Nos. 07- 15 - 00181 - CR -& 07- 15 - 00182 - CR IN THE COURT OF APPEALS FOR THE SEVENTH JUDICIAL DISTRICT OF TEXAS

AMARILLO, TEXAS MICHAEL DON DENTON, APPELLANT

V. THE STATE OF TEXAS ON APPEAL IN CAUSE NOS. 18,607-B and 18,608-B FROM THE 181 st DISTRICT COURT OF RANDALL COUNTY, TEXAS HONORABLE JOHN BOARD, JUDGE PRESIDING BRIEF FOR THE STATE OF TEXAS

JAMES A. FARREN CRIMINAL DISTRICT ATTORNEY RANDALL COUNTY, TEXAS KRISTY WRIGHT SBN 00798601 kwright@randallcounty.org ASST. CRIMINAL DISTRICT ATTORNEY 2309 Russell Long Blvd., Suite 120 Canyon, Texas 79015 (806) 468- 5570 FAX (806) 468- 5566 ATTORNEYS FOR THE STATE STATE REQUESTS ORAL ARGUMENT IF REQUESTED BY THE APPELLANT ACCEPTED 07-15-00182-CR SEVENTH COURT OF APPEALS

AMARILLO, TEXAS 9/18/2015 11:11:46 AM Vivian Long, Clerk2 TABLE OF CONTENTS INDEX OF AUTHORITIES 4 THE CASE IN BRIEF 5 - 6 STATE’S COUNTERPOINTS

COUNTERPOINT NO. 1 THE APPELLANT WAS NOT ASSESSED A $2,000 FINE AFTER SENTENCING. ALTHOUGH THE APPELLANT PAID OFF A $2,000 FINE WHILE HE WAS ON DEFERRED PROBATION IN 18,607 - B, THE TRIAL JUDGE NEVE R REASSESSED THE $2,000 FINE AFTER ADJUDICATING GUILT AND SUCH FINE WAS NEVER INCLUDED IN THE WRITTEN JUDGMENT. COUNTERPOINT NO. 2 THE APPELLANT FAILED TO PRESERVE ISSUE TWO FOR APPELLATE REV IEW.

STATEMENT OF FACTS 7 - 12 COUNTERPOINT NO. 1 RESTATED 13 STATEMENT OF FACTS 13 SUMMARY OF THE ARGUMENT 13 - 14 ARGUMENT 14 - 16 COUNTERPOINT NO. 2 RESTATED 17 STATEMENT OF FACTS 17 SUMMARY OF THE ARGUMENT 1 7 ARGUMENT 17 - 243

PRAYER 25 CERTIFICA TE OF COMPLIANCE 25 CERTIFICATE OF SERVICE 264 INDEX OF AUTHORITIES TEXAS CASES Guerrero v. State , 2015 WL 2266247 18, 20, 2 2 (Tex.App. — Houston [1 st Dist.] 2015) (not designated for publication) Joh nson v. State , 2015 WL 5025653 18 (Tex.App. — Houston [14 th Dist.] 2015) (not designated for publication) Karenev v. State , 281 S.W.3d 428 18 (Tex.Crim.App. 2009) Taylor v. State , 131 S.W.3d 497 14, 15 (Tex.Crim.App. 2004) Th ias v. State , 2014 WL 6556530 18 (Tex.App. — Amarillo 2014) (not designated for publication) Thomas v. State , 445 S.W.3d 288 2 4 (Tex.App. — Houston [1 st Dist.] 2013 , no pet. ) Wyatt v. State , 268 S.W.3d 270 18 (Tex.App. — Amarillo 2008, no pet.) TEXAS STATUTES Texas Local Government Code, Section 133.102 18, 2 4 Texas Local Government Code, Section 133.102(e)(7) 17, 18 Texas Rules of Appellate Procedure, Rule 21.4(a) 20, 21, 23 Texas Rules of Appellate Procedure, Rule 22.3 20, 21, 235 No s . 07 - 15 - 00181 - CR & 07 - 15 - 00182 - CR

