                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00163-CR


TERRELL LADEL DAVIS                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1308456D

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                         MEMORANDUM OPINION 1

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      Appellant Terrell Ladel Davis appeals from his conviction for burglary of a

habitation. 2 In two points, he contends that the trial court erred by including an

unauthorized fine in its judgment and that part of the court costs contained in the



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 30.02(a) (West 2011).
judgment are illegal because the statute authorizing them is unconstitutional. We

modify the trial court’s judgment and affirm it as modified.

                                Background Facts

      A grand jury indicted appellant for burglary of a habitation; the indictment

alleged that he had entered the habitation while intending to commit theft.

Appellant received appointed counsel, waived several constitutional and statutory

rights, judicially confessed to the offense, and pled guilty. In accordance with a

plea bargain agreement, the trial court deferred adjudication of appellant’s guilt

and placed him on community supervision for four years.               The deferred

adjudication order recited a fine of “$400 Not Suspended” and required appellant

to pay court costs. A separate document included payment of the $400 fine and

$284 in court costs as part of appellant’s conditions of community supervision.

      Less than two years later, the State filed a petition for the trial court to

adjudicate appellant’s guilt.     The State alleged that he had violated his

community supervision conditions by not participating in a substance abuse

treatment program and by using illegal drugs on several occasions.

      The trial court held a hearing on the State’s petition. Appellant pled true to

not participating in the substance abuse treatment program and not true to using

illegal drugs. After receiving evidence from four witnesses (including appellant),

the trial court found that both allegations were true. The court found appellant

guilty and sentenced him to ten years’ confinement.            On the record at the

hearing, the trial court did not impose a fine. Appellant brought this appeal.


                                          2
                                 Validity of Fine

      In his first point, appellant contends that the judgment adjudicating his guilt

includes a fine that was not pronounced orally and that must therefore be

deleted. In response, the State argues only that the judgment adjudicating guilt

does not contain a fine.

      The trial court’s “Judgment Adjudicating Guilt” reflects appellant’s

conviction and sentence and shows on its face that he owes $309 in court costs.

Although the judgment does not expressly include a fine, 3 it incorporates an

attached “Order to Withdraw Funds.” 4 That order states that appellant has been

assessed “[c]ourt costs, fees[,] and/or fines” in the amount of $468.80. The order

requires payment of that amount out of appellant’s inmate trust account. The

difference between the total amount owed, $468.80, and the court costs owed,

$309 (as stated in the judgment), is $159.80.       The clerk’s record contains a

document that designates $159.80 as the “[t]otal of all [r]eparations [o]wed.”

That document establishes that the $159.80 sum comprises $13 due to the

community supervision and corrections department, $120 of probation fees, and

$26.80 in “fines.” Another document in the record, which appears to have been

generated by the district clerk, establishes that appellant paid $373.20 of his



      3
      In the place of the judgment where a fine could be expressly included, the
judgment says “N/A.”
      4
       The judgment states, “Attachment A, Order to Withdraw Funds, is
incorporated into this judgment and made a part thereof.”


                                         3
original $400 fine (which the deferred adjudication order recited) and therefore

had $26.80 in “[f]ines [r]emaining.”

      We conclude that when considered collectively, these documents establish

that by incorporating into the judgment the Order to Withdraw Funds, which

requires appellant to pay $468.80 out of his trust account, the trial court

necessarily included the remaining, unpaid fine of $26.80—part of the

“[r]eparations” of $159.80—in the judgment. Thus, we cannot agree with the

State that the “judgment adjudicating guilt does not contain a fine.”

      Appellant contends that the $26.80 fine must be deleted because although

that amount was included as part of the larger $400 fine in the order deferring

adjudication of his guilt, the judgment adjudicating guilt superseded that order

and therefore also superseded the fine.        Citing the same case upon which

appellant principally relies—Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App.

2004)—the State concedes that because a judgment adjudicating guilt “sets

aside an order deferring adjudication of guilt, a trial court cannot impose a fine at

adjudication—even one previously imposed as a condition of community

supervision—unless it orally pronounces one.” The State also acknowledges

that the trial court did not pronounce a fine when it adjudicated appellant’s guilt.

