Daruis D Weathersby v. State

Motion for Rehearing Denied and Concurring and Dissenting Memorandum
Opinion filed April 13, 2021.
In the
Fourteenth Court of Appeals
NO. 14-19-00339-CR
DARUIS D. WEATHERSBY, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1454223
CONCURRING AND DISSENTING MEMORANDUM OPINION FROM
DENIAL OF MOTION FOR REHEARING
Appellant filed a motion for rehearing contending this court (1) erred in
overruling issue three, in which appellant argued the trial court failed to conduct an
ability-to-pay inquiry in violation of the Code of Criminal Procedure, though the
judgment states that an inquiry was conducted and (2) violated Texas Constitution
article II, section 1, regarding division of powers between the three departments of
government in our disposition of issue three. This court has denied appellant’s
motion for rehearing. I concur in the denial of appellant’s motion for rehearing as
to the issue that was addressed in the court’s opinion. However, I dissent to the
denial of rehearing because the court should have granted appellant’s motion, in
part, to address appellant’s claim of constitutional error occurring for the first time
on appeal.
The Texas Constitution expressly guarantees separated powers among the
three departments of government. Tex. Const. art. II, § 1; Salinas v. State, 523
S.W.3d 103, 106 (Tex. Crim. App. 2017). Article II, section 1 of the Texas
Constitution states:
The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another, and those which are
Judicial to another; and no person, or collection of persons, being of
one of these departments, shall exercise any power properly attached
to either of the others, except in the instances herein expressly
permitted.
Tex. Const. art. II, § 1. This section ensures that the powers granted to one
governmental department may be exercised only by that department, to the
exclusion of the other departments. Ex parte Lo, 424 S.W.3d 10, 28 (Tex. Crim.
App. 2013).
When one department of government assumes or is delegated a power more
properly attached to another department, that assumption or delegation of power
violates the separation-of-powers provision. Salinas, 523 S.W.3d at 106–07. “The
provision is also violated when one branch unduly interferes with another branch
so that the other branch cannot effectively exercise its constitutionally assigned
powers.” Safety Nat. Cas. Corp. v. State, 273 S.W.3d 157, 162 (Tex. Crim. App.
2008) (quoting Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App.
2
1990)). Though appellant claims that this court has violated separation of powers
by relying on the text of a standardized felony judgment form promulgated by the
Office of Court Administration, he does not develop this argument. See Tex. Code
Crim. Proc. Ann. art. 42.01, § 4. Appellant recites the statutory language requiring
courts to inquire whether a defendant has sufficient resources or income to
immediately pay all or part of the fine and costs assessed. See Tex. Code Crim.
Proc. Ann. art. 42.15(a-1). Appellant then describes the recital in the judgment as
merely “boilerplate language” from the Office of Court Administration’s form.
However, appellant does not argue that this court has assumed a power more
properly attached to another department of government, nor does appellant support
his argument that this court’s opinion unduly interferes with another department so
that the other department cannot effectively exercise its constitutionally-assigned
power. Appellant has not established a violation of Texas Constitution article II,
section 1, and is therefore not entitled to any of the relief requested.1
While I agree that the court’s February 18, 2021 opinion and judgment
should remain unchanged, it is important for this court to address issues of error
that parties contend occur for the first time on appeal. This court has the duty to
address every issue raised and necessary to final disposition of the appeal. Tex. R.
App. P. 47.1. Because this court refuses to address appellant’s claim of
constitutional error occurring for the first time in this court’s opinion, I dissent to
that portion of the denial of rehearing.
1
“The office of court administration is an agency of the state and operates under the
direction and supervision of the supreme court and the chief justice of the supreme court.” Tex.
Gov’t Code Ann. § 72.011(a). Appellant does not specifically argue that the Office of Court
Administration is a part of either the legislative or executive departments of government.
3
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
Do Not Publish—Tex. R. App. P. 47.2(b)
4