IN THE COURT OF APPEALS FOR THE SEVENTH JUDICIAL DISTRICT OF TEXAS

AMARILLO, TEXAS MICHAEL DON DENTON ,

APPELLANT V. THE STATE OF TEXAS TO THE HONORABLE COURT OF APPEALS: Comes now, the State of Texas in the above styled and numbered cause s and files this brief in response to the brief of the Appellant, Michael Don Denton . The appellant was convicted of the felony offe nse s of delivery of a controlled substance (4 grams or m ore but less than 200 grams) in Cause Nos. 18,607 - B and 18,608 - B , in 18 1 st District Court of Randall C ounty, the Honorable John Board , Judge presiding. THE CASE IN BRIEF THE CHARGE S DELIVERY OF A CONTROLLED SUBSTANCE (4 GRAMS OR MORE BUT LESS THAN 200 GRAM S) IN CAUSE NOS. 18,607 - B & 18,608 - B THE PLEA S GUILTY THE VERDICT S (JUDGE) DEFERRED ADJUDICATION OF GUILT IN EACH CASE THE PUNISHMENT S (JUDGE) FOUR (4 ) YEARS DEFE RRED ADJUDICATION PROBATION & A $2 ,000.00 FINE IN EACH CASE6

VIOLATION S OF PROBATION STATE FILED MOTION S TO REVOKE ORDER GRANTING UNADJUDICATED PROBATION THE PLEA S APPELLANT PLED TRUE IN EACH CASE THE PUNISHMENT S (J UDGE) PROBATED SENTENCE OF FOUR (4) YEARS EXTENDED FOR ONE (1) MORE YEAR AND APPELLANT ORDERED TO PARTICIPATE IN AND COM P LETE COURT OR DERED RESIDENTIAL TREATMENT (CRTC) IN EACH CASE REVOCATION S STATE FILED AN AMENDED MOTION TO REVOKE ORDER GRANTING UNADJUDICATED PROBATION IN EACH CASE DISMISSAL S STATE FILED A MOTION TO DISMISS AMENDED MOTION TO REVOKE IN EACH CASE AND TRIA L JUDGE DISMISSED BOTH MOTION S REVOCATION S STATE FILED A MOTION TO REVOKE ORDER GRANTING UNADJUDICATED PROBATION IN EACH CASE THE PLEA S APPELLANT PLED NOT TRUE TO THE ALLEGATIONS IN THE STATE’S MOTION TO REVOKE IN 18 ,607 - B & 18,608 - B. IN EACH CASE , STAT E WAIVED PARAGRAPHS 1 & 3. THE TRIAL JUDGE FOUND PARAGRAPHS 2, 4, & 5 TO BE TRUE THE PUNISHMENT S (J UDGE) TWENTY (20 ) YEARS IN PRISON IN EACH CASE . NO FINE WAS ASSESSED. JUDGE ORD ERED THE SENTENCES IN 18,607 - B AND 18,608 - B TO RUN CONCURRENTLY7 STATEMEN T OF FACTS January 10, 2007 Indictment filed against appellant In 18, 608 - B for the felony offense of delivery of a controlled substance (4 grams or more but less than 200 g rams). (CR.I - 18,608 - B page 6) February 7 , 2007 Indictment filed against a ppellant i n 18,607 - B for the felony offense of delivery of a controlled substance (4 grams or more but less than 200 grams) . (CR.I - 18,607 - B page 6) July 26, 2007 A ppellant placed on 4 years deferred adjudication and ordered to pay court costs and a $2,000 fine in both 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - pages 11 - 16, 19 - 23) ; (CR.I - 18,608 - B - pages 11 - 16, 19 - 23). No appeal taken from these proceeding s . (CR.I - 18,607 - B - pages 17 , 18) ; (CR.I - 18,608 - B - pages 17, 18) August 13, 2007 B ill of cost reflected that appellant ow ed a $2,000 fine and a $133 consolidated court cost in both 18,607 - B an d 18,608 - B. (SCR.I - 18,607 - B - page 4 ); (SCR.I - 18,608 - B - page 4 ) February 10, 2009 State filed a motion to revoke order granting unadjudi cated probation in 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - pages 28 - 29) ; (CR.I - 18,608 - B - pages 28 - 29) March 18, 2009 Appellant paid off all of his fine s and court costs in 18,607 - B. (SCR.I - 18,607 - B - pages 29 ; 30 - 43 ; 44 - 51 ) June 5, 2009 Judge signed a supplemental order in 18,608 - B amending the cond itions of probation. (CR.I - 18, 608 - B page 34). J udge extended the probationary period in 18,608 - B for one year and ordered appellant to8 participate in an d complete CRTC. (CR.I - 18,608 - B - page 34). June 9, 2009 J udge signed a supplemental order in 18,607 - B ame nding the conditions of probation. (CR.I - 18,607 - B page 34). J udge extended probationary period in 18,607 - B for one year and ordered appellant to participate in and complete CRTC . (CR.I - 18,607 - B - page 34). August 11, 2009 State filed a motion to revoke order granting unadj udicated probation in 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - page 36) ; (CR.I - 18,608 - B - page 36) September 21, 2009 State filed an amended motion to revoke order granting unadjudica ted probation in 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - page 44 ) ; (CR .I - 18,608 - B - page 44) January 27, 2010 