Johnson, William

PD-1254-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/26/2015 8:57:09 AM
Accepted 10/27/2015 4:21:19 PM
ABEL ACOSTA
PD 1254-15 CLERK

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS
_______________________________________________

WILLIAM JOHNSON,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.
_______________________________________________

On Petition for Discretionary Review from the
First Court of Appeals in No, 14–14–00475–CR
affirming the conviction in cause number 1395867,
From the 184th 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
Phone: (713) 368-0016
October 27, 2015 Fax: (713) 368-9278
Counsel for Appellant
October 26, 2015
 IDENTITY OF PARTIES AND COUNSEL

Appellant: William Johnson
SPN#02689555
Harris County Jail
701 North San Jacinto
Houston, TX 77002

Trial Prosecutor: Mr. Anthony Robinson
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002

Defense Counsel at Trial: Mr. Walter Miller
1018 Preston, 5th Floor
Houston, Texas 77002

Presiding Judge: Hon. Jan Krocker, Presiding Judge
184th District Court
Harris County, Texas
1201 Franklin, 17th floor
Houston, Texas 77002

Defense Counsel on Appeal: Jani Maselli Wood
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002

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 Table of Contents

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

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

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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.
Johnson until 27 days 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?. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Reasons for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . 7
The error was preserved based upon precedent from this Court.. . . . . . . . . 7
No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . . 8

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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 INDEX OF AUTHORITIES
PAGE
Cases:

Cardenas v. State,
423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Johnson v. State,
14-14-00475-CR, 2015 WL 5025653
(Tex. App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). . . . . . . passim

Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Landers v. State,
402 S.W.3d 252 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9

Statutes and Rules:

TEX. HUM. RES. CODE ANN. § 115.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

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

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 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

This is an appeal from a conviction for aggravated robbery - deadly weapon.

(C.R. at 38). Mr. Johnson pleaded guilty and went to the court for punishment with

a presentence report. (C.R. at 24-25). After the report and testimony was presented,

Mr. Johnson was sentenced to eight years confinement in the Texas Department of

Criminal Justice - Institutional Division. (C.R. at 38).

STATEMENT OF THE PROCEDURAL HISTORY

In a published opinion, the Fourteenth Court of Appeals affirmed Mr.

Johnson’s conviction. Johnson v. State, 14-14-00475-CR, 2015 WL 5025653 (Tex.

App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). No motion for rehearing was

filed. After an extension of time, this petition is timely if filed on or before October

26, 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.
Johnson until 27 days 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?

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 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).

STATEMENT OF FACTS RELATIVE TO GROUND RAISED

Mr. Johnson was assessed the consolidated court cost which includes

subsection 6 - funds for comprehensive rehabilitation. Mr. Johnson challenged the fee

as an unconstitutional tax violating the separation of powers. Johnson, 2015 WL

5025653, at *2 (explaining that this was challenged on appeal but “Appellant did not

challenge the assessment of costs in the trial court through a motion for new trial or

any other vehicle.”).

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.

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 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:

The requirement that appellant preserve error in the trial court on
constitutional challenges applies to challenges brought under the Texas
Constitution. See Heidelberg v. State, 144 S.W.3d 535, 537–38
(Tex.Crim.App.2004); Curry, 910 S.W.2d at 496.

Johnson, 2015 WL 5025653, at *3.

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).

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

constitutional challenge on appeal:

Because neither Johnson nor Cardenas provides appellant with an
exception to the requirement that he preserve his facial constitutional
challenge in the trial court, we conclude that appellant failed to preserve
error for appellate review. See Karenev, 281 S.W.3d at 434; Heidelberg,
144 S.W.3d at 537–38; Curry, 910 S.W.2d at 496. And, because appellant
failed to preserve error, his second issue is overruled.

Johnson, 2015 WL 5025653, at *3.

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

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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 bill in these cases was created on June 11, 2014. The judgment was

entered on May 15, 2014. Almost four weeks had passed. This Court has held that

Mr. Johnson was not required to 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. Johnson 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
William Johnson

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 CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on October 26, 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:

Melissa Hervey
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
Hervey_Melissa@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 1007 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 Johnson v. State
 Trial court's questions to defense counsel directed
2015 WL 5025653 at whether State had made offer on charge for
Only the Westlaw citation is currently available. robbery and clarification for record that offer had
not been accepted, before accepting defendant's
NOTICE: THIS OPINION HAS NOT BEEN RELEASED guilty plea, did not constitute interference with
FOR PUBLICATION IN THE PERMANENT LAW plea negotiations; plea negotiations had already
REPORTS. UNTIL RELEASED, IT IS SUBJECT TO ended, and defendant had already rejected offer,
REVISION OR WITHDRAWAL. and trial court made no comment suggesting that
defendant should reconsider or that State should
Court of Appeals of Texas, engage in further negotiations. Tex. Crim. Proc.
Houston (14th Dist.). Code Ann. art. 26.13(a)(2).

