Burg, James Allan Ii

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0527-18
JAMES ALLAN BURG, II, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
MONTGOMERY COUNTY
N EWELL, J., delivered the opinion of the Court in which
H ERVEY, R ICHARDSON, K EEL, W ALKER and S LAUGHTER, J J., joined.
K EASLER, J., filed a concurring opinion in which K ELLER, P.J., and
Y EARY JJ., joined.
Appellant, James Allan Burg, II, was charged with, and convicted of,
driving while intoxicated with a BAC of 0.15 or more. 1 During the
sentencing hearing, the trial court ordered that Appellant’s driver’s license
be suspended for one year. Appellant did not object despite having the
1
TEX . PENAL CODE § 49.04(a), (d) (West 2014).
Burg — 2
opportunity to do so. Appellant argued for the first time on appeal that
this suspension was not authorized and therefore he could bring his claim
as an illegal sentence. So, the question before us is this: Can an
appellant complain for the first time on appeal about an unauthorized
driver’s license suspension if he did not object to the imposition of the
suspension in the first place? No. A license suspension is not
“punishment” in a case, just as court costs aren’t. Therefore, even an
unauthorized license suspension cannot be characterized as an “illegal
sentence.” Under these circumstances we follow ordinary preservation
of error requirements. Because Appellant had the opportunity to object
and did not do so, he has not preserved his appellate claim for review.
We affirm.
Background Facts
DPS Trooper Matthew Cline stopped Appellant late one night on I-45
for failing to dim his high-beam lights for oncoming traffic. Cline
suspected Appellant had been drinking, conducted field sobriety tests,
and arrested him for driving while intoxicated. Appellant refused to
provide a blood sample. As a result, Cline gave Appellant notice of the
Burg — 3
180-day ALR suspension,2 took physical possession of his driver’s
license, and issued him a temporary driving permit.3
Cline obtained a warrant for Appellant’s blood. The BAC test
revealed Appellant had an alcohol concentration of 0.212. On this
evidence a jury convicted Appellant of driving while intoxicated, a Class
A misdemeanor in this case given the proof of an alcohol concentration
level of 0.15 or more.4 The jury assessed punishment at one year
confinement in the Montgomery County Jail, but recommended
community supervision. The trial court placed Appellant on eighteen
months’ community supervision, with a license suspension:
[STATE]: Any driver’s license suspension?
THE COURT: Yes. We’re going have to have a
suspension.
[DEFENSE]: Run concurrent with the ALR suspension.
THE COURT: It will, to run concurrent with the ALR
suspension. Let’s do the driver’s license
suspension for one year.
2
This is the administrative driver’s license suspension triggered by a
person’s refusal of a peace officer’s request to submit to the taking of a
specimen. TEX . TRANSP. CODE § 724.035 (West 2013).
3
TEX . TRANSP. CODE §§ 724.032–.035 (West 2013).
4
TEX . PENAL CODE § 49.04(d) (West 2014).
Burg — 4
[DEFENSE]: One year driver’s license suspension?
THE COURT: Yes, sir.
The trial court formally sentenced Appellant, mentioning, and
memorializing in the judgment, the one-year jail term suspended for
eighteen months, a $1,500 fine, court costs of $402.10, and the one-year
driver’s license suspension to “run concurrent with the ALR suspension,
if any.”
The conditions of community supervision include two requirements
mandated by Article 42.12 § 13, as it relates to a first-time offender like
Appellant, whose BAC was 0.15 or more: participation in a DWI education
program and use of an “ignition interlock device” while driving.5 Unlike
the judgment, the conditions do not include the driver’s license
suspension.
On direct appeal, Appellant acknowledged the general rule that a
person convicted of DWI is subject to an automatic driver’s license
suspension.6 But, he said, a license suspension cannot be imposed when,
5
TEX . CODE CRIM . PROC . 42.12 § 13 (h), (i) (West 2014). Paragraph 21
orders Appellant to successfully complete, on time, the education program;
Paragraph 28 orders Appellant to install an ignition interlock device in his
vehicle, and prohibits him from operating any vehicle that is not equipped
with a device.
