COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00372-CR
JUSTIN DAVID WADDELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1332458D
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MEMORANDUM OPINION1
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I. INTRODUCTION
In two points, appellant Justin David Waddell appeals the portion of the
trial court’s judgment imposing certain court costs. Because we hold that
Waddell failed to preserve these arguments for our review, we will affirm.
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See Tex. R. App. P. 47.4.
II. BACKGROUND
The facts of this case are not in dispute, nor is their recitation necessary
for the disposition of this case. For contextual purposes, it is sufficient to
describe that Waddell pleaded guilty to driving while intoxicated and felony
repetition and that after the trial court suspended the imposition of a ten-year
prison sentence, the trial court placed Waddell on ten years’ community
supervision. In its judgment, the trial court assessed court costs, part of which
were for a $34 “DNA Testing-Pro” cost and a $100 “Emerg Med Serv” cost.
Waddell filed a motion for new trial that was overruled by operation of law. This
appeal followed.
III. DISCUSSION
In his first and second points, Waddell argues that the trial court’s
imposition of the $34 in court costs pursuant to Texas Code of Criminal
Procedure article 102.020(a)(3) and the $100 in court costs pursuant to Texas
Code of Criminal Procedure article 102.0185(a) are facially unconstitutional
taxes. See Tex. Code Crim. Proc. Ann. art. 102.020(a)(3) (West Supp. 2015)
(imposing a $34 court cost for certain offenses wherein a DNA sample is taken);
see also Tex. Code Crim. Proc. Ann. art. 102.0185(a) (West Supp. 2015)
(imposing certain court costs for intoxication-related offenses). Waddell
contends that both of these articles violate the separation of powers provision in
the Texas Constitution. See Tex. Const. art. II, § 1. He asserts that none of the
uses for the costs authorized by these articles are “necessary or incidental” to the
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trial of a criminal case; that the costs therefore operate as a tax and turn courts
into tax gatherers; and that an overruled 1942 decision from the court of criminal
appeals precludes these costs. See Ex parte Carson, 143 Tex. Crim. 498, 500–
01, 505, 159 S.W.2d 126, 127, 130 (1942), overruled by Peraza v. State, 467
S.W.3d 508, 517 (Tex. Crim. App.) (“We therefore reject Carson’s requirement
that, in order to pass constitutional muster, the statutorily prescribed court cost
must be ‘necessary’ or ‘incidental’ to the ‘trial of a criminal case.’”).
Waddell did not present any of these arguments in the trial court at the
time he entered his plea, nor did he present them in his motion for new trial. The
State contends that he therefore did not preserve them for our review. We agree
with the State.
Generally, to preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling if they are not apparent from the context of
the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407
S.W.3d 259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302,
305–06 (Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must
have ruled on the request, objection, or motion, either expressly or implicitly, or
the complaining party must have objected to the trial court’s refusal to rule. Tex.
R. App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. Even most constitutional
issues, including facial challenges to the constitutionality of a statute, may be
forfeited by failing to raise them in the trial court. Ibenyenwa v. State, 367
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S.W.3d 420, 422 (Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g); see
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (“We conclude
that a defendant may not raise for the first time on appeal a facial challenge to
the constitutionality of a statute.”). We should not address the merits of an issue
that has not been preserved for our review. Ford v. State, 305 S.W.3d 530, 532
(Tex. Crim. App. 2009).
This court has recently addressed an argument similar to those Waddell
now brings and held that the failure to present to the trial court a facial
constitutional claim based on the separation-of-powers doctrine forfeits appellate
review of the argument. See Davis v. State, No. 02-15-00163-CR, 2015 WL
5770516, at *2, *4 (Tex. App.—Fort Worth Oct. 1, 2015, pet. filed) (mem. op., not
designated for publication) (holding that Davis failed to preserve his separation-
of-powers challenge to imposition of certain court costs because he failed to
present issue to trial court). We see no distinction, and Waddell does not argue
how his arguments are distinct, from our recent holding in Davis. Thus, we hold
that Waddell has failed to preserve these arguments for our review, and we
overrule both of Waddell’s points on appeal.
IV. CONCLUSION
Having overruled both of Waddell’s points on appeal, we affirm the trial
court’s judgment.
PER CURIAM
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PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 3, 2015
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Justin David Waddell v. State
Combined Opinion