                                                                                  ACCEPTED
                                                                             07-15-00181-CR
                                                                SEVENTH COURT OF APPEALS
                                                                          AMARILLO, TEXAS
                                                                       9/18/2015 11:05:31 AM
                                                                            Vivian Long, Clerk


            Nos. 07-15-00181-CR-& 07-15-00182-CR
                           IN THE                         FILED IN
                                                   7th COURT OF APPEALS
                     COURT OF APPEALS                  AMARILLO, TEXAS
                                                   9/18/2015 11:05:31 AM
                          FOR THE                        VIVIAN LONG
                                                            CLERK
             SEVENTH JUDICIAL DISTRICT OF TEXAS
                      AMARILLO, TEXAS

                   MICHAEL DON DENTON,
                             APPELLANT
                            V.
                    THE STATE OF TEXAS
        ON APPEAL IN CAUSE NOS. 18,607-B and 18,608-B
               FROM THE 181st DISTRICT COURT
                 OF RANDALL COUNTY, TEXAS
         HONORABLE JOHN BOARD, JUDGE PRESIDING

                BRIEF FOR THE STATE OF TEXAS

                           JAMES A. FARREN
                           CRIMINAL DISTRICT ATTORNEY
                           RANDALL COUNTY, TEXAS

                           KRISTY WRIGHT
                           SBN 00798601
                           kwright@randallcounty.org
                           ASST. CRIMINAL DISTRICT ATTORNEY
                           2309 Russell Long Blvd., Suite 120
                           Canyon, Texas 79015
                           (806) 468-5570
                           FAX (806) 468-5566
                           ATTORNEYS FOR THE STATE

STATE REQUESTS ORAL ARGUMENT IF REQUESTED BY THE APPELLANT
                         TABLE OF CONTENTS

INDEX OF AUTHORITIES                                 4

THE CASE IN BRIEF                                    5-6

STATE’S COUNTERPOINTS



                        COUNTERPOINT NO. 1

      THE APPELLANT WAS NOT ASSESSED A $2,000 FINE AFTER SENTENCING.
ALTHOUGH THE APPELLANT PAID OFF A $2,000 FINE WHILE HE WAS ON
DEFERRED PROBATION IN 18,607-B, THE TRIAL JUDGE NEVER REASSESSED THE
$2,000 FINE AFTER ADJUDICATING GUILT AND SUCH FINE WAS NEVER INCLUDED
IN THE WRITTEN JUDGMENT.

                        COUNTERPOINT NO. 2

     THE APPELLANT FAILED TO PRESERVE ISSUE TWO FOR APPELLATE REVIEW.



STATEMENT OF FACTS                                   7-12

COUNTERPOINT NO. 1
    RESTATED                                         13
    STATEMENT OF FACTS                               13
    SUMMARY OF THE ARGUMENT                          13-14
    ARGUMENT                                         14-16

COUNTERPOINT NO. 2
    RESTATED                                         17
    STATEMENT OF FACTS                               17
    SUMMARY OF THE ARGUMENT                          17
    ARGUMENT                                         17-24

                                  2
PRAYER                          25

CERTIFICATE OF COMPLIANCE       25

CERTIFICATE OF SERVICE          26




                            3
                            INDEX OF AUTHORITIES

TEXAS CASES

Guerrero v. State, 2015 WL 2266247                                18, 20, 22
                        st
 (Tex.App.—Houston [1 Dist.] 2015) (not designated for publication)

Johnson v. State, 2015 WL 5025653                                  18
                         th
  (Tex.App.—Houston [14 Dist.] 2015) (not designated for publication)

Karenev v. State, 281 S.W.3d 428                                  18
  (Tex.Crim.App. 2009)

Taylor v. State, 131 S.W.3d 497                                   14, 15
  (Tex.Crim.App. 2004)

Thias v. State, 2014 WL 6556530                                   18
  (Tex.App.—Amarillo 2014) (not designated for publication)

Thomas v. State, 445 S.W.3d 288                                   24
  (Tex.App.—Houston [1st Dist.] 2013, no pet.)

Wyatt v. State, 268 S.W.3d 270                                    18
 (Tex.App.—Amarillo 2008, no pet.)