Judge held a hearing in 18,607 - B and 18,608 - B on the State’s amended motion to revoke dated September 21, 2009 . (RR.II - 6 - 125). The hearing was not com pleted on this date and judge rescheduled the hearing for February 24, 2010. (RR.II - 110 - 111, 121, 123, 124); (RR.III - 5 - 7) February 17, 2010 S t ate filed a motion to dismiss the amended motion to revoke dated Se ptember 21, 2009 in 18,607 - B and 18,608 - B . Judge dismissed the amended motions. (CR.I 18,607 - B - pa ge 101) ; (CR.I - 18,608 - B - page 101) February 17, 2010 State filed a motion to revoke order granting unadjudicated probation in 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - pages 102 - 103); (CR.I - 18,608 - B - pages 102 - 103) February 24, 2010 Ju dge held hearing in 18,6 07 - B and 18,608 - B on State’s motion to revoke dated Fe bruary 17, 2010 . (RR.I II - 5).9 However, trial counsel was not present at the hearing because he had not “...been paid for the new motion....” (RR.III - 5). The trial judge rescheduled the hearing to March 2 4, 2010. (RR.III - 7) March 24, 2010 Judge held a hearing in 18,607 - B and 18,608 - B on State’s motion to revoke dat ed February 17, 2010 . (RR.IV - 6 - 106). In both cases, State waived paragraphs 1 and 3 of the motion t o revoke . (RR.IV - 44; 68). At the hearing, Audra Laminack (a probation officer) testified that appellant failed to s ubmit to a urinalysis on February 2, 2010 . (RR.IV - 19 , 21 ) . In addition, Ms. Laminack testified that appellant failed to provide her with a completed physical (including results of a T B test) and paperwork from Dr. William Kracke (detailing appellant’s diagnosis and what medication he was on) by February 12, 2010 . (RR.IV - 20 - 25 ; 31 - 32) . After listening to all the evidence, Judge found paragraph s 2, 4, and 5 to be true in both 18,607 - B a nd 18,608 - B. (CR.I - 18,607 - B - pages 118 - 119); (CR.I - 18,608 - B - pages 118 - 119); (RR.IV - 68). Trial judge later sentenced appellant to 20 years in prison in 18,607 - B and 18,608 - B and ordered the sentences to run concurre ntly. No fines were assessed. (CR.I - 18,607 - B pages 118 - 119); (CR.I - 18,608 - B - pages 118 - 119) ; (RR.IV 105 - 106) March 29 , 2010 A bill of cost reflected that appellant had not paid off the $2,000 fine and a $133 consolidated court cost in 18,608 - B. (SC R.I - 18,60 8 - B - page 29 ) April 6, 2010 David Martine z was retained as appellate counsel in each case. (CR.I - 18,607 - B - page 147); (CR.I - 18,608 - B page 147) April 26, 2010 David Martinez filed motion s for new trial in 18,607 - B and 18,608 - B , which were overruled by operation of law.10 (CR.I - 18,607 - B - pages 120 - 125 ) ; (CR.I - 1 8,608 - B - pages 10 - 125) . May 5, 2010 David Martinez filed a notice of appeal in each case . (CR.I - 18,607 - B - at 126); (CR.I - 18,608 - B - page 126) August 11, 2010 David Martinez failed to file appellate briefs in 18,607 - B and 18,608 - B. (CR.I - 18,607 - B - page 147) ; (CR.I - 18,608 - B page 147) September 7, 201 0 David Martinez failed to file appellate briefs in 18,607 - B and 18,608 - B. (CR.I - 18,607 - B - page 147); (CR.I - 18,608 - B page 147) September 27, 2010 David Martinez failed to file appellate briefs in 18,60 7 - B and 18,608 - B. (CR.I - 18,607 - B - page 147 - 148 ); (CR. I 18,608 - B - page 147 - 148 ) October 8, 2010 18,607 - B and 18,608 - B were abated and remanded to trial judge to determine whether appellant desired to prosecute the appeals, whether David Martinez would dilige ntly pursue the appeals, and whether new counsel should be appointed to pursue the appeals. (CR.I 18,607 - B - page 148) ; (CR.I - 18,608 - B - page 148) Oc tober 14, 2010 David Martinez wrote appellant a letter advising him to withdraw his direct appeal s in 18,607 - B and 18,608 - B in order to pursue a state writ of habeas corpus. (CR.I 18,607 - B - page 154) ; (CR.I - 18,608 - B - page 154) October 21, 2010 A ppellant signed an affidavit requesting to withdraw his notice of appeal in 18,607 - B and 18,608 - B . (CR.I - 18 ,607 - B - page 148) ; (CR.I - 18,608 - B - page 148) Oc tober 27, 2010 David Martinez filed a motion to dismiss the appeal s in 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - page 149); (CR.I 18,608 - B - page 149)11