      We agree with the parties’ shared understanding of Taylor as holding that

a judgment adjudicating guilt sets aside a fine that is contained in an order

deferring adjudication and that is not announced orally by the court when it

revokes community supervision and convicts and sentences a defendant. See


                                          4
id. at 502; see also Abron v. State, 997 S.W.2d 281, 281–82 (Tex. App.—Dallas

1998, pet. ref’d) (modifying a judgment to delete a fine that was imposed in an

order deferring adjudication but was not orally pronounced upon the revocation of

community supervision, conviction, and sentencing).        Thus, because the trial

court included $26.80 as part of the $400 fine in the order deferring adjudication

but did not announce any fine orally when it revoked appellant’s community

supervision and convicted and sentenced him, we hold that the fine must be

deleted. Taylor, 131 S.W.3d at 502; Abron, 997 S.W.2d at 281–82; see also

Noonkester v. State, No. 02-14-00147-CR, 2015 WL 831421, at *2 (Tex. App.—

Fort Worth Feb. 26, 2015, no pet.) (mem. op., not designated for publication)

(“[B]ecause the trial court did not include the fine previously assessed in its order

deferring adjudication in its oral pronouncement of sentence at the revocation

hearing, we reform the judgment adjudicating guilt to delete the $1,500 fine

. . . .”); Washington v. State, No. 02-11-00152-CR, 2012 WL 1345743, at *2 (Tex.

App.—Fort Worth Apr. 19, 2012, no pet.) (mem. op., not designated for

publication) (“[W]e reform the trial court’s judgment to delete the language

regarding the payment of the portion of reparations that is made up of a

previously assessed fine.”). We sustain appellant’s first point.

                             Validity of Court Costs

      In his second point, appellant argues that $133 of the $309 in court costs

was imposed under section 133.102(a)(1) of the local government code, which

he asserts is facially unconstitutional.     That section states that a person


                                         5
“convicted of an offense shall pay,” in addition to all other costs, “$133 on

conviction of a felony.” Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (West Supp.

2014). The section also states that this cost must be remitted to the comptroller

for use in several funds, including funds concerning abused children’s

counseling, crime stoppers assistance, breath alcohol testing, criminal justice

planning, and judicial training. Id. § 133.102(b), (e). A bill of costs in the clerk’s

record includes $133 as a cost labeled as “CCC-Felony.”

       Appellant contends that section 133.102(a)(1) violates the separation of

powers provision in the Texas Constitution. See Tex. Const. art. II, § 1. He

asserts that none of the uses for the cost authorized by section 133.102 are

“necessary or incidental” to the trial of a criminal case, that the cost therefore

operates as a tax and makes courts tax gatherers, and that a 1942 decision from

the court of criminal appeals precludes the cost. See Ex parte Carson, 143 Tex.

Crim. 498, 500–01, 505, 159 S.W.2d 126, 127, 130 (1942), overruled by Peraza

v. State, Nos. PD-0100-15, PD-0101-15, 2015 WL 3988926, at *7 (Tex. Crim.

App. July 1, 2015) (“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.’”).

       Appellant did not present any of these arguments in the trial court. The

State contends that he therefore did not preserve them for our review. Generally,

to preserve a complaint for our review, a party must have presented to the trial

court a timely objection that states the specific grounds for the desired ruling if


                                             6
they are not apparent from the context of the objection.             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 (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. 5 Ibenyenwa v. State, 367 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).



       5
        While the court of criminal appeals has stated that a “penal statute’s . . .
compliance with the separation of powers section of our state constitution” is a
systemic requirement that may be raised for the first time on appeal, see Henson
v. State, 407 S.W.3d 764, 768 (Tex. Crim. App. 2013), cert. denied, 134 S. Ct.
934 (2014), appellant does not contend that a penal statute violated separation of
powers. In contexts other than challenges to the facial validity of penal code
provisions, we have held that separation of powers arguments must be
preserved in the trial court. 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); 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).


                                             7
      Appellant acknowledges these general principles of error preservation but

cites Johnson v. State, a 2014 decision from the court of criminal appeals, to

argue that a “complaint . . . regarding the imposition of court costs upon the

revocation of community supervision can be raised for the first time on appeal.”

423 S.W.3d 385 (Tex. Crim. App. 2014).          There, Johnson appealed the

assessment of $234 in court costs, contending that the record “contained no bill

of costs or other evidence supporting the $234 amount.” Id. at 388. Although a

court of appeals held that the costs had been included in the judgment

erroneously because no evidence supported them, the court of criminal appeals

held that a supplemental record that contained a bill of costs sufficiently

supported the costs. Id. at 388, 395–96. In reaching that holding, the court also

addressed preservation of error. Id. at 390–91. The court held that a “criminal

defendant need not preserve an objection in the trial court to raise a claim

challenging the bases for the imposition of court costs for the first time on

appeal.” Id. at 390 (emphasis added). In so holding, the court relied on one of

its previous opinions, which similarly concerned the factual basis for court-

ordered reimbursement of appointed attorney’s fees. See id. (citing Mayer v.

State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). 6 The court emphasized



      6
       In Mayer, the court explained,

      We conclude that appellant’s complaint about the sufficiency of
      evidence of his financial resources and ability to pay were likewise
      not waived by his failure to raise such a complaint at trial. We

                                        8
that “while some defendants in some cases may have an opportunity to

recognize a basis to object to the imposition of court costs in open court if an

itemized bill is available to them, most defendants . . . will not.” Id. at 390–91.

      While the holding in Johnson signifies that a defendant need not object to

the factual bases for an aggregate amount of costs to contest that amount on

appeal, the holding does not explicitly or necessarily affect the more general rule

that a facial challenge to the constitutionality of a statute—a legal claim that is

independent of weighing facts that appear in the record—must be brought in a

trial court to be raised on appeal. 7 See Karenev, 281 S.W.3d at 434 (“Statutes

are presumed to be constitutional until it is determined otherwise. The State and

the trial court should not be required to anticipate that a statute may later be held

to be unconstitutional.” (footnote omitted)). Here, upon appellant’s conviction, he

had all the information needed to challenge the constitutionality of section

133.102(a)(1) while the trial court had authority to rule on the challenge. 8 See

Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (stating that a person “shall pay” $133


      reiterate that no trial objection is required to preserve an appellate
      claim of insufficient evidence . . . .

309 S.W.3d at 556 (emphasis added).
      7
       A facial challenge to a statute is predicated only on the language of a
statute, not how the statute applies to the circumstances of a particular case.
See State v. Rosseau, 396 S.W.3d 550, 558 n.9 (Tex. Crim. App. 2013).
      8
       We note that the district clerk’s cost bill, which includes the $133 “CCC-
Felony” cost, bears a date of April 21, 2015. The trial court sentenced appellant
on April 16, 2015, and the trial court signed its judgment on April 22, 2015.


                                          9
“on conviction of a felony”); see also State v. Aguilera, 165 S.W.3d 695, 697–98

(Tex. Crim. App. 2005) (explaining that “[a]t a minimum,” a trial court has plenary

power over a criminal case thirty days after sentencing occurs).

      Accordingly, while acknowledging the holding in Johnson, one of our sister

courts recently held that a facial challenge to the constitutionality of section

133.102 cannot be raised for the first time on appeal. Guerrero v. State, Nos. 01-

13-00821-CR, 01-13-00822-CR, 2015 WL 2266247, at *3–4 (Tex. App.—

Houston [1st Dist.] May 14, 2015, pet. filed) (mem. op., not designated for

publication) (“[Johnson] did not address the constitutionality of court costs, and,

therefore, [does] not support Guerrero’s contention that he may assert his

constitutional claim for the first time on appeal. . . . [W]e hold that Guerrero failed

to preserve his constitutional challenge to . . . section 133.102’s allocation of

funds . . . .”); see also Thias v. State, No. 07-12-00513-CR, 2014 WL 6556530, at

*2 (Tex. App.—Amarillo Nov. 20, 2014, no pet.) (mem. op., not designated for

publication) (likewise holding that a defendant forfeited a constitutional challenge

to section 133.102 by raising it for the first time on appeal); cf. Salinas v. State,

464 S.W.3d 363, 365, 368 (Tex. Crim. App. 2015) (remanding a case to a court

of appeals to consider the merits of a constitutional challenge to section 133.102

when after sentencing, a defendant objected to the section’s constitutionality).

      Because appellant had an opportunity upon his conviction in the trial court

to challenge the constitutionality of section 133.102 but instead brought the

challenge for the first time in this court, we hold that he forfeited the challenge,


                                          10
and we overrule his second point. See Tex. R. App. P. 33.1(a); Karenev, 281

S.W.3d at 434; Guerrero, 2015 WL 2266247, at *3–4; Thias, 2014 WL 6556530,

at *2; see also Holmes v. State, 380 S.W.3d 307, 308 (Tex. App.—Fort Worth

2012, pet. ref’d) (“[A] challenge to the constitutionality of a statute is a forfeitable

right and must be preserved in the trial court during or after trial.” (emphasis

added)).

                                     Conclusion

      Having sustained appellant’s first point and having overruled his second

point, we modify the trial court’s judgment to exclude $26.80 from the total

amount of $468.80 of “[c]ourt costs, fees[,] and/or fines” that the judgment orders

appellant to pay. We reform the judgment so that the “Order to Withdraw Funds,”

which the judgment expressly incorporates, requires appellant to pay $442. As

modified, we affirm the judgment. See Tex. R. App. P. 43.2(b); Alexander, 301

S.W.3d at 364.

                                                      /s/ Terrie Livingston

                                                      TERRIE LIVINGSTON
                                                      CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

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

DELIVERED: October 1, 2015




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