TEXAS STATUTES

Texas Local Government Code, Section 133.102                      18, 24

Texas Local Government Code, Section 133.102(e)(7)                17, 18

Texas Rules of Appellate Procedure, Rule 21.4(a)                  20, 21, 23

Texas Rules of Appellate Procedure, Rule 22.3                     20, 21, 23




                                        4
                     Nos. 07-15-00181-CR & 07-15-00182-CR
                                    IN THE
                               COURT OF APPEALS
                                   FOR THE
                      SEVENTH JUDICIAL DISTRICT OF TEXAS
                                AMARILLO, TEXAS
                             MICHAEL DON DENTON,
                                       APPELLANT
                                      V.
                              THE STATE OF TEXAS

TO THE HONORABLE COURT OF APPEALS:

      Comes now, the State of Texas in the above styled and numbered causes

and files this brief in response to the brief of the Appellant, Michael Don Denton.

The appellant was convicted of the felony offenses of delivery of a controlled

substance (4 grams or more but less than 200 grams) in Cause Nos. 18,607-B and

18,608-B, in 181st District Court of Randall County, the Honorable John Board,

Judge presiding.

                               THE CASE IN BRIEF
THE CHARGES                    DELIVERY OF A CONTROLLED SUBSTANCE (4
                               GRAMS OR MORE BUT LESS THAN 200 GRAMS) IN
                               CAUSE NOS. 18,607-B & 18,608-B

THE PLEAS                      GUILTY

THE VERDICTS (JUDGE)           DEFERRED ADJUDICATION OF GUILT IN EACH CASE

THE PUNISHMENTS (JUDGE)        FOUR (4) YEARS DEFERRED ADJUDICATION
                               PROBATION & A $2,000.00 FINE IN EACH CASE

                                         5
VIOLATIONS OF PROBATION   STATE FILED MOTIONS TO REVOKE ORDER
                           GRANTING UNADJUDICATED PROBATION

THE PLEAS                 APPELLANT PLED TRUE IN EACH CASE

THE PUNISHMENTS (JUDGE)   PROBATED SENTENCE OF FOUR (4) YEARS
                          EXTENDED FOR ONE (1) MORE YEAR AND
                          APPELLANT ORDERED TO PARTICIPATE IN AND
                          COMPLETE COURT ORDERED RESIDENTIAL
                          TREATMENT (CRTC) IN EACH CASE

REVOCATIONS               STATE FILED AN AMENDED MOTION TO REVOKE
                          ORDER GRANTING UNADJUDICATED PROBATION
                          IN EACH CASE

DISMISSALS                STATE FILED A MOTION TO DISMISS AMENDED
                          MOTION TO REVOKE IN EACH CASE AND TRIAL
                          JUDGE DISMISSED BOTH MOTIONS

REVOCATIONS               STATE FILED A MOTION TO REVOKE ORDER
                          GRANTING UNADJUDICATED PROBATION IN EACH
                          CASE

THE PLEAS                 APPELLANT PLED NOT TRUE TO THE ALLEGATIONS
                          IN THE STATE’S MOTION TO REVOKE IN 18,607-B
                          & 18,608-B. IN EACH CASE, STATE WAIVED
                          PARAGRAPHS 1 & 3. THE TRIAL JUDGE FOUND
                          PARAGRAPHS 2, 4, & 5 TO BE TRUE

THE PUNISHMENTS (JUDGE)   TWENTY (20) YEARS IN PRISON IN EACH CASE. NO
                          FINE WAS ASSESSED. JUDGE ORDERED THE
                          SENTENCES IN 18,607-B AND 18,608-B TO RUN
                          CONCURRENTLY




                                  6
                        STATEMENT OF FACTS

January 10, 2007    Indictment filed against appellant In 18,608-B for the
                    felony offense of delivery of a controlled substance (4
                    grams or more but less than 200 grams). (CR.I-18,608-B-
                    page 6)

February 7, 2007    Indictment filed against appellant in 18,607-B for the
                    felony offense of delivery of a controlled substance (4
                    grams or more but less than 200 grams). (CR.I-18,607-B-
                    page 6)

July 26, 2007       Appellant placed on 4 years deferred adjudication and
                    ordered to pay court costs and a $2,000 fine in both
                    18,607-B and 18,608-B. (CR.I-18,607-B-pages 11-16, 19-
                    23); (CR.I-18,608-B-pages 11-16, 19-23). No appeal taken
                    from these proceedings. (CR.I-18,607-B-pages 17, 18);
                    (CR.I-18,608-B-pages 17, 18)

August 13, 2007     Bill of cost reflected that appellant owed a $2,000 fine
                    and a $133 consolidated court cost in both 18,607-B and
                    18,608-B. (SCR.I-18,607-B-page 4); (SCR.I-18,608-B-page
                    4)

February 10, 2009   State filed a motion to revoke order granting
                    unadjudicated probation in 18,607-B and 18,608-B.
                    (CR.I-18,607-B-pages 28-29); (CR.I-18,608-B-pages 28-
                    29)

March 18, 2009      Appellant paid off all of his fines and court costs in
                    18,607-B. (SCR.I-18,607-B-pages 29; 30-43; 44-51)

June 5, 2009        Judge signed a supplemental order in 18,608-B
                    amending the conditions of probation. (CR.I-18,608-B-
                    page 34). Judge extended the probationary period in
                    18,608-B for one year and ordered appellant to


                                   7
                     participate in and complete CRTC. (CR.I-18,608-B-page
                     34).

June 9, 2009         Judge signed a supplemental order in 18,607-B
                     amending the conditions of probation. (CR.I-18,607-B-
                     page 34). Judge extended probationary period in
                     18,607-B for one year and ordered appellant to
                     participate in and complete CRTC. (CR.I-18,607-B-page
                     34).

August 11, 2009      State filed a motion to revoke order granting
                     unadjudicated probation in 18,607-B and 18,608-B.
                     (CR.I-18,607-B-page 36); (CR.I-18,608-B-page 36)

September 21, 2009   State filed an amended motion to revoke order granting
                     unadjudicated probation in 18,607-B and 18,608-B.
                     (CR.I-18,607-B-page 44); (CR.I-18,608-B-page 44)

January 27, 2010     Judge held a hearing in 18,607-B and 18,608-B on the
                     State’s amended motion to revoke dated September 21,
                     2009. (RR.II-6-125). The hearing was not completed on
                     this date and judge rescheduled the hearing for
                     February 24, 2010. (RR.II-110-111, 121, 123, 124);
                     (RR.III-5-7)

February 17, 2010    State filed a motion to dismiss the amended motion to
                     revoke dated September 21, 2009 in 18,607-B and
                     18,608-B. Judge dismissed the amended motions. (CR.I-
                     18,607-B-page 101); (CR.I-18,608-B-page 101)

February 17, 2010    State filed a motion to revoke order granting
                     unadjudicated probation in 18,607-B and 18,608-B.
                     (CR.I-18,607-B-pages 102-103); (CR.I-18,608-B-pages
                     102-103)

February 24, 2010    Judge held hearing in 18,607-B and 18,608-B on State’s
                     motion to revoke dated February 17, 2010. (RR.III-5).

                                   8
                 However, trial counsel was not present at the hearing
                 because he had not “…been paid for the new motion….”
                 (RR.III-5). The trial judge rescheduled the hearing to
                 March 24, 2010. (RR.III-7)

March 24, 2010   Judge held a hearing in 18,607-B and 18,608-B on State’s
                 motion to revoke dated February 17, 2010. (RR.IV-6-
                 106). In both cases, State waived paragraphs 1 and 3 of
                 the motion to revoke. (RR.IV-44; 68). At the hearing,
                 Audra Laminack (a probation officer) testified that
                 appellant failed to submit to a urinalysis on February 2,
                 2010. (RR.IV-19, 21). In addition, Ms. Laminack testified
                 that appellant failed to provide her with a completed
                 physical (including results of a TB test) and paperwork
                 from Dr. William Kracke (detailing appellant’s diagnosis
                 and what medication he was on) by February 12, 2010.
                 (RR.IV-20-25; 31-32). After listening to all the evidence,
                 Judge found paragraphs 2, 4, and 5 to be true in both
                 18,607-B and 18,608-B. (CR.I-18,607-B-pages 118-119);
                 (CR.I-18,608-B-pages 118-119); (RR.IV-68). Trial judge
                 later sentenced appellant to 20 years in prison in
                 18,607-B and 18,608-B and ordered the sentences to run
                 concurrently. No fines were assessed. (CR.I-18,607-B-
                 pages 118-119); (CR.I-18,608-B-pages 118-119); (RR.IV-
                 105-106)

March 29, 2010   A bill of cost reflected that appellant had not paid off the
                 $2,000 fine and a $133 consolidated court cost in
                 18,608-B. (SCR.I-18,608-B-page 29)

April 6, 2010    David Martinez was retained as appellate counsel in
                 each case. (CR.I-18,607-B-page 147); (CR.I-18,608-B-
                 page 147)

April 26, 2010   David Martinez filed motions for new trial in 18,607-B
                 and 18,608-B, which were overruled by operation of law.


                                 9
                     (CR.I-18,607-B-pages 120-125); (CR.I-18,608-B-pages 10-
                     125).

May 5, 2010          David Martinez filed a notice of appeal in each case.
                     (CR.I-18,607-B-at 126); (CR.I-18,608-B-page 126)

August 11, 2010      David Martinez failed to file appellate briefs in 18,607-B
                     and 18,608-B. (CR.I-18,607-B-page 147); (CR.I-18,608-B-
                     page 147)

September 7, 2010    David Martinez failed to file appellate briefs in 18,607-B
                     and 18,608-B. (CR.I-18,607-B-page 147); (CR.I-18,608-B-
                     page 147)

September 27, 2010   David Martinez failed to file appellate briefs in 18,607-B
                     and 18,608-B. (CR.I-18,607-B-page 147-148); (CR.I-
                     18,608-B-page 147-148)

October 8, 2010      18,607-B and 18,608-B were abated and remanded to
                     trial judge to determine whether appellant desired to
                     prosecute the appeals, whether David Martinez would
                     diligently pursue the appeals, and whether new counsel
                     should be appointed to pursue the appeals. (CR.I-
                     18,607-B-page 148); (CR.I-18,608-B-page 148)

October 14, 2010     David Martinez wrote appellant a letter advising him to
                     withdraw his direct appeals in 18,607-B and 18,608-B in
                     order to pursue a state writ of habeas corpus. (CR.I-
                     18,607-B-page 154); (CR.I-18,608-B-page 154)

October 21, 2010     Appellant signed an affidavit requesting to withdraw his
                     notice of appeal in 18,607-B and 18,608-B. (CR.I-18,607-
                     B-page 148); (CR.I-18,608-B-page 148)

October 27, 2010     David Martinez filed a motion to dismiss the appeals in
                     18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I-
                     18,608-B-page 149)

                                    10
October 28, 2010     Seventh Court of Appeals granted the motion and
                     dismissed the appeal in 18,607-B and 18,608-B. (CR.I-
                     18,607-B-page 149); (CR.I-18,608-B-page 149 )

June 22, 2011        A state habeas writ application was filed challenging the
                     conviction and sentence in 18,607-B and 18,608-B. (CR.I-
                     18,607-B-page 149); (CR.I-18,608-B-page 149)

September 21, 2011   Texas Court of Criminal Appeals denied the state habeas
                     writ application without written order in 18,607-B and
                     18,608-B. (CR.I-18,607-B-page 149); (CR.I-18,608-B-page
                     149)

June 3, 2012         Appellant filed an additional pro se state habeas writ
                     application challenging his conviction and sentence in
                     18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I-
                     18,608-B-page 149)

August 1, 2012       Texas Court of Criminal Appeals dismissed the
                     appellant’s writ applications in 18,607-B and 18,608-B as
                     subsequent applications in violation of Article 11.07(4)
                     of the Texas Code of Criminal Procedure. (CR.I-18,607-
                     B-page 149); (CR.I-18,608-B-page 149)

September 1, 2012    Appellant filed a federal habeas writ application in
                     18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I-
                     18,608-B-page 149)

May 1, 2014          Evidentiary hearing was held on the federal writ
                     applications. (CR.I-18,607-B-page 150); (CR.I-18,608-B-
                     page 150)

March 17, 2015       United States District Judge conditionally granted the
                     appellant’s applications for a federal writ of habeas
                     corpus and ordered that his convictions in 18,607-B and
                     18,608-B be vacated unless the appellant is given out of
                     time appeals with the assistance of counsel within 60

                                   11
                  days from the date of order. (CR.I-18,607-B-page 177);
                  (CR.I-18,608-B-page 177)

April 15, 2015    John Bennett appointed as appellate counsel in 18,607-B
                  and 18,608-B. (CR.I-18,607-B-page 144); (CR.I-18,608-B-
                  page 144)

April 23, 2015    John Bennett filed notice of appeal in 18,607-B and
                  18,608-B. (CR.I-18,607-B-page 145); (CR.I-18,608-B-page
                  145)

April 29, 2015    Appellant filed a pro se motion for new trial in each
                  case. (CR.I-18,607-B-page 163); (CR.I-18,608-B-page 163)

August 27, 2015   John Bennett filed his direct appeal in 18,607-B and
                  18,608-B




                                12
                         COUNTERPOINT NO. 1, RESTATED

      THE APPELLANT WAS NOT ASSESSED A $2,000 FINE AFTER SENTENCING.
ALTHOUGH THE APPELLANT PAID OFF A $2,000 FINE WHILE HE WAS ON
DEFERRED PROBATION IN 18,607-B, THE TRIAL JUDGE NEVER REASSESSED THE
$2,000 FINE AFTER ADJUDICATING GUILT AND SUCH FINE WAS NEVER INCLUDED
IN THE WRITTEN JUDGMENT.

STATEMENT OF FACTS:

      The State adopts and incorporates herein by reference for all purposes the

facts set forth in the “Statement of Facts” section of this brief at pages 7-12.

                          SUMMARY OF THE ARGUMENT

      Issue One is based on a complete misrepresentation of the record. The

record in 18,607-B contained no evidence that the appellant was reassessed a

$2,000 fine on or after the March 24, 2010 proceeding (the date the appellant

was adjudicated guilty and given a prison sentence). Although the trial judge

imposed a $2,000 fine when the appellant was placed on deferred probation, the

trial judge never reassessed the $2,000 fine at the March 24, 2010 proceeding

and the written judgment contained no mention of such fine. Additionally, the

bill of costs does not show that the appellant was charged a $2,000 fine after

sentencing. The bill of costs merely shows that a $2,000 fine was charged, but

does not indicate when the fine was charged or when the appellant made

payments to the fine. More importantly, documents obtained from the Randall

                                          13
County District Clerk’s office clearly show that the appellant paid off his $2,000

fine on March 18, 2009 (while he was still on deferred probation). Accordingly,

Issue One is without merit and should be denied.

                                        ARGUMENT

       In Issue One, the appellant alleges that a $2,000 fine was wrongfully

assessed in 18,607-B.1 (Appellant’s Brief at pages 18-20). According to the

appellant, the trial judge failed to orally pronounce this fine at the March 24,

2010 hearing (in which the appellant was adjudicated guilty and sentenced to

twenty years in prison). As support for his allegation, the appellant asserts that

the bill of costs reflects that the appellant continued to be charged the $2,000

fine after sentencing. (Appellant’s Brief at page 18). However, the State submits

that Issue One should be denied because the appellant misrepresents the record

and the claim has no merit.

       In his brief, the appellant argues that a fine which is not orally pronounced

at sentencing (in this case sentencing occurred at the motion to proceed hearing

held on March 24, 2010) is wrongfully assessed and should be deleted from the

judgment. (Appellant’s Brief at pages 19, 21). The appellant cites to Taylor v.

1
  Since the appellant only refers to 18,607-B in his facts and summary of the argument in Issue
One and since the appellant never refers to 18,608-B when discussing Issue One, the State’s
Counterpoint One will focus solely on the proceedings in 18,607-B. (Appellant’s Brief at pages
14, 18, 19-20).
                                              14
State, 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). The appellant’s interpretation

of the law is correct, but he completely distorts the record in order for the Taylor

case to apply to the facts of this case. As will be shown, the Taylor case is

inapplicable to 18,607-B.

      Although the trial judge imposed a $2,000 fine when he placed the

appellant on deferred adjudication community supervision in 18,607-B, the trial

judge never reassessed a $2,000 fine after adjudicating guilt on March 24, 2010.

(CR.I-18,607-B-pages 11-16, 19-23; 118-119). The fine was not orally reassessed

at the March 24, 2010 proceeding and the written judgment contained no

mention of such fine. (CR.I-18,607-B-page 118); (RR.IV-105-106). In fact, the term

“N/A” was specifically stated under the section ordering a fine in the written

judgment. (CR.I-18,607-B-page 118); (RR.IV-105-106). Obviously, based on these

excerpts from the record, the trial judge never (by mere intention or otherwise)

reassessed a $2,000 fine on or after March 24, 2010 in 18,607-B. Accordingly,

Taylor does not apply to the facts of this case.

      In making his argument, the only evidence the appellant relies on to

support his contention that he was charged a $2,000 fine after sentencing was a

bill of costs dated August 24, 2015. (Appellant’s Brief at page 14 and Appendix F).

However, the bill of costs dated August 24, 2015 merely shows that the appellant

                                         15
was charged a $2,000 fine in 18,607-B and that he paid off such fine. (Appellant’s

Brief at Appendix F). The bill of costs does not state when the $2,000 fine was

assessed or on what dates the appellant made payments to the fine. Likewise,

none of the bill of costs contained in the record show that the appellant was

charged a $2,000 fine after sentencing. (CR.I-18,607-B-page 138); (SCR.I-18,607-B

at page 29). The appellant has drastically overreached and misrepresented the

record by making the following assertion—the bill of costs shows that he was

charged the $2,000 fine after sentencing. (Appellant’s Brief at pages 18-19).

      Instead of overreaching, the appellant or his counsel should have requested

a payment transaction detail and/or payment receipts from the Randall County

District Clerk’s office in order to ascertain when the $2,000 fine was charged and

paid off. By doing so, the appellant and his counsel would have realized that the

appellant was charged the $2,000 fine on July 26, 2007 and paid off the fine on

March 18, 2009 (while he was still on deferred probation). (SCR.-I-18,607-B-pages

30-43; 44-51). It is reasonable to deduce from the record that the trial judge did

not reassess the $2,000 fine in 18,607-B because the appellant had already paid it

off prior to the March 24, 2010 proceeding. Accordingly, the allegations in Issue

One are frivolous, meritless, and should be denied.




                                        16
                         COUNTERPOINT NO. 2, RESTATED

      THE APPELLANT FAILED TO PRESERVE ISSUE TWO FOR APPELLATE REVIEW.

STATEMENT OF FACTS:

      The State adopts and incorporates herein by reference for all purposes the

facts set forth in the “Statement of Facts” section of this brief at pages 7-12.

                          SUMMARY OF THE ARGUMENT

      The appellant failed to preserve Issue Two for appellate review. In this

regard, the appellant had four opportunities to raise his as-applied constitutional

challenge regarding Section 133.102 of the Texas Local Government Code to the

trial judge and failed to do so. Hence, Issue Two was not preserved for appellate

review and should be denied.

                                    ARGUMENT

                  Failure to Preserve Error for Appellate Review

      In Issue Two, the appellant alleges that Section 133.102(e)(7) of the Texas

Local Government Code is unconstitutional as applied to him. (Appellant’s Brief

at pages 20-33). The appellant specifically asserts that he should not be required

to pay the portion of the $133 consolidated court cost assessed in 18,607-B and

18,608-B that was dedicated to the “operator’s and chauffeur’s license” (which

constitutes 11.1426 percent or $14.82 in each case). TEX. GOVT. CODE,

                                          17
§133.102(e)(7); (Appellant’s Brief at pages 20-33). However, the appellant did not

preserve Issue Two for appellate review since he failed to present this claim to the

trial judge.

       Any constitutional challenge to §133.102 of the Texas Local Government

Code must be raised to the trial judge or it is not preserved for appellate review.

See Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App. 2009); Wyatt v. State,

268 S.W.3d 270 (Tex.App.—Amarillo 2008, no pet.); Johnson v. State, 2015 WL

5025653 (Tex.App.—Houston [14th Dist.] 2015) (not designated for publication);

Guerrero v. State, 2015 WL 2266247 (Tex.App.—Houston [1st Dist.] 2015) (not

designated for publication); Thias v. State, 2014 WL 6556530 (Tex.App.—Amarillo

2014) (not designated for publication). In this case, the appellant attempts to

distinguish the Thias case based on the fact that it involved a facial challenge (as

opposed to an as-applied challenge). (Appellant’s Brief at page 22). However, this

Court specifically rejected such a distinction in Thias by stating it “matters not”.

Id. at page 2. Regardless of whether the constitutional challenge to §133.102

involves a facial or an as-applied challenge, the issue must first be raised to the

trial judge. Id.

       Additionally, the appellant attempts to bypass the preservation issue by

arguing that he never had an opportunity to present Issue Two to the trial judge.

                                        18
The appellant argues that he did not have an opportunity to inform the trial judge

about the $133 consolidated court cost because it was not included in a bill of

costs until after sentencing and no one made appellant or his counsel aware of

the $133 consolidated court cost. See (Appellant’s Brief at pages 21-23). Contrary

to the appellant’s argument, the State submits that the appellant or his counsel

could have easily learned about the $133 consolidated court cost by requesting a

transaction detail or a current bill of costs from the Randall County District Clerk’s

office.2 The State also submits that the appellant had four opportunities to raise

the as-applied constitutional challenge in Issue Two to the trial judge throughout

the proceedings in 18,607-B and 18,608-B and failed to do so.

First Opportunity to Raise Issue to Trial Judge

       The first opportunity to raise Issue Two to the trial judge arose after the

appellant was placed on deferred probation (on July 26, 2007) in 18,607-B and

18,608-B. (CR.I-18,607-B-pages 11-16, 18-23); (CR.I-18,608-B-at pages 11-16, 18-

23). In both cases, a bill of costs dated August 13, 2007 reflects that the appellant

was charged a $133 consolidated court cost. (SCR.I-18,607-B-pages 28; 44-51);

2
    The appellant or his counsel should have known about the $133 consolidated court cost
because the appellant was directed in the order placing him on deferred probation in 18,607-B
and 18,608-B to set up payment arrangements for his fines and court costs at the Randall
County District Clerk’s office. (CR.I-18,607-B-page 20); (CR.I-18,608-B-page 20). The appellant
or his attorney could have easily obtained a transaction detail or a current bill of costs reflecting
the $133 consolidated court cost while making such payment arrangements.
                                                 19
(SCR.I-18,608-B-at pages 28; 34-38). Since the bill of costs is dated August 13,

2007, a reasonable deduction could be made that it was available for the

appellant or his counsel to view eighteen days after the appellant was placed on

deferred probation. Pursuant to Rules 21.4(a) and 22.3 of the Texas Rules of

Appellate Procedure, the appellant still would have had twelve days after the bill

of costs was made available to file a motion for new trial or a motion in arrest of

judgment (i.e., the deadline for the filing of these motions is thirty days from the

date the appellant was placed on deferred probation). By filing one of these

motions in 18,607-B and 18,608-B by the required due date, the trial judge could

have retained authority to reconsider the assessment of the $133 consolidated

court cost. See Guerrero v. State, supra. A review of the record, however, shows

that no such motions were ever filed within this time period. Hence, the appellant

had the opportunity to raise the constitutional challenge in Issue Two to the trial

judge in 2007 and failed to do so.

Second Opportunity to Raise Issue to Trial Judge

      The second opportunity to raise Issue Two to the trial judge arose during

the motion to proceed hearing in 18,607-B and 18,608-B (which was held on

March 24, 2010). (RR.IV-6-106). As stated previously, the August 13, 2007 bill of

costs in 18,607-B and 18,608-B contained the $133 consolidated court cost.

                                        20
(SCR.I-18,607-B-page 28); (SCR.I-18,608-B-page 28). The appellant was obviously

aware of the consolidated court costs by the March 24, 2010 hearing since these

costs were contained in the August 13, 2007 bill of costs and since the appellant

had already paid off all of the $133 consolidated court cost in 18,607-B by March

18, 2009.3 (CR.I-18,607-B-pages 11-16, 19-23); (CR.I-18,608-B-pages 11-16, 19-23);

(SCR.I-18,607-B-pages 28; 29; 30-43; 44-51); (SCR.I-18,608-B-page 28). Hence, the

appellant had the opportunity to raise the as-applied constitutional challenge in

Issue Two to the trial judge at the March 24, 2010 proceeding and again failed to

do so.

Third Opportunity to Raise Issue to Trial Judge

         The third opportunity to raise Issue Two to the trial judge arose after the

March 24, 2010 proceeding. (RR.IV-68; 105-106). As established above, the

appellant was obviously aware by March 24, 2010 that a $133 consolidated court

cost was assessed in each case. Pursuant to Rules 21.4(a) and 22.3 of the Texas

Rules of Appellate Procedure, the trial judge would have had adequate time to

reconsider his ruling (including the assessment of a $133 consolidated court cost)

if the appellant had filed a motion for new trial or a motion in arrest of judgment

3
   The record reflects that the appellant did not pay the fines and court costs in 18,608-B until
after the March 24, 2010 proceeding. (SCR.I-18,608-B-page 28-29; 30-33; 34-38). The appellant
obviously paid off the fines and court costs in 18,607-B before he began paying off the fines and
court costs in 18,608-B.
                                               21
within thirty days after he was adjudicated guilty and sentenced to twenty years

in prison. See Guerrero v. State, supra. Although appellate counsel filed a motion

for new trial in 18,607-B and 18,608-B within thirty days after each sentence was

imposed, he failed to raise the as-applied constitutional complaint in the motions

for new trial. (CR.I-18,607-B-page 120-125); (CR.I-18,608-B-pages 120-125). The

motions for new trial were eventually overruled by operation of law. Appellate

counsel never filed a motion in arrest of judgment in either case within the

designated time period. Hence, the appellant had another opportunity in 2010 to

raise the constitutional challenge in Issue Two to the trial judge and failed to do

so.

