 2015




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