October 28, 2010 Seventh Court of Appeals granted the motion and dismissed th e appeal in 18,607 - B and 18,608 - B . (CR.I 18,607 - B - page 149); (CR.I - 18,608 - B - page 149 ) June 22, 2011 A state habeas writ application was filed challenging the conviction a nd sentence in 18,607 - B and 18, 608 - B. (CR.I 18,607 - B - page 149) ; (CR.I - 18,608 - B - page 149) September 21, 2011 Texas Court of Criminal Appeal s denied the state habeas writ application without written order in 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - page 149); (CR.I - 18,608 - B - page 149) June 3, 2012 A ppellant filed an additional pro se state h abe as writ application challenging his convi ction and sentence in 18 ,607 - B and 18,608 - B. (CR.I - 18,607 - B - page 149); (CR.I 18,608 - B - page 149) August 1, 2012 Texas Court of Criminal Appeals dismi ssed the appellant’s writ application s in 18,607 - B and 18,6 08 - B as subsequen t applications in violation of A rticle 11.07(4) of the Texas Code of C riminal P rocedure. (CR.I - 18,607 - B - page 149); (CR.I - 18,608 - B - page 149) September 1, 2012 A ppellant filed a federal habeas writ application in 1 8,607 - B and 18,608 - B. (CR.I - 18,607 - B - page 149); (CR.I 18,608 - B - page 149) May 1, 2014 E videntiary hearing was held on the federal writ application s. (CR.I - 18,607 - B - page 150); (CR.I - 18,608 - B page 150) March 17, 2015 United States District Judge conditionally granted the a ppellant’s application s for a federal writ of habeas corpus and ordered that his convictions in 18,607 - B and 18,608 - B be vacated unless the appellan t is given out of time appeal s with the assistance of counsel within 6012 days from the date of order . (CR.I - 1 8,6 07 - B - page 177); (CR.I - 18,608 - B - page 177) April 15, 2015 John Bennett appointed as appellate counsel in 18,607 - B and 18,608 - B. (CR.I - 18,607 - B - page 144); (CR.I - 18,608 - B page 144) April 23, 2015 John Bennett filed notice of appeal in 18,607 - B and 1 8,608 - B. (CR.I - 18,607 - B - page 145); (CR.I - 18,608 - B - page 145) April 29, 2015 Appellant filed a pro se motion for new trial in each case. (CR.I - 18,607 - B - page 163); (CR.I - 18,608 - B - page 163) August 27, 2015 John Bennett filed his direct appeal in 18,607 - B and 18,608 - B13 COUNTERPOINT NO. 1, RESTATED THE APPELLANT WAS N OT ASSESSED A $2,000 FINE AFTER SENTENCING. ALTHOUGH THE APPELLANT PAID OFF A $2,000 FINE WHILE HE WAS ON DEFERRED PROBATION IN 18,607 - B , THE TRIAL JUDGE NEVER REASSESSED T HE $2,000 FINE AFTER ADJUDICATING GUILT AND SUCH FINE WAS NEVER INCLUDED IN THE WRITTEN JUDGMENT. STATEMENT OF FACTS : The State adopts and incorporates herein by reference for all purposes the facts set forth in the “Statement of Facts” section of this brief at pages 7 - 12 . SUMMARY OF THE ARGUMENT Issue One i s based on a complete misrepresentation of the record. The record in 18,607 - B contained no evidence that the appellant was reassessed a $2,000 fine on or after the March 24, 2010 proceeding (the dat e the appe llant was adjudicated guilty and given a prison sen tence ) . Although the trial judge imposed a $2,000 fine when the app ellant was placed on deferred probation , the trial judge never reassessed the $2,000 fine at the March 24, 2010 proceeding and the written j udgment contained no mention of such fine . Additionally, the bill of costs do es not show th at the appellant was charged a $2,000 fine after sentencing. The bill of costs merely shows that a $2,000 fin e was charged, but does not indicate when the fine was charg ed or when the appellant made payments to the fine. More importantly, documents obtained from the Randall14