William Johnson, Appellant Cases that cite this headnote
v.
The State of Texas, Appellee
NO. 14–14–00475–CR | Opinion filed August 25,
2015 [2] Criminal Law
Representations, promises, or coercion; plea
bargaining

Plea bargains are a crucial aspect of the Texas
justice system, and it is improper for a trial judge
Synopsis
to participate or become otherwise involved in the
Background: Defendant was convicted on guilty plea in the
process by which plea bargains are formed.
184th District Court Harris County, of aggravated robbery
with deadly weapon. Defendant appealed.
Cases that cite this headnote

Holdings: The Court of Appeals, Kem Thompson Frost, C.J.,
held that:
[3] Criminal Law
Representations, promises, or coercion; plea
bargaining
[1] trial court did not interfere with plea negotiations;
Plea bargaining is the process where a defendant
who is accused of a particular criminal offense,
[2] aggravated robbery with use or exhibition of deadly
and his attorney, if he has one, and the prosecutor
weapon was first-degree felony, not state-jail felony; and
enter into an agreement which provides that the
trial on that particular charge not occur or that it
will be disposed of pursuant to the agreement
[3] oral pronouncement at plea hearing that guilty plea was
between the parties, subject to the approval of the
not pursuant to plea bargain, and therefore, that defendant had
trial judge.
right to appeal, controlled over written judgment stating that
defendant was convicted pursuant to plea bargain and that he
had no right to appeal.
Cases that cite this headnote
Affirmed as modified.

[4] Criminal Law
Costs
West Headnotes (12)

[1] Criminal Law
Representations, promises, or coercion; plea
bargaining
 Defendant failed to preserve for review on direct Oral pronouncement at hearing on guilty plea to
appeal claim that statutory comprehensive aggravated robbery with deadly weapon that plea
rehabilitation fee assessed as part of sentence for was not pursuant to plea bargain, and therefore,
aggravated robbery with deadly weapon violated that defendant had right to appeal, controlled over
separation of powers because fee statute required written judgment of sentence stating that
courts to collect funds that were unrelated to court defendant was convicted pursuant to plea bargain
functions and rehabilitation was within province and that he had no right to appeal.
of executive branch, where he did not raise claim
at trial. Tex. Const. art. 2, § 1; Tex. Loc. Gov't
Code Ann. § 133.102; Tex. R. App. P. 33.1(a). Cases that cite this headnote

Cases that cite this headnote
[9] Sentencing and Punishment
Presence of Defendant
Sentencing and Punishment
[5] Criminal Law Necessity of writing
Constitutional questions
A defendant's sentence must be pronounced orally
An appellant is required to preserve error in the in his presence.
trial court on a facial or as-applied challenge to
the constitutionality of the statute, because his
right to a constitutional challenge of the statute is Cases that cite this headnote
a right that can be forfeited if it is not raised in the
trial court. Tex. R. App. P. 33.1(a).

[10] Criminal Law
Cases that cite this headnote Requisites and Sufficiency of Judgment
Sentencing and Punishment
Necessity of writing

[6] Criminal Law The judgment, including the sentence assessed, is
Constitutional questions the written declaration and embodiment of the
oral pronouncement of sentence.
The requirement that appellant preserve error in
the trial court on constitutional challenges applies
to challenges brought under the Texas Cases that cite this headnote
Constitution. Tex. R. App. P. 33.1(a).

Cases that cite this headnote [11] Sentencing and Punishment
Oral and written pronouncements

When there is a conflict between the oral
[7] Robbery pronouncement of sentence and the sentence in
Degrees; armed robbery the written judgment, the oral pronouncement
controls.
Aggravated robbery with use or exhibition of
deadly weapon was first-degree felony, not
state-jail felony. Tex. Penal Code Ann. § 29.03. Cases that cite this headnote

Cases that cite this headnote
[12] Criminal Law
Contradiction of, or conflict in, record

[8] Criminal Law
Contradiction of, or conflict in, record
Criminal Law
Plea of Guilty or Nolo Contendere
 If the trial court's oral pronouncement of whether trial court accepted the plea. The trial court later sentenced
a defendant has the right to appeal conflicts with appellant to eight years' confinement and assessed court costs.
its written judgment, the oral pronouncement
controls.

