Guerrero, Gregorio

PD-0665-15 & PD-0666-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/14/2015 2:00:26 PM
Accepted 7/15/2015 4:35:31 PM
ABEL ACOSTA
PD 0665-15 & 666-15 CLERK

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS
_______________________________________________

GREGORIO GUERRERO,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.
_______________________________________________

On Petition for Discretionary Review from the
First Court of Appeals in Nos. 01-13-00821-CR
and 01-13-00821-CR affirming the conviction
in cause numbers 1172094 & 1172095,
From the 339th District Court of Harris County, Texas
_______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_______________________________________________

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas

JANI MASELLI WOOD
Assistant Public Defender
Harris County, Texas
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
July 15, 2015 Phone: (713) 368-0016
Fax: (713) 368-9278
Counsel for Appellant
July 14, 2015
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mr. Gregorio Guerrero
TDCJ# 01893089
Clemens Unit
11034 Hwy 36
Brazoria, TX 77422

TRIAL PROSECUTOR: Mr. Joshua Phanco
APPELLATE PROSECUTOR Ms. Carly Dessauer
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mr. Brian Middleton
7322 SW Fry #1980
Houston, Texas 77074

PRESIDING JUDGE: Hon. Maria T. Jackson, Presiding Judge
339th District Court
Harris County, Texas
1201 Franklin, 14th floor
Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002

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 TABLE OF CONTENTS
PAGE

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Court of Appeals determined that the constitutional challenge to
the comprehensive rehabilitation court cost could not be raised for the
first time on appeal. The basis for the challenge was not available to Mr.
Guerrero until three weeks after the judgment was signed. Did the
Court of Appeals err in refusing to consider a challenge that was only
available post-trial, in derogation of Landers v. State?. . . . . . . . . . . . . . . . . . . 7

Reasons for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . 8
The error was preserved based upon precedent from this Court.. . . . . . . . . 9
No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . 10

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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 INDEX OF AUTHORITIES
PAGE
Cases:

Cardenas v. State,
423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Guerrero v. State,
01-13-00821-CR, 01-13-00822-CR, 2015 WL 2266247
(Tex. App.—Houston [1st Dist.] May 14, 2015, no. pet. h.). . . . . . . . . passim

Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Landers v. State,
402 S.W.3d 252 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

Statutes and Rules:

TEX. HUM. RES. CODE ANN. § 115.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. LOC. GOV'T CODE ANN. § 133.102(e)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASES1

No. 01-13-00821-CR
Trial cause number 1172094

This is an appeal from a conviction for aggravated robbery. (C.R. at 58). Mr.

Guerrero pleaded guilty and received deferred adjudication in March 2010. (C.R. at

33-36, 41). A motion to adjudicate was filed on March 12, 2013. (C.R. at 48). After

hearing evidence, the trial court sentenced Mr. Guerrero to 20 years confinement in

the Texas Department of Criminal Justice - Institutional Division. and a $10,000 fine.

(C.R. at 58). Court costs were assessed on the judgment as $304. (C.R. at 58). An

accompanying bill of costs lists court costs as $279.50. (C.R. at 60). Timely notice of

appeal was filed. (C.R. at 62).

No. 01-13-00822-CR
Trial cause number 1172095

This is an appeal from a conviction for evading arrest with a motor vehicle.

(C.R. at 59). Mr. Guerrero pleaded guilty and received deferred adjudication in March

2010. (C.R. at 35-37, 43). A motion to adjudicate was filed on March 12, 2013. (C.R.

at 49). After hearing evidence, the trial court sentenced Mr. Guerrero to two years

1
Each record citation is for the specific case designated because two separate
records were prepared.
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confinement in the State Jail Division - Texas Department of Criminal Justice. (C.R.

at 59). An accompanying bill of costs lists court costs as $334.00. (C.R. at 61).

Timely notice of appeal was filed. (C.R. at 63).

STATEMENT OF THE PROCEDURAL HISTORY

In an unpublished opinion, the First Court of Appeals affirmed Mr. Guerrero’s

convictions in one opinion. Guerrero v. State, 01-13-00821-CR, 01-13-00822-CR, 2015

WL 2266247(Tex. App.—Houston [1st Dist.] May 14, 2015, no. pet. h.). No motion

for rehearing was filed. After an extension of time, this petition is timely if filed on

or before July 15, 2015.

GROUND FOR REVIEW

The Court of Appeals determined that the constitutional challenge to
the comprehensive rehabilitation court cost could not be raised for the
first time on appeal. The basis for the challenge was not available to Mr.
Guerrero until three weeks after the judgment was signed. Did the
Court of Appeals err in refusing to consider a challenge that was only
available post-trial, in derogation of Landers v. State?

REASONS FOR REVIEW

This exact issue has been granted in London v. State, PD 0480-15.

The First Court of Appeals has decided an important question of state
or federal law in a way that conflicts with the applicable decisions of the
Court of Criminal Appeals or the Supreme Court of the United States.
TEX. R. APP. P. 66.3(c).

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 STATEMENT OF FACTS RELATIVE TO GROUND RAISED

In both cases Mr. Guerrero was assessed the consolidated court cost which

includes subsection 6 - funds for comprehensive rehabilitation. Mr. Guerrero

challenged the fee as an unconstitutional tax violating the separation of powers.

Guerrero, 2015 WL 2266247, at *4.

Comprehensive Rehabilitation

Within the consolidated court cost is a the “comprehensive rehabilitation” cost

with 9.8218 percent of the $133 cost going for this “court cost.” TEX. LOC. GOV'T

CODE ANN. § 133.102(e)(6). After the cost to the county, the amount is about $11.75.

Money directed to this program is used to provide rehabilitation services to eligible

individuals. See TEX. HUM. RES. CODE ANN. § 115.001. The money is spent at the

direction of the Department of Assistive and Rehabilitative Services Id.

ARGUMENT

The Court of Appeals held error was waived.

The Court of Appeals refused to consider the issue because the

constitutionality had not presented it first in the trial court:

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.

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Guerrero , 2015 WL 2266247, at *4.

The error was preserved based upon precedent from this Court.

This Court explained that challenges to court costs can be raised for the first

time on appeal and “[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 v. State, 423 S.W.3d 396,

399 (Tex. Crim. App. 2014). In a companion case decided the same day, Johnson v.

State, the Court further explained that because the cost bill is most likely unavailable

at the time of the judgment, an “Appellant need not have objected at trial to raise a

claim challenging the bases of assessed costs on appeal.” Johnson v. State, 423 S.W.3d

385, 391 (Tex. Crim. App. 2014).

The Court of Appeals held that neither of those cases allowed for a

constitutional challenge on appeal:

These cases [Johnson and Cardenas], 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 complaints involving systemic
requirements and non-waivable rights, constitutional complaints must
be preserved in trial court).

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Guerrero, 2015 WL 2266247, at *4.

No objection was necessary in the trial court.

This case is similar to Landers v. State where this Court explained that

challenging the court cost for an attorney pro tem could be raised for the first time on

appeal, holding:

Since the fees were not imposed in open court and she was not required
to file a motion for new trial, she has not forfeited the complaint on
appeal.

Landers v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013). In Landers, the cost bill

was available six days after the judgment and this Court explained:

No notice of this document was given to the appellant or her attorney
and no further proceedings were held. Consequently, the appellant was
not given an opportunity to object to the imposition of these costs.
Since she was not given the opportunity, the absence of an objection is
not fatal to her appeal.

Landers, 402 S.W.3d at 255. This Court went on to declare that Landers was not

required to object in a motion for new trial because there was no notice the cost bill

had ever been created and it would “allow a judge to de facto alter the statutory time

frame for motions for new trial.” Landers, 402 S.W.3d at 255.

The cost bills in these cases were created on September 19, 2013 and

September 20, 2013. The judgment was entered in both cases on August 29, 2013.

Three weeks had passed. This Court has held that Mr. Guerrero was not required to

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file a motion for new trial in order to preserve his challenge. The Court of Appeals

erred in determining this issue was unpreserved.

PRAYER FOR RELIEF

For the reasons states above, Mr. Guerrero prays that this Court grant his

petition for discretionary review.

Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas

Jani Maselli Wood
_______________________________
JANI J. MASELLI WOOD
Assistant Public Defender
Harris County, Texas
Jani.Maselli@pdo.hctx.net
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278

Attorney for Appellant
Gregorio Guerrero

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 CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 14, 2015, a copy

of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the

Harris County District Attorney’s Office through texfile.com at the following address:

Carly Dessauer
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
dessauer_carly@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

Jani Maselli Wood
_________________________________
JANI J. MASELLI WOOD

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 CERTIFICATE OF COMPLIANCE

Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 1193 words printed in a proportionally spaced typeface.

2. This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3. Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.

Jani Maselli Wood
____________________________
JANI J. MASELLI WOOD

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 Appendix A
Opinion Guerrero v. State
 Guerrero whether he and the State had reached a plea bargain.
2015 WL 2266247 The following exchange occurred:
Only the Westlaw citation is currently available.
THE COURT: Okay. All right. I remember the Court did
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND offer you—make you give a recommendation or give you a
SIGNING OF OPINIONS. recommended offer; is that correct?

DO NOT PUBLISH. TEX. R. APP. P. 47.2(B). APPELLANT'S COUNSEL: That is correct.

Court of Appeals of Texas,
Houston (1st Dist. THE COURT: What was the offer?

Gregorio Guerrero, Appellant APPELLANT'S COUNSEL: Previous offer by the State was
v. ten years.
The State of Texas, Appellee
NO. 01–13–00821–CR, NO. 01–13–00822–CR |
Opinion issued May 14, 2015 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.
On Appeal from the 339th District Court, Harris County,
Texas, Trial Court Case Nos. 1172094 & 1172095
THE COURT: Okay. So do you understand that going
forward, the State has witnesses and this Court is going to
Attorneys and Law Firms
hear all of the testimony. And you received probation on a
first degree felony aggravated robbery with a deadly weapon,
Jani Wood, for Appellant.
which the maximum amount you can receive is ninety-nine
years, or life, in prison. You understand that?
Alan Curry, Carly Dessauer, Devon Anderson, for State of
Texas.
Panel consists of Justices Keyes, Huddle, and Lloyd.
THE DEFENDANT: Yes, ma'am.

MEMORANDUM OPINION
THE COURT: Okay. And is it your desire to reject the State's
offer of ten years and go forward with the hearing?
Rebeca Huddle, Justice
THE DEFENDANT: Yes, ma'am.
*1 Appellant Gregorio Guerrero was charged by indictment
with aggravated robbery with a deadly weapon and evading
Following that exchange, the State presented its evidence
arrest. He pleaded guilty, and the trial court deferred his
showing that Guerrero violated his community supervision
adjudication. Three years later, the State filed a motion to
conditions. The trial court found all of the State's allegations
adjudicate Guerrero's guilt, alleging that he had violated his
true and sentenced Guerrero to 20 years' confinement for the
community supervision conditions. After conducting a
aggravated robbery charge and two years' confinement for the
hearing on the State's motion, the trial court found the State's
evading arrest charge, with the sentences to run concurrently.
allegations true and sentenced Guerrero to 20 years'
That same day, on August 29, 2013, the trial court entered
confinement for the aggravated robbery charge and two years'
judgment and assessed $304 in court costs for the aggravated
confinement for the evading arrest charge, with the sentences
robbery conviction and $334 in court costs for the evading
to run concurrently. In two issues, Guerrero contends that the
arrest conviction. Approximately 20 days later, on September
trial court erred in (1) unconstitutionally interfering with plea
19 and 20, the district clerk issued a bill of cost for each
negotiations, which violated his right to due process and to
conviction, which assessed $133 as a “consolidated court
have the proceeding adjudicated by a neutral and detached
cost.” Guerrero did not file a motion for new trial.
judge, and (2) assessing an unconstitutional court cost against
him because the “consolidated court cost” authorized by
Guerrero failed to preserve any complaint regarding plea
Texas Local Government Code section 133.012(a)(1) violates
negotiations
the Texas Constitution. We affirm.1
Background
*2 In his first issue in appellate cause number
01–13–00821–CR, Guerrero contends that the trial court
The State moved to adjudicate Guerrero's guilt on his
violated his right to due process and to have his case
aggravated robbery and evading arrest charges in March
adjudicated by a neutral and detached judge because the trial
2013. The trial court conducted a hearing on the State's
court interjected itself in the plea-bargaining process. The
motion. At the beginning of the hearing, the trial court asked
State contends that Guerrero failed to preserve this issue. We 01–13–00822–CR, Guerrero contends the “comprehensive
agree with the State. 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,
Generally, to preserve a complaint for appellate review, a collecting funds for the “comprehensive rehabilitation” fund
party must make a timely and specific request, objection, or violates the separation of powers clause of the Texas
motion in the trial court and obtain an adverse ruling from the Constitution. See Tex. Const. art. II, § 1.
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, A. Standard of Review
or otherwise, are forfeited by failure to comply with Rule *3 When reviewing a constitutional challenge, we presume
33.1(a). Mendez v. State, 138 S.W.3d 334, 342 that the statute is valid and that the legislature was neither
(Tex.Crim.App.2004). The improper intrusion by a trial court unreasonable nor arbitrary in enacting it. State v. Rosseau,
into the plea-bargaining process is not systemic error and may 396 S.W.3d 550, 557 (Tex.Crim.App.2013); Curry v. State,
not be brought for the first time on appeal. Moore v. State, 186 S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005, no
295 S.W.3d 329, 333 (Tex.Crim.App.2009). 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
We conclude that Guerrero failed to preserve his complaint the legislative intent and is not repugnant to the Constitution.”
that the trial court unconstitutionally interfered with the Curry, 186 S.W.3d at 42. When statutory authority exists to
plea-bargaining process. At the beginning of the hearing, the sustain a constitutional reading of a statute, we favor that
trial court asked Guerrero whether he and the State had interpretation over any other. See id.; see also Ex parte
reached a plea bargain. The trial court stated “I remember the Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978) (en
Court did offer you—make you give a recommendation or banc) (“Every reasonable intendment and presumption will be
give you a recommended offer; is that correct?” Although that made in favor of the constitutionality and validity of a statute,
statement is unclear, the record makes clear that the trial court until the contrary is clearly shown.”) (citation omitted);
was referring to a plea offer made by the State. Guerrero's Oakley v. State, 807 S.W.2d 378, 381 (Tex.App.–Houston
trial counsel stated that the “[p]revious offer by the State was [14th Dist.] 1991) (“If a statute is capable of two
ten years.” Additionally, when the trial court asked Guerrero constructions, one of which sustains its validity, this court will
if he wished to reject the plea and continue with the hearing, uphold the interpretation that sustains its validity.”), aff'd, 830
he answered “Yes, ma'am.” According to Guerrero, the trial S.W.2d 107 (Tex.Crim.App.1992).
court's reference to “the court's offer” constituted an improper
interjection in the pleabargaining process, which violated his
right to due process and to have the proceeding adjudicated The party challenging the statute bears the burden of
by a neutral and detached judge. 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
However, Guerrero did not complain to the trial court that the challenger must establish that no set of circumstances exists
court improperly interjected itself into the plea-bargaining under which the statute will be valid.” Santikos v. State, 836
process. Likewise, Guerrero made no objection that the trial S.W.2d 631, 633 (Tex.Crim.App.1992) (en banc).
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 B. Applicable Law
itself into the plea-bargaining process. See Tex.R.App. P. Section 133.102(a)(1) of the Texas Local Government Code
33.1(a); Anderson v. State, 301 S.W.3d 276, 280 mandates that a person convicted of a felony must pay $133
(Tex.Crim.App.2009) (“[O]ur prior decisions make clear that “as a court cost, in addition to all other costs.” Tex. Loc.
numerous constitutional rights, including those that implicate Gov't Code Ann.. § 133.102(a)(1) (West Supp.2014). The
a defendant's due process rights, may be forfeited for collected amounts must be remitted to the state comptroller,
purposes of appellate review unless properly preserved.”); who in turn must allocate this money to 14 specified
Moore, 295 S.W.3d at 333 (holding appellant failed to “accounts and funds.” The statute provides that 9.8218
preserve issue because he did not object to trial court's percent of the $133 cost is allocated to the “comprehensive
allegedly improper intrusion into pleabargaining process). 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
We overrule Guerrero's first issue in appellate cause number the collected amounts. Id. Additionally, section 133.058
01–13–00821–CR. permits a municipality or county to retain 10 percent of
collected amounts as a “service fee.” Id. § 133.058(a) (West
Constitutionality of the “comprehensive rehabilitation” Supp.2014).
fund in Local Government Code section 133.102

In his second issue in appellate cause number C. Analysis
01–13–00821–CR and sole issue in appellate cause number
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 An exception arises if the appellant raises a separation of
“comprehensive rehabilitation,” which is unrelated to any powers challenge to a penal statute for the first time on
function of the courts. Guerrero contends that he may raise his appeal. See Aldrich, 104 S.W.3d at 895. Guerrero, however,
constitutional challenge to the court cost for the first time on does not challenge a penal statute. Rather, he contends that
appeal. We agree with the State that Guerrero may not assert Local Government Code section 133.102 violates the
his constitutional claim for the first time on appeal and he separation of powers clause because it improperly allocates
therefore waived any constitutional challenge to Local funds to the comprehensive rehabilitation fund, which
Government Code section 133.102. amounts to an unconstitutional tax. See id. (absolute systemic
requirements include penal statute's compliance with
separation of powers clause of Texas Constitution).
Ordinarily, to preserve error, there must be a timely, specific Accordingly, we conclude that Guerrero failed to preserve his
objection and an adverse ruling by the trial court. Tex.R.App. separation of powers argument. See Gamble v. State, Nos.
P. 33.1; see Lozano v. State, 359 S.W.3d 790, 823 02–13–00573–CR & 02–13–00574–CR, 2015 WL 221108,
(Tex.App.–Fort Worth 2012, pet. ref'd) (“To be timely, an at *4 (Tex.App.–Fort Worth Jan. 15, 2015, pet. ref d) (mem.
objection must be made as soon as the basis for the objection op., not designated for publication) (appellant's failure to
becomes apparent.”). Except for complaints involving preserve issue in trial court forfeited argument on appeal that
systemic requirements, or rights that are waivable only, all his form of community supervision violated separation of
other complaints, whether constitutional, statutory, or powers because he did not contend that a penal code section
otherwise, are forfeited by failure to comply with Rule violated separation of powers).
33.1(a). Mendez v. State, 138 S.W.3d 334, 342
(Tex.Crim.App.2004).
In support of his position that he may raise his separation of
powers argument for the first time on appeal, Guerrero relies
“Examples of rights that are waivable-only include the rights on Cardenas v. State, 423 S.W.3d 396 (Tex.Crim.App.2014)
to the assistance of counsel, the right to trial by jury, and a and Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App.2014),
right of appointed counsel to have ten days of trial in which the Court of Criminal Appeals held that a defendant
preparation which a statute specifically made waivable-only.” may challenge the sufficiency of the evidence to support the
Aldrich v. State, 104 S.W.3d 890, 895 (Tex.Crim.App.2003) assessment of court costs for the first time on appeal. The
(en banc). “Absolute systemic requirements [that may not be Court of Criminal Appeals explained that “[c]onvicted
waived] include jurisdiction of the person [and] the subject defendants have constructive notice of mandatory court costs
matter, and a penal statute's being in compliance with the set by statute and the opportunity to object to the assessment
Separations of Powers Section of the state constitution.” Id. of court costs against them for the first time on appeal or in a
Violation of these non-waivable absolute systemic rights proceeding under Article 103.008 of the Texas Code of
constitutes fundamental error. McLean v. State, 312 S.W.3d Criminal Procedure.” Cardenas, 423 S.W.3d at 399; see also
912, 916 (Tex.App.–Houston [1st Dist.] 2010, no pet.). 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
*4 Here, we conclude that Guerrero forfeited his separation address the constitutionality of court costs, and, therefore, do
of powers argument by failing to raise it in the trial court, not support Guerrero's contention that he may assert his
because his challenge does not constitute a denial of an constitutional claim for the first time on appeal. Accordingly,
absolute systemic requirement. Guerrero did not file a motion we hold that Guerrero failed to preserve his constitutional
for new trial or motion in arrest of judgment challenging the challenge to Local Government Code section 133.102's
constitutionality of assessing a cost to support the allocation of funds to the comprehensive rehabilitation fund.
comprehensive rehabilitation fund. See Salinas v. State, 426 See Mendez, 138 S.W.3d at 342 (except for complaints
S.W.3d 318, 325–26 (Tex.App.–Houston [14th Dist.] 2014, involving systemic requirements and non-waivable rights,
pet. granted) (analyzing constitutional challenge where constitutional complaints must be preserved in trial court).
appellant raised issue of constitutionality of Local
Government Code section 133.102 in motion for new trial and
motion in arrest of judgment); Peraza v. State, ––– S.W.3d *5 We overrule Guerrero's second issue in appellate cause
––––, Nos. 01–12–00690–CR & 01–12–00691–CR, 2014 number 01–13–00821–CR and sole issue in appellate cause
WL 7476214, at *1 (Tex.App.–Houston [1st Dist.] Dec. 30, number 01–13–00822–CR.
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., Conclusion
Russell v. State, No. 02–11–00478–CR, 2013 WL 626983, at
*2 (Tex.App.–Fort Worth Feb. 21, 2013, pet. ref d) (mem. We affirm the judgments of the trial court.
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).
All Citations

Not Reported in S.W.3d, 2015 WL 2266247

Footnotes

1 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.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.