County Distri ct C lerk’s office clearly show that the appellant paid off his $2,000 fine on March 18, 2009 (while he was still on de ferred probation). Accordingly, Issue One is without merit and should be denied. ARGUMENT In Issue One, the appellant alleges th at a $2,000 fine was wrongfully assessed in 18,607 - B . 1 (Appellant’s Brief at pages 18 - 20 ). According to the appellant, the tri al judge failed to orally pronounce this fine at the March 24, 2010 hearing (in which the appellant was adjudicated guilty and sentenced to twenty years in prison). As support for his allegation, t he appellant asserts that the bill of costs reflects that t he appellant continued to be charged the $2,000 fine after sentencing. (Appell ant’s Brief at page 18). Howe ver, the State submits that Issue One should be de nied because the appellant misrepresents the record and the claim has no merit . In his brief, t h e appellant argues that a fine which is not orally pronounced at sentencing (in this case sentencing occurred at the motion to proceed hearing held on March 24 , 2010 ) is wrongfully assessed and should be deleted from the judgment. (Appellant’s Brief at pages 19, 21). The appellant cites to Taylor v.

1 Since the appellant only refers to 18,607 - B in his facts and summary of the argument in Issue One and since the appellant never refers to 18,608 - B when discussing Issue One, the State’s Counterpoint One will focus solely on the proceedings in 18,607 - B. (Appellant’s Brief at pages 14, 18, 1 9 - 20).15

State , 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). The appellant’s interpretation of the la w is correct, but he completely distorts the record in order for the Taylor case to apply to the facts of this case. As w ill be shown, the Taylor case is inapplicable to 18,607 - B . Although the trial judge imposed a $2,000 fine when he placed the appellant on deferred adjudication community supervision in 18,607 - B , the trial judge never re assessed a $2,000 fine after adjudica ting guil t on March 24, 2010. (CR.I - 18,607 - B - pages 11 - 16, 19 - 23; 118 - 119). Th e fine was not orally re assessed at the March 24, 2010 proceeding and the written judgment contained no mention of such fine. (CR.I - 18,607 - B - page 118); (RR.IV - 105 - 106). In fact, the term “N/A” was specifically stated under the section ordering a fine in the written judgment . (CR.I - 18,607 - B - page 118); (RR.IV - 105 - 106). Obviously, based on these excerpts from the record, the trial judge never (by mere intention or otherwise) reass ess ed a $2,000 fine on or after March 24, 2010 in 18,607 - B. Accordingly, Taylor does not apply to the facts of this case . In making his argument, t he only evidence the appella nt relies on to support hi s contention that he was charged a $2,000 fine after sentencing was a bill of costs dated August 24, 2015. ( Appellant’s Brief at page 14 and Appendix F ). However, t he bill of costs dated August 24, 2015 merely shows that the appellant16