II. Analysis
Cases that cite this headnote

A. Alleged Interference in Plea Negotiations

[1]Appellant asserts the trial court violated his right to have
his punishment assessed by an impartial judge because the trial
On Appeal from the 184th District Court Harris County, court became biased through interference in plea negotiations.
Texas, Trial Court Cause No. 1395867 According to appellant, the interference caused the trial court
to become an advocate for the plea agreement. Appellant
Attorneys and Law Firms argues that if the trial court advocates for a plea agreement, the
trial court's advocacy can give the court “a personal stake” in
Devon Anderson, Melissa Hervey, for The State of Texas. the agreement. Appellant suggests that by interfering, the trial
court became biased and could not be neutral and detached in
Jani J. Maselli Wood, for William Johnson. assessing punishment. Appellant also asserts a trial court's
Panel consists of Chief Justice Frost and Justices Boyce and interference in plea negotiations is coercive.
McCally.

[2] [3]We presume, without deciding, appellant's argument is
preserved for appellate review. Plea bargains are a crucial
aspect of the Texas justice system and it is improper for a trial
OPINION judge to participate or become otherwise involved in the
process by which plea bargains are formed. See Moore v.
State, 295 S.W.3d 329, 331—32 (Tex.Crim.App.2009); Ex
parte Shuflin, 528 S.W.2d 610, 617 (Tex.Crim.App.1975).
Plea bargaining is
Kem Thompson Frost, Chief Justice
the process where a defendant who is accused
*1 Appellant William Johnson challenges his conviction for of a particular criminal offense, and his
aggravated robbery with a deadly weapon and the trial court's attorney, if he has one, and the prosecutor
assessment of court costs against him. Appellant asserts the enter into an agreement which provides that
trial court violated his right to a neutral judge by questioning the trial on that particular charge not occur or
him about the plea offer he rejected. Appellant also challenges that it will be disposed of pursuant to the
Texas Local Government Code section 133.102 as violating agreement between the parties, subject to the
the Texas Constitution. And, both the State and appellant approval of the trial judge.
claim the judgment contains errors. We modify the judgment
to correct errors, but we overrule appellant's other issues and Perkins v. Court of Appeals for Third Supreme
affirm the judgment as modified. Judicial Dist. of Tex., 738 S.W.2d 276, 282
(Tex.Crim.App.1987).

I. Factual and Procedural Background *2 The record reveals that before appellant pled
“guilty,” the trial court questioned appellant
After being charged with aggravated robbery using or regarding plea negotiations:
exhibiting a deadly weapon, appellant pleaded “guilty”
without any agreed recommendation. Before appellant entered [The Court]: Did I understand there is no plea
his plea, the trial court questioned him regarding his bargain?
competency and asked if he understood the impact of his
action. In particular, the trial court queried whether appellant [Appellant's counsel]: That's correct, Your Honor.
understood the plea bargain offered by the State and the
potential range of punishment the trial court could impose.
The trial court stated it would determine the sentence after [The Court]: I do recall there was some discussion
reviewing a pre-sentence investigation report considering about whether or not the State might make him an
evidence. After articulating an understanding of the offer on robbery. Did they ever do that?
consequences of his plea, appellant pleaded “guilty,” and the
 existence of a plea bargain agreement before
[Appellant's counsel]: We talked about it, Your accepting a “guilty” plea). The trial court explained
Honor, but, as I explained to the prosecution earlier, that the purpose of the query was to ensure the
is that based on the facts and the nature and his record reflected appellant understood the
involvement, I thought deferred would have been consequences of pleading “guilty” without a plea
most appropriate thing to do. And so— bargain.

[The Court]: Right. I just want the record to reflect The record shows that the trial court was not
that he turned that down. Did he turn that down? involved in plea negotiations and, therefore, did not
develop any sort of personal stake in the negotiations
that would affect the trial court's impartiality. See
[Appellant's counsel]: He did. Yes, Your Honor. Garcia v. State, 75 S.W.3d 493, 499
(Tex.App.—San Antonio 2002, pet. ref'd) (noting
that lengthy admonishments by the trial court do not
[The Court]: Is that right, they offered you mean that the trial court is involved in plea
something on robbery? Did you give him a number negotiations). The trial court did not interfere in plea
of years on robbery? Did you get that— negotiations. See Perkins, 738 S.W.2d at 282;
Garcia, 75 S.W.3d at 499. Because the trial court
did not interfere in plea negotiations, appellant's
[Appellant's counsel]: Two years, Your Honor. arguments are without merit. See id. Accordingly,
appellant's first issue is overruled.

[The Court]: Two years?

B. Comprehensive Rehabilitation Fee
[Appellant's counsel]: Did I misrepresent?
[4]Section 133.102 of the Texas Local Government
Code governs consolidated fees on conviction. See
[Prosecutor]: No, I believe it was—I believe when Tex. Loc. Gov't Code Ann. § 133.102 (West,
you talked with the chief, the discussion was two Westlaw through 2013 3d C.S.). In his second issue,
years. appellant asserts the court costs assessed under this
statute violate the Texas Constitution. The bill of
costs was issued the same day as the judgment.
[The Court]: Ok[ay]. On a reduced charge of Appellant did not challenge the assessment of costs
robbery. Am I correct in thinking you do not want in the trial court through a motion for new trial or
that? Is that right? I just want the record to reflect any other vehicle.
that. Is that right?

*3 On appeal, appellant asserts section 133.102
[Appellant]: Yes, ma'am. violates the Texas Constitution because it authorizes
the trial court to collect, as court costs, money that is
used for comprehensive rehabilitation. Id. §
[The Court]: Ok[ay]. There is no plea bargain. 133.012(e)(6). Appellant argues that using court
costs to fund rehabilitation efforts violates the
separation of powers because it requires the courts to
collect funds that are unrelated to court functions.
Appellant argues that the trial court's specific See Tex. Const. art. II, § 1 (West, Westlaw through
questions regarding the length of time the State 2013 3d C.S.). Appellant asserts rehabilitation is
offered as a recommended sentence constituted within the province of the executive branch.
interference in plea negotiations. The record reveals
that at the time of the trial court's questioning, plea
negotiations already had ended and appellant already [5] [6]To prevail on appeal, appellant was required
had rejected the plea bargain. The trial court did not to preserve error in the trial court on his facial
suggest that appellant should reconsider his rejection challenge to the constitutionality of the statute,
and attempt to engage the State in further plea because his right to a facial challenge of the statute
negotiations. Rather, the trial court simply clarified is a right that can be forfeited if it is not raised in the
for the record that appellant was aware of the trial court. See Tex. R. App. P. 33.1(a); Karenev v.
specifics of the plea bargain offered by the State and State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009).
that he had turned it down. See Tex. Code Crim. To the extent appellant's issue can be construed as an
Proc. Ann. art. 26.13(a)(2) (West, Westlaw through as-applied challenge, appellant was similarly
2013 3d C.S.) (requiring trial-court inquiry into the required to raise the challenge in the trial court. See
Johnson v. State, --- S.W.3d ---- (2015)

Curry v. State, 910 S.W.2d 490, 496 Errors in the Judgment
(Tex.Crim.App.1995). The requirement that
appellant preserve error in the trial court on In his third issue, appellant asserts that the judgment
constitutional challenges applies to challenges contains two errors. The State concedes both errors.
brought under the Texas Constitution. See
Heidelberg v. State, 144 S.W.3d 535, 537–38
(Tex.Crim.App.2004); Curry, 910 S.W.2d at 496.
1. Level of Offense

