IN THE
TENTH COURT OF APPEALS
No. 10-21-00050-CR
SHELDON MCDANIEL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 14931-A
MEMORANDUM OPINION
Sheldon McDaniel pleaded guilty to the state jail felony offense of possession of a
controlled substance. The trial court received his plea of guilty and after a punishment
hearing assessed McDaniel’s punishment at twenty months in a state jail facility. We
will affirm.
Procedural and Factual Background
McDaniel waived trial by jury and pleaded guilty to the court without a
punishment recommendation from the state. After McDaniel entered his plea the trial
court ordered a pre-sentence investigation in which McDaniel failed to participate.
After a punishment hearing the trial court sentenced McDaniel to twenty months in a
state jail facility. The trial court’s written judgment did not include a finding that
McDaniel was presumptively entitled to diligent participation credit. See TEX. CODE
CRIM. PROC. ANN. art. 42.0199.
Issue One
McDaniel now complains in one issue that the Code of Criminal Procedure’s
requirement that trial courts determine eligibility for diligent participation credit
against time served in a state jail facility is facially unconstitutional because it violates
the Texas Constitution's non-delegation doctrine. See TEX. CONST. art. II, § 1.
APPLICABLE LAW
We review de novo as a question of law whether a criminal statute is
constitutional. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When we conduct
our review, we are required to presume that the statute is constitutional and that the
legislature was neither unreasonable nor arbitrary in enacting it. See Karenev v. State,
281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.
Crim. App. 2002). We will uphold the statute if we can apply a reasonable construction
McDaniel v. State Page 2
that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.
[Panel Op.] 1979). The burden of establishing that a statute is unconstitutional falls on
the party seeking to challenge the statute. State v. Rosseau, 396 S.W.3d 550, 557 (Tex.
Crim. App. 2013). A facial challenge to the constitutionality of a statute can be forfeited
if not challenged in the trial court and may not be raised for the first time on appeal.
Karenev v. State, 281 S.W.2d at 434.
DISCUSSION
The record before us reflects that on December 21, 2020, when McDaniel pleaded
guilty, the trial court admonished him that his offense was a state jail felony. At the
time of his plea, articles 42.0199 and 42A.559 of the Code of Criminal Procedure set
forth the procedure regarding the grant of credit for diligent participation in state jail
felonies. TEX. CODE CRIM. PROC. ANN. art. 42.0199, 42A.559. The trial court conducted a
punishment hearing on March 9, 2021, some three months after admonishing McDaniel
that he was pleading guilty to a state jail felony. McDaniel knew he was charged with a
state jail felony and did not lodge an oral or written objection asserting that article
42.0199 or 42A.559 violated the non-delegation doctrine and was therefore facially
unconstitutional or unconstitutional as applied to McDaniel. The judgment was signed
by the judge and filed with the district clerk on March 9, 2021. McDaniel's pro se notice
of appeal was also filed on March 9, 2021. While no facts needed to be developed
regarding this issue, McDaniel could have utilized a motion for new trial to put the trial
McDaniel v. State Page 3
court on notice of his assertion that article 42.0199 and/or 42A.559 were
unconstitutional. We recognize that there is no requirement that “magic language” be
used but the record should clearly reflect that the trial judge and opposing counsel
understood the issue was raised in the trial court. See State v. Rosseau, 396 S.W.3d at 555.
Here the record is devoid of any such challenge to the constitutionality of articles
42.0199 and 42A.559. McDaniel did not make his constitutional challenge in the trial
court; therefore, his complaint is not preserved for review. See TEX. R. APP. P. 33.1(a)(1).
Accordingly, we overrule McDaniel’s sole issue.
Conclusion
We affirm the judgment of the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Do not publish
Opinion delivered and filed December 1, 2021
[CR 25]
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