was charged a $2,000 f ine in 18 ,607 - B and that he paid off such f ine . ( Appellant’s Brief at Appendix F) . The bill of costs does not state when the $2,000 fine was assessed or on what dates the appell ant made payments to the fine. Likewise, none of the bill of costs contained in the record show tha t the appellant was charged a $2,000 fine after sentencing. (CR .I - 18,607 - B - page 138) ; (SCR.I - 18,607 - B at page 29 ) . The appellant has drastically over reached and misrepresented the record by making the following assertion — the bill of cost s shows that he was charged the $2,000 fine aft er sentencing. (Appellant’s Brief at page s 18 - 19 ). Instead of overreaching, the appellant or his counsel should have req uested a payment transaction detail and/or payment receipts from the Randall County District Clerk’s office in order to ascertain wh en the $2,000 fine was charged and paid off. By doing so, the appellant and his counsel would have realized that t he appellant was charged the $2,000 fine on July 26, 2007 and paid off the fine on March 18, 2009 ( while he was still on deferred probation ). (SCR. - I - 18,607 - B - page s 30 - 43; 44 - 51 ). I t i s reasonable t o deduc e from the reco rd that the trial judge did not reassess the $2,000 fine in 18,607

- B because the appellant had already paid it off prior to the March 24, 2010 proceeding. Accordingly, the allegat ions in Issue One are frivolous, merit less , and should be denied.17 COUNTERPOINT NO. 2, RESTATED THE APPELLANT FAILED TO PRESERVE ISSUE TWO FOR APPELL ATE REVIEW. STATEMENT OF FACTS : The State adopts and incorporates herein by reference for all purposes the facts set forth in the “Statement of Facts” sec tion of this brief at pages 7 - 12 . SUMMARY OF THE ARGUMENT Th e appellant failed to preserve Issue T wo for appellate review. In this regard, the appellant had four opportunities to raise his as - applied con stitutional challenge regarding Section 133.102 of the Texas Local Government Code to the trial judge and fai led to do so. Hence, Issue Two was not preserved for appellate review and should be denied . ARGUMENT

Failure to Preserve Error for Appellate Rev iew In Issue Two, the appellant alleges that Section 133.102(e)(7) of the Texas Local Government Code is unconstitutional as applied to him. (Appe llant’s Brief at pages 20 - 33). The a ppellant specifically asserts that he should not be re quired to pay the portion of the $133 consolidated court cost assessed in 18,607 - B and 18,608 - B that was dedicated to the “operator’s and chauffeur’s license ” ( which constitutes 11.1426 percent or $14.82 in each case ). TEX. GOVT. CODE,18

§133.102(e)(7); (Appellant’s Brief at pages 20 - 33). However, the appellant d id not preserve Issue Two for appellat e re view since he failed to present this claim to the trial judge. Any constitutional challenge to §133.102 of the Texas Local Government Code must be raised to the trial judge or it is not preserved for appellate review . See Karenev v. State , 281 S.W.3d 428, 434 (Tex.Crim.App. 2 009); Wyatt v. State , 268 S.W.3d 270 (Tex.App. — Amarillo 2008, no pet.); Johnson v. State , 2015 WL 5025653 (Tex.App. — Houston [14 th Dist.] 2015) (not design ated for publication); Guerrero v. State , 2015 WL 2266247 (Tex.App. — Houston [1 st Dist.] 2015 ) (not designated for publication); Thias v. State , 2014 WL 6556530 (Tex.App. — Amarillo 2014) (not designated for publicat ion). In this case, t he appellant attempts to distinguish the Thias case bas ed on the fact that it involved a facial challenge (as opposed to an as - applied challenge). (Appellant’s Brief at page 22). However, this Court specifically rejected such a distinction in Thias by stating it “matters not” . Id . at page 2. Regardless of whether the constitutional challenge to §133.102 involves a facial or an as - applied challenge, the issue must first be raised to the trial judge. Id . Additionally, the appellant attempts to bypass the preservation issue b y arguing that he never had a n opportunity to present Issue Two to the trial judge .19