6
TEX . TRANSP. CODE §§ 521.341(3), 521.344(a) (West 2013).
Burg — 5
as here, a first-time DWI offender is placed on community supervision
and ordered to complete a DWI education program.7 Appellant argued
that the trial court was without authority to restrict his operating
privileges outside of the mandatory suspension scheme imposed by the
Code.
In doing so, he likened his case to that of Love v. State.8 In that
case, the Austin Court of Appeals held that the “comprehensive and
exclusive statutory scheme for treatment of first-time DWI offenders”
supported the conclusion that a trial court could not suspend the license
of a first-time DWI offender placed on probation and ordered to complete
a DWI education program.9 Thus, argued Appellant, the trial court’s
judgment suspending his license lacked statutory authority.
Because Appellant relied on Love—where the suspension was a
condition of probation—the State understood Appellant to be complaining
about a condition of probation. Citing Speth v. State, the State argued
that Appellant’s failure to object to the license-suspension condition at
7
TEX . TRANSP. CODE § 521.344(d) (West 2013).
8
702 S.W.2d 319 (Tex. App.—Austin 1986, no pet.).
9
Id. at 321.
 Burg — 6
trial meant that he failed to preserve his complaint for review.10
Appellant, in a reply brief, argued that the State misunderstood his
argument because the license suspension here was part of the sentence
rather than a condition of community supervision. “Here, the trial court
went outside the range of punishment established by the Legislature in
section 521.344 of the Texas Transportation Code.” 11 And, the issue of
whether the trial court levied an unauthorized sentence is not subject to
forfeiture by failing to object in the trial court.12
Even so, the court of appeals characterized the issue as whether
“the trial court erred by imposing a one-year driver's license suspension
as a condition of his community supervision.” 13 The court held the
complaint was barred on appeal under Speth because Appellant had an
opportunity to object to the “alleged condition” and did not.14
10
Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999).
11
Appellant’s Reply Br. 5.
12
Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014).
13
Burg v. State, 09-16-00200-CR, 2018 WL 1747393, at *7 (Tex.
App.—Beaumont Apr. 11, 2018).
14
Id. Appellant filed a motion for rehearing, again, clarifying that his
argument was that the trial court went outside the “legislatively mandated
penalties” when suspending his license. “The trial court was not legally
authorized to suspend Burg’s driver’s license, and such an error may be
raised for the first time on appeal.” Appellant’s Mot. for Reh’g 3.
Burg — 7
We granted review to settle this preservation issue. The State now
agrees with Appellant that the license suspension was not a condition of
community supervision, but disagrees that it was part of the sentence.
Rather, the State argues, the suspension was a “collateral consequence”
of conviction. And the complaint about whether or not it was authorized
was forfeited by Appellant’s failure to object.
As discussed below, we agree with the State that the trial court's
suspension is not a part of the sentence, at least not a part of the
sentence that can render a sentence "illegal"—because it is not
punishment. Even if we assume that the trial court's imposition of a
license suspension was unauthorized, it did not render the sentence
"illegal."
Preservation
Rule 33.1 provides that a contemporaneous objection must be made
to preserve error for appeal.15 Rule 33.1 applies to category-three
“forfeitable” Marin rights and requirements.16 It does not apply to
category-one “absolute” or category-two “waivable-only” Marin rights and
requirements—ones that are fundamental to the proper functioning of our
15
TEX . R. APP. PROC . 33.1(a) (West 2014).
16
Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993).
Burg — 8
adjudicatory system.17 But not all rights and requirements fit neatly into
one of Marin’s three categories.18 If what looks at first glance to be a
forfeitable right or requirement cannot actually be affirmatively insisted
upon by a party,19 or acted on by a trial court,20 that right or requirement
cannot logically be subject to the general rule.
We have already held in Mizell v. State that the right to be
sentenced legally is an absolute or waivable-only right.21 The
contemporaneous-objection requirement does not bar review of a claim
that a sentence that is illegal due to the fact that it is outside the
maximum or minimum range of punishment.22 So we must determine
whether the license suspension provision in this case qualifies as an illegal
sentence.
17
Grado v. State, 445 S.W.3d 736, 738–39 (Tex. Crim. App. 2014).
18
See, e.g., Proenza v. State, 541 S.W.3d 786, 801 (Tex. Crim. App.
2018) (holding that no objection was necessary to preserve error without
deciding whether right at issue fell within Marin's first or second category of
rights); id. at 805 (Newell, J., concurring).
19
London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
20
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014)
(deciding preservation issue without regard to any Marin classification).
21
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
22
Id. at 806–07.
 Burg — 9
Application
As the parties recognize, the inquiry about whether the
contemporaneous-objection requirement applies should start with
determining the nature of the right at issue. To Appellant, it is the right
to be sentenced legally—an absolute or waivable-only right.23 To the
State, it is the right to be free of an unauthorized collateral consequence
of a criminal conviction—a forfeitable right. The State likens the
suspension to restitution and argues that, “If Rule 33.1 applies to an
erroneous restitution order, it should also apply to an erroneous license
suspension order.” 24
The right at stake here does not fit neatly into one of Marin’s three
categories, particularly because there does not appear to be any “right”
at issue. Appellant does not have any right to be free from a license
suspension given that the act of driving is a privilege not a right.25 In
23
Id. at 806.
24
State’s Br. 13. (citing Idowu v. State, 73 S.W.3d 918, 921–22 (Tex.
Crim. App. 2002) (“If a defendant wishes to complain about the
appropriateness of (as opposed to the factual basis for) a trial court's
restitution order, he must do so in the trial court, and he must do so
explicitly.”)).
25
Schwantz v. Tex. Dept. of Public Safety, 415 S.W.2d 12, 15 (Tex.
1967).
Burg — 10
that regard, Appellant’s claim in this case is similar to a claim regarding
improper court costs where preservation of error turns simply on
whether there was any opportunity to object.26 Further, license
suspensions upon conviction are not a “punishment” that is required in
a judgment as part of a sentence. An unauthorized suspension falls
outside of what can be considered an “illegal sentence.”
Texas Penal Code Section 12.01 addresses punishment generally
and provides that a person “adjudged guilty of an offense under the code
shall be punished in accordance with this chapter and the Code of
Criminal Procedure.”27 Appellant here was convicted of a Class A
misdemeanor. Section 12.21 provides that an “individual adjudged
guilty of a Class A misdemeanor shall be punished by: (1) a fine not to
exceed $4,000; (2) confinement in jail for a term not to exceed one
year; or (3) both such fine and confinement.”28 And of course such a jail
term may be probated.29 Appellant’s one-year jail term suspended for
eighteen months and $1500 fine is punishment “in accordance” with
26
Johnson, 423 S.W.3d at 390.
27
TEX . PENAL CODE § 12.01(a) (West 2014).
28
TEX . PENAL CODE § 12.21 (West 2014).
29
See TEX . CODE CRIM . PRO . art. 42.12 (West 2014).
Burg — 11
Chapter 12 and the Code of Criminal Procedure.
But Section 12.01 also provides that the punishment provisions of
the Penal Code do “not deprive a court of authority conferred by law . .
. to suspend . . . a license or permit . . . or impose any other civil
penalty. The civil penalty may be included in the sentence.” 30
Appellant’s argument is that the license suspension here was “included
in the sentence.” Therefore, according to Appellant, the
contemporaneous-objection requirement doesn’t bar review of his
complaint that it is outside the range of punishment for the crime of
conviction.31
A “sentence” is defined in the Texas Code of Criminal Procedure as
“that part of the judgment . . . that orders that the punishment be
carried into execution in the manner prescribed by law.” 32 The most
current version of Article 42.01 lists twenty-nine things that “shall” be
reflected and another eleven that “should” be reflected in the judgment.
30
TEX . PENAL CODE §12.01(c) (West 2014).
31
Mizell, 119 S.W.3d at 806–07.
32
TEX . CODE CRIM . PROC . § 42.02 (West 2014); Ex parte Pue, 552
S.W.3d 226, 238 (Tex. Crim. App. 2018) (“Mizell simply held that a sentence
that is outside the range of punishment is illegal and may be challenged for
the first time on appeal or habeas.”).
Burg — 12
Nowhere does Article 42.01 list license suspensions as something that
must be reflected in the judgment.
For purposes of our “illegal sentence” jurisprudence we have said
that a sentence “consists of the facts of the punishment itself, including
the date of commencement of the sentence, its duration, and the
concurrent or cumulative nature of the term of confinement and the
amount of the fine, if any.”33 As we explained in State v. Ross:
The plain language [of Article 42.02] . . . indicates that a
sentence is nothing more than the portion of the judgment
setting out the terms of punishment. For example, the
sentence in this case would include the facts that appellant is
to serve sixteen years in the penitentiary beginning July 28,
1995, that his term is concurrent and that he must pay a
$500 fine. It would not incorporate, as the State would have
it, those aspects of the judgment merely affecting those
facts.34
This has been fleshed out in our illegal sentence cases. These things are
clearly “in” the closed curve of things that can make a “sentence” legal
33
State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004). See
also Black’s Law Dictionary (6th Abr. ed. 1983) (“The judgment . . .
imposing the punishment to be inflicted, usually in the form of a fine,
incarceration, or probation.”).
34
State v. Ross, 953 S.W.2d 748, 750 (Tex. Crim. App. 1997).
Burg — 13
or illegal: a term of years; 35 a fine; 36 the fact of shock or regular
probation;37 and enhancements.38 These things are “out”: restitution; 39
an Article 37.07 election for the jury to assess punishment; 40
deadly-weapon findings;41 the terms of community supervision (including
restitution when it is a condition of probation);42 court costs;43 sex-
offender registration;44 and forfeiture of contraband.45
35
Id. See, e.g., TEX . PENAL CODE §§ 12.21–12.35 (setting out
misdemeanor and felony “punishment”).
36
Id.; Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009).
37
State v. Dunbar, 297 S.W.3d 777, 781 (Tex. Crim. App. 2009);
Smith v. State, 789 S.W.3d 590, 592 (Tex. Crim. App. 1990).
38
Donaldson v. State, 476 S.W.3d 433, 439–40 (Tex. Crim. App.
2015); State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004).
39
Burt v. State, 445 S.W.3d 752, 756 (Tex. Crim. App. 2014); Idowu,
73 S.W.3d at 921–22.
40
State v. Baize, 981 S.W.2d 204, 206 (Tex. Crim. App. 1998).
41
Ross, 953 S.W.2d at 751.
42
Speth, 6 S.W.3d at 532; Gutierrez-Rodriguez v. State, 444 S.W.3d
21, 24 (Tex. Crim. App. 2014).
43
Weir, 278 S.W.3d at 365.
44
Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004).
45
Fant v. State, 931 S.W.2d 299, 313–14 (Tex. Crim. App. 1996). But
see Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (Eighth Amendment's
Excessive Fines Clause is an incorporated protection applicable to the States
under the Fourteenth Amendment's Due Process Clause).
Burg — 14
But what about Texas Penal Code Section 12.01(c), saying a
suspension can be “included in the sentence”? The things listed in
12.01(c) are by definition “civil penalties.” And civil penalties are not
punishment unless they’ve been historically regarded as punishment or
they promote the traditional aims of punishment such as retribution and
deterrence.46 License suspensions have not been so regarded.
In Davison v. State, we held that counsel could not allude to the
automatic suspension of the accused's driver's license as a consequence
of conviction because that consequence was not part of the “punishment”
affixed to such offense.47 Suspensions, we agreed, “are not intended as
punishment but are designed solely for the protection of the public in the
use of the highways.”48 At that time, the code described punishment as
46
See Hudson v. United States, 522 U.S. 93, 99–100 (1997) (holding
that if the legislature has indicated an intention to create a civil penalty, a
court analyzing a double jeopardy claim must determine whether the
statutory scheme is nevertheless so punitive in purpose or effect as to
transform what was clearly intended as a civil remedy into a criminal
punishment; emphasizing that “only the clearest proof” will suffice to
override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty); Ex parte Sheridan, 974 S.W.2d 129, 134
(Tex. App.—San Antonio 1998, pet. ref'd) (concluding that Sheridan had not
shown by the “clearest proof” that the cancellation of his alcoholic beverage
license by the TABC was a criminal punishment).
47
313 S.W.2d 883, 886 (Tex. Crim. App. 1958) (op. on reh’g).
48
Id.
Burg — 15
including “forfeiture of civil or political rights.” Because the Texas
Supreme Court, in Gillaspie v. Department of Public Safety, had already
said that driving is a privilege and not a right, we noted that the
forfeiture of a license is the forfeiture of a privilege, rather than forfeiture
of a right.49 As such, it was not considered punishment.50
Nor is it punishment now.51 The legislature has indicated an
intention to create a civil penalty, and this is not the kind of civil penalty
that is so punitive in purpose or effect as to transform what was clearly
intended as a civil remedy into a criminal punishment.52 As the United
States Supreme Court has noted, “Remedial sanctions may be of varying
types. One which is characteristically free of the punitive criminal
49
Id. (citing Gillaspie v. Dep't of Pub. Safety, 259 S.W.2d 177, 182
(Tex. 1953) (“Suspension of driver's license or registration is not the taking
of property. It deprives the operator or owner for a limited time and on
reasonable conditions of the privilege of driving or operating the motor
vehicle on the public highways.”)).
50
Davison, 313 S.W.2d at 887.
51
Grant v. State, 989 S.W.2d 428, 432 (Tex. App.—Houston [14th
Dist.] 1999, no pet.) (automatic suspension of a driver’s license under
Transportation Code Section 521.372, upon conviction for a drug offense,
was not part of the “punishment” for the drug offense of which the
defendant must be admonished in advance of his guilty plea).
52
Hudson, 522 U.S. at 104 (sanctions of monetary penalties and
occupational debarment of petitioners were intended by congress to be civil
sanctions, and they were not “so punitive in form and effect as to render
them criminal despite Congress' intent to the contrary”).
Burg — 16
element is revocation of a privilege voluntarily granted.” 53
The bottom line is that a license suspension is not considered
punishment because it is not incarceration, probation, a fine, or an
enhancement, regardless of whether it is included in the so-called
sentence. So a complaint about it is not really a complaint about an
“illegal sentence.” Since Appellant’s complaint cannot be characterized
as a complaint about an illegal sentence, it does not fall under the Mizell
jurisprudence excepting “illegal sentence” claims from Rule 33.1.
Conclusion
Rule 33.1 requires a contemporaneous objection to preserve error
for appeal. Because Appellant had the opportunity to raise an objection
to the trial court’s order suspending his license, and did not take it, he
did not preserve this issue for appeal. Further, Appellant cannot rely
upon our “illegal sentence” jurisprudence to raise his claim for the first
time on appeal because the license suspension was not part of the
sentence. We affirm the court of appeals.
DELIVERED: January 29, 2020
PUBLISHED
53
Helvering v. Mitchell, 303 U.S. 391, 399 (1938).