Appellant relies on the Court of Criminal Appeals's *4 [7]Appellant pled “guilty” to aggravated robbery
holdings in Johnson v. State and Cardenas v. State with the use or exhibition of a deadly weapon, a
in asserting he was not required to preserve error in first-degree felony. See Tex. Penal Code Ann. §
the trial court regarding his constitutional challenge 29.03 (West, Westlaw through 2013 3d C.S.). The
to the court costs assessed against him. See Johnson admonishments appellant signed in conjunction with
v. State, 423 S.W.3d 385 (Tex.Crim.App.2014); his “guilty” plea reflect that the offense is a
Cardenas v. State, 423 S.W.3d 396 first-degree felony. The judgment reflects appellant
(Tex.Crim.App.2014). In Johnson and Cardenas, the was convicted of the offense of aggravated robbery
Court of Criminal Appeals addressed instances in with a deadly weapon, but it lists the degree of the
which defendants sought review of court costs offense as a state-jail felony. Appellant requests that
assessed against them after the judgment of we reform the judgment to reflect conviction for a
conviction was entered on the grounds that the first-degree felony rather than a state-jail felony. The
record did not support any basis for imposing court State agrees that we should grant this relief.
costs against the defendants. See Johnson, 423
S.W.3d at 388; Cardenas, 423 S.W.3d at 398.
Noting that the review was similar to a The trial court erred in rendering judgment against
legal-sufficiency review, and that most defendants appellant for a state-jail felony. We therefore modify
would not have an opportunity to object to baseless the judgment to reflect appellant's conviction for a
court costs in the trial court, the Court of Criminal first-degree felony. See French v. State, 830 S.W.2d
Appeals held in Johnson that Johnson was not 607, 609 (Tex.Crim.App.1992); Musgrove v. State,
required to object at trial to raise a claim challenging 425 S.W.3d 601, 612 (Tex.App.—Houston [14th
the bases of assessed costs on appeal. See Johnson, Dist.] 2014, pet. ref'd) (modifying judgment to
423 S.W.3d at 390–91. In Cardenas, the Court of reflect correct offense level).
Criminal Appeals rejected Cardenas's argument that
supplementing the clerk's record with a bill of costs
violated his right to due process of law, in part,
because Cardenas was able to challenge the basis of 2. Right to Appeal
the costs for the first time on appeal. Cardenas, 423
S.W.3d at 399. In neither of these cases does the [8]Appellant asserts that the trial court erred in its
high court hold that a defendant who had an written judgment by stating that he had no right to
opportunity to present a challenge to the appeal. The written judgment says appellant was
constitutionality of a statute imposing court costs in convicted pursuant to a plea bargain and has no right
the trial court may raise his constitutional challenge to appeal. At the hearing on appellant's guilty plea,
for the first time on appeal. Because neither Johnson however, the trial court stated that because there was
nor Cardenas provides appellant with an exception no plea bargain, appellant had the right to appeal.
to the requirement that he preserve his facial The record reflects there was no plea bargain in this
constitutional challenge in the trial court, we case.
conclude that appellant failed to preserve error for
appellate review. See Karenev, 281 S.W.3d at 434;
Heidelberg, 144 S.W.3d at 537–38; Curry, 910 [9] [10] [11] [12]A defendant's sentence must be
S.W.2d at 496. And, because appellant failed to pronounced orally in his presence. Taylor v. State,
preserve error, his second issue is overruled. 131 S.W.3d 497, 500 (Tex.Crim.App.2004). The
judgment, including the sentence assessed, is the
written declaration and embodiment of that oral
pronouncement. Id. When there is a conflict between

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Johnson v. State, --- S.W.3d ---- (2015)

the oral pronouncement of sentence and the sentence
in the written judgment, the oral pronouncement
controls. Id. Similarly, if the trial court's oral
pronouncement of whether a defendant has the right
to appeal conflicts with its written judgment, the oral
pronouncement controls. Grice v. State, 162 S.W.3d
641, 644–45 (Tex.App.—Houston [14th Dist.] 2005,
pet. ref'd).

The trial court's special finding that appellant does
not have the right to appeal conflicts with the judge's
oral pronouncement that appellant had the right to
appeal. Because the oral pronouncement is
inconsistent with the written judgment, we modify
the written judgment to reflect the oral
pronouncement that appellant has the right to appeal.
See id.

III. Conclusion

Appellant does not prevail on his first issue. The trial
court did not violate appellant's right to a neutral
judge by its actions in connection with the plea
negotiations because the trial court did not interfere
in the negotiations. Nor does appellant prevail on the
constitutional challenge presented in his second
issue. Appellant did not preserve error in the trial
court on his claim that section 133.102 violates the
Texas Constitution. Appellant, however, is entitled
to relief on his third issue because the judgment
contains errors. The judgment incorrectly reflects
appellant was convicted of a state-jail felony and that
appellant has no right of appeal. We modify the
judgment to reflect appellant's conviction for a
first-degree felony and to reflect appellant's right to
appeal. We affirm the trial court's judgment as
modified.

All Citations

--- S.W.3d ----, 2015 WL 5025653

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

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