The appellant argues that he did not have an opportunity to inform the trial judge about the $13 3 consolidated co urt cost because it was not included in a bill of costs un til after sentencing and no one made appellant or his counsel aware of the $133 consolidated court cost. See ( A ppellant’s Brief at pages 21 - 23) . Contrary to the appellant’s argument, the State sub mits that the appellant or his counsel could have easily lea rned about the $133 consolidated court cost by requesting a transaction detail or a current bill of costs from the Randall County District Clerk’s office. 2 The State also submits that the appellant had four opportunities to raise the as - applied constitutio nal challenge in Issue Two to the trial judge throughout the proceedings in 18,607 - B and 18,608 - B and failed to do so. First Opportunity to Raise Issue to Trial Judge The first opportunity to raise Issue Two to the trial judge arose after the appellant wa s placed on deferred probation (on July 26, 2007) in 18,607 - B and 18,608 - B. (CR.I - 18,607 - B - pages 11 - 16, 18 - 23); (CR.I - 18,608 - B - at pages 11 - 16, 18 - 23). In both cases, a bill of costs dated August 13, 2007 reflect s that the appellant was charged a $133 conso lidated court cost. (SCR.I - 18,607 - B - pages 28; 44 - 51 );

2 The appellant or his counsel should have known about the $1 33 consolidated court cost because the appellant was directed in the order placing him on deferred probation in 18,607 - B and 18,608 - B to set up payment arrangements for his fines and cou rt costs at the Randall County Di strict Clerk’s office . (CR.I - 18,607 - B - page 20); (CR.I - 18,608 - B - page 20). The appellant or his attorney could have easily obtained a t r a n s a c t i o n d e t a i l o r a current bill of costs reflecting the $133 consolidated court cost while mak ing such paymen t arrangements .20

(SCR.I - 18,608 - B - at pages 28; 34 - 38 ). S i n c e t h e b i l l o f c o s t s i s d a t e d A u g u s t 1 3 , 2 0 0 7 , a r e a s o n a b l e d e d u c t i o n c o u l d b e m a d e t h a t i t w a s available f o r t h e a p p e l l a n t o r h i s c o u n s e l t o v i e w eighteen days after the appellant was placed on deferred probation . Pursuant to Rules 21.4(a) and 22.3 of the Texas Rules of Appellate Procedure, the appella nt still w o u l d h a v e had twelve days after the bill of costs was m a d e available to file a motion for new trial or a motion in arrest of judgment ( i . e . , t h e d e a d l i n e f o r t h e f i l i n g o f t h e s e m o t i o n s i s t h i r t y d a y s f r o m t h e d a t e t h e a p p e l l a n t w a s p l a c e d o n d e f e r r e d p r o b a t i o n ) . B y f i l i n g o n e o f t h e s e m o t i o n s i n 1 8 , 6 0 7 - B a n d 1 8 , 6 0 8 - B b y t h e r e q u i r e d d u e d a t e , t h e trial judge c o u l d h a v e r e t a i n e d a u t h o r i t y t o reconsider t h e assessment of the $133 consolidated court cost . See Guerrero v. State , supra. A r e v i e w o f t h e r e c o r d , h o w e v e r , s h o w s t h a t n o such motions were ev er filed within this time period . Hence, the appellant had the opportunity to raise the constitutional challenge in Issue Two to the trial judge in 2007 and failed to do so. Second Opportunity to Raise Issue to Trial Judge The second opportunity to raise Issue Two to the trial j udge arose during the motion to proceed hearing in 18,607 - B and 18,608 - B ( which was held on March 24, 2010 ) . (RR.IV - 6 - 106) . As stated previously, the A u g u s t 1 3 , 2 0 0 7 bill of cost s in 18,607 - B and 18,608 - B contained the $133 consolidated court cost.21

( SCR.I - 18,607 - B - page 28 ); (SCR.I - 18,608 - B - page 28 ). The appellant was obviously aware of the consolidated court cost s b y t h e March 24, 2010 hearing since the se costs were contained in the August 13, 2007 bill of costs and since the appellant had already pai d off all of the $133 consolidated court cost in 18,607 - B by March 18, 2009 . 3 (CR.I - 18,607 - B - pages 11 - 16, 19 - 23); (CR.I - 18,608 - B - pