Gregorio Guerrero v. State ( 2015 )

Opinion issued May 14, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00821-CR
NO. 01-13-00822-CR
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GREGORIO GUERRERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case Nos. 1172094 & 1172095
MEMORANDUM OPINION
Appellant Gregorio Guerrero was charged by indictment with aggravated
robbery with a deadly weapon and evading arrest. He pleaded guilty, and the trial
court deferred his adjudication. Three years later, the State filed a motion to
adjudicate Guerrero’s guilt, alleging that he had violated his community
supervision conditions. After conducting a hearing on the State’s motion, the trial
court found the State’s allegations true and sentenced Guerrero to 20 years’
confinement for the aggravated robbery charge and two years’ confinement for the
evading arrest charge, with the sentences to run concurrently. In two issues,
Guerrero contends that the trial court erred in (1) unconstitutionally interfering
with plea negotiations, which violated his right to due process and to have the
proceeding adjudicated by a neutral and detached judge, and (2) assessing an
unconstitutional court cost against him because the “consolidated court cost”
authorized by Texas Local Government Code section 133.012(a)(1) violates the
Texas Constitution. We affirm. 1
Background
The State moved to adjudicate Guerrero’s guilt on his aggravated robbery
and evading arrest charges in March 2013. The trial court conducted a hearing on
the State’s motion. At the beginning of the hearing, the trial court asked Guerrero
whether he and the State had reached a plea bargain. The following exchange
occurred:
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.
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THE COURT: Okay. All right. I remember the Court did offer you - - make
you give a recommendation or give you a recommended offer; is that correct?
APPELLANT’S COUNSEL: That is correct.
THE COURT: What was the offer?
APPELLANT’S COUNSEL: Previous offer by the State was ten years.
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.
THE COURT: Okay. So do you understand that going forward, the State has
witnesses and this Court is going to hear all of the testimony. And you received
probation on a first degree felony aggravated robbery with a deadly weapon, which
the maximum amount you can receive is ninety-nine years, or life, in prison. You
understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. And is it your desire to reject the State’s offer of ten
years and go forward with the hearing?
THE DEFENDANT: Yes, ma’am.
Following that exchange, the State presented its evidence showing that
Guerrero violated his community supervision conditions. The trial court found all
of the State’s allegations true and sentenced Guerrero to 20 years’ confinement for
the aggravated robbery charge and two years’ confinement for the evading arrest
charge, with the sentences to run concurrently. That same day, on August 29,
2013, the trial court entered judgment and assessed $304 in court costs for the
aggravated robbery conviction and $334 in court costs for the evading arrest
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conviction. Approximately 20 days later, on September 19 and 20, the district
clerk issued a bill of cost for each conviction, which assessed $133 as a
“consolidated court cost.” Guerrero did not file a motion for new trial.
Guerrero failed to preserve any complaint regarding plea negotiations
In his first issue in appellate cause number 01-13-00821-CR, Guerrero
contends that the trial court violated his right to due process and to have his case
adjudicated by a neutral and detached judge because the trial court interjected itself
in the plea-bargaining process. The State contends that Guerrero failed to preserve
this issue. We agree with the State.
Generally, to preserve a complaint for appellate review, a party must make a
timely and specific request, objection, or motion in the trial court and obtain an
adverse ruling from the 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, or otherwise, are forfeited by failure
to comply with Rule 33.1(a). Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim.
App. 2004). The improper intrusion by a trial court into the plea-bargaining
process is not systemic error and may not be brought for the first time on appeal.
Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).
We conclude that Guerrero failed to preserve his complaint that the trial
court unconstitutionally interfered with the plea-bargaining process. At the
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beginning of the hearing, the trial court asked Guerrero whether he and the State
had reached a plea bargain. The trial court stated “I remember the Court did offer
you – make you give a recommendation or give you a recommended offer; is that
correct?” Although that statement is unclear, the record makes clear that the trial
court was referring to a plea offer made by the State. Guerrero’s trial counsel
stated that the “[p]revious offer by the State was ten years.” Additionally, when
the trial court asked Guerrero if he wished to reject the plea and continue with the
hearing, he answered “Yes, ma’am.” According to Guerrero, the trial court’s
reference to “the court’s offer” constituted an improper interjection in the plea-
bargaining process, which violated his right to due process and to have the
proceeding adjudicated by a neutral and detached judge.
However, Guerrero did not complain to the trial court that the court
improperly interjected itself into the plea-bargaining process. Likewise, Guerrero
made no objection that the trial 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 itself into the plea-bargaining
process. See TEX. R. APP. P. 33.1(a); Anderson v. State, 301 S.W.3d 276, 280
(Tex. Crim. App. 2009) (“[O]ur prior decisions make clear that numerous
constitutional rights, including those that implicate a defendant’s due process
rights, may be forfeited for purposes of appellate review unless properly
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preserved.”); Moore, 295 S.W.3d at 333 (holding appellant failed to preserve issue
because he did not object to trial court’s allegedly improper intrusion into plea-
bargaining process).
We overrule Guerrero’s first issue in appellate cause number 01-13-00821-
CR.
Constitutionality of the “comprehensive rehabilitation” fund in Local
Government Code section 133.102
In his second issue in appellate cause number 01-13-00821-CR and sole
issue in appellate cause number 01-13-00822-CR, Guerrero contends the
“comprehensive 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, collecting funds for the “comprehensive
rehabilitation” fund violates the separation of powers clause of the Texas
Constitution. See TEX. CONST. art. II, § 1.