Fourth Opportunity to Raise Issue to Trial Judge

      The fourth and final opportunity to raise Issue Two to the trial judge arose

in 2015. In 2011, the appellant filed state habeas writ applications challenging his

conviction and sentence in 18,607-B and 18,608-B. (CR.I-18,607-B-page 149);

(CR.I-18,608-B-page 149). The Texas Court of Criminal Appeals denied these writ

applications without written order. (CR.I-18,607-B-page 149); (CR.I-18,608-B-page

149). On September 1, 2012, the appellant filed federal habeas writ applications

in 18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I-18,608-B-page 149).

The United States District judge conditionally granted the appellant’s federal writ

                                         22
applications on March 17, 2015 and ordered that the convictions in 18,607-B and

18,608-B be vacated unless the appellant is afforded an out of time appeal with

assistance of counsel within 60 days from the date of the order. (CR.I-18,607-B-

page 177); (CR.I-18,608-B-page 177). On April 15, 2015, the trial judge appointed

John Bennett to represent the appellant on appeal in 18,607-B and 18,608-B. The

State submits that Mr. Bennett could have filed a motion for new trial or a motion

in arrest of judgment raising the constitutional complaint in Issue Two within

thirty days after he was appointed as appellate counsel. See Rules 21.4(a) and

22.3 of the Texas Rules of Appellate Procedure. No such motions were ever filed

by Mr. Bennett within this thirty day time period. Although the appellant filed pro

se motions for new trial on April 29, 2015, he failed to raise the as-applied

constitutional complaint asserted in Issue Two in his pro se motions. (CR.I-18,607-

B-page 163); (CR.I-18,608-B-page 163). Hence, the appellant had this final

opportunity in 2015 to raise Issue Two to the trial judge and failed to do so. Since

the appellant failed on four separate occasions to raise the as-applied

constitutional challenge to the trial judge, Issue Two was not preserved for

appellate review and should be denied.

      Even though the appellant failed to preserve Issue Two for appellate

review, other avenues exist in which the appellant could still seek to raise his as-

                                         23
applied constitutional claim regarding §133.102. The appellant could raise his

complaint in a habeas corpus proceeding or in a separate declaratory action. See

Thomas v. State, 445 S.W.3d 288, 291 (Tex.App.—Houston [1st Dist.] 2013, no

pet.). However, as previously stated, the appellant’s failure to present the

complaint to the trial judge on four prior occasions prevents him from raising it

now on direct appeal.

      In sum, the State submits that appellant or his counsel should have

obtained payment records (i.e., a transaction detail, payment receipts, and/or a

bill of costs) from the Randall County District Clerk’s office in 18,607-B and

18,608-B before writing his direct appeal. If these records were obtained, it

would have been apparent that the content of this brief is frivolous.




                                        24
                                      PRAYER

      WHEREFORE, Premises Considered, the State prays that the relief

requested by the appellant be denied and that this Honorable Court affirm the

judgment of the trial judge in Cause Nos. 18,607-B and 18,608-B.

                                              Respectfully submitted,

                                              JAMES A. FARREN
                                              CRIMINAL DISTRICT ATTORNEY
                                              RANDALL COUNTY, TEXAS


                                              s/ Kristy Wright
                                              KRISTY WRIGHT
                                              SBN: 00798601
                                              kwright@randallcounty.org
                                              Assistant Criminal District Attorney
                                              Randall County Justice Center
                                              2309 Russell Long Blvd., Suite 120
                                              Canyon, Texas 79015
                                              (806) 468-5570
                                              FAX (806) 468-5566


                          CERTIFICATE OF COMPLIANCE

      I hereby certify that the word count of this entire brief is 4,664 words.


                                              s/ Kristy Wright
                                              KRISTY WRIGHT




                                         25
                            CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing State’s Brief has been

served on John Bennett, Attorney for Appellant (Michael Don Denton), P.O. Box

19144, Amarillo, Texas 79114, by depositing same in the United States mail,

postage prepaid on this 18th day of September, 2015.



                                                 s/ Kristy Wright
                                                 KRISTY WRIGHT




                                       26