A. Standard of Review
When reviewing a constitutional challenge, we presume that the statute is
valid and that the legislature was neither unreasonable nor arbitrary in enacting it.
State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Curry v. State, 186
S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2005, no 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
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the legislative intent and is not repugnant to the Constitution.” Curry, 186 S.W.3d
at 42. When statutory authority exists to sustain a constitutional reading of a
statute, we favor that interpretation over any other. See id.; see also Ex parte
Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (en banc) (“Every
reasonable intendment and presumption will be made in favor of the
constitutionality and validity of a statute, until the contrary is clearly shown.”)
(citation omitted); Oakley v. State, 807 S.W.2d 378, 381 (Tex. App.—Houston
[14th Dist.] 1991) (“If a statute is capable of two constructions, one of which
sustains its validity, this court will uphold the interpretation that sustains its
validity.”), aff’d, 830 S.W.2d 107 (Tex. Crim. App. 1992).
The party challenging the statute bears the burden of 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 challenger
must establish that no set of circumstances exists under which the statute will be
valid.” Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (en banc).
B. Applicable Law
Section 133.102(a)(1) of the Texas Local Government Code mandates that a
person convicted of a felony must pay $133 “as a court cost, in addition to all other
costs.” TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2014). The
collected amounts must be remitted to the state comptroller, who in turn must
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allocate this money to 14 specified “accounts and funds.” The statute provides that
9.8218 percent of the $133 cost is allocated to the “comprehensive 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 the
collected amounts. Id. Additionally, section 133.058 permits a municipality or
county to retain 10 percent of collected amounts as a “service fee.” Id.
§ 133.058(a) (West Supp. 2014).
C. Analysis
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 “comprehensive rehabilitation,” which is unrelated to any function of the
courts. Guerrero contends that he may raise his constitutional challenge to the
court cost for the first time on appeal. We agree with the State that Guerrero may
not assert his constitutional claim for the first time on appeal and he therefore
waived any constitutional challenge to Local Government Code section 133.102.
Ordinarily, to preserve error, there must be a timely, specific objection and
an adverse ruling by the trial court. TEX. R. APP. P. 33.1; see Lozano v. State, 359
S.W.3d 790, 823 (Tex. App.—Fort Worth 2012, pet. ref’d) (“To be timely, an
objection must be made as soon as the basis for the objection becomes apparent.”).
Except for complaints involving systemic requirements, or rights that are waivable
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only, all other complaints, whether constitutional, statutory, or otherwise, are
forfeited by failure to comply with Rule 33.1(a). Mendez v. State, 138 S.W.3d 334,
342 (Tex. Crim. App. 2004).
“Examples of rights that are waivable-only include the rights to the
assistance of counsel, the right to trial by jury, and a right of appointed counsel to
have ten days of trial preparation which a statute specifically made waivable-only.”
Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (en banc).
“Absolute systemic requirements [that may not be waived] include jurisdiction of
the person [and] the subject matter, and a penal statute’s being in compliance with
the Separations of Powers Section of the state constitution.” Id. Violation of these
non-waivable absolute systemic rights constitutes fundamental error. McLean v.
State, 312 S.W.3d 912, 916 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
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. See Salinas v. State, 426
S.W.3d 318, 325–26 (Tex. App.—Houston [14th Dist.] 2014, pet. granted)
(analyzing constitutional challenge where appellant raised issue of constitutionality
of Local Government Code section 133.102 in motion for new trial and motion in
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arrest of judgment); Peraza v. State, -- S.W.3d --, Nos. 01-12-00690-CR & 01-12-
00691-CR, 2014 WL 7476214, at *1 (Tex. App.—Houston [1st Dist.] Dec. 30,
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., 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); 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).
An exception arises if the appellant raises a separation of powers challenge
to a penal statute for the first time on appeal. See Aldrich, 104 S.W.3d at 895.
Guerrero, however, does not challenge a penal statute. Rather, he contends that
Local Government Code section 133.102 violates the separation of powers clause
because it improperly allocates funds to the comprehensive rehabilitation fund,
which amounts to an unconstitutional tax. See id. (absolute systemic requirements
include penal statute’s compliance with separation of powers clause of Texas
Constitution). Accordingly, we conclude that Guerrero failed to preserve his
separation of powers argument. 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) (appellant’s failure to preserve
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issue in trial court forfeited argument on appeal that his form of community
supervision violated separation of powers because he did not contend that a penal
code section violated separation of powers).
In support of his position that he may raise his separation of powers
argument for the first time on appeal, Guerrero relies on Cardenas v. State, 423
S.W.3d 396 (Tex. Crim. App. 2014) and Johnson v. State, 423 S.W.3d 385 (Tex.
Crim. App. 2014), in which the Court of Criminal Appeals held that a defendant
may challenge the sufficiency of the evidence to support the assessment of court
costs for the first time on appeal. The Court of Criminal Appeals explained that
“[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, 423 S.W.3d at 399; see also 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
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
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complaints involving systemic requirements and non-waivable rights,
constitutional complaints must be preserved in trial court).
We overrule Guerrero’s second issue in appellate cause number 01-13-
00821-CR and sole issue in appellate cause number 01-13-00822-CR.
Conclusion
We affirm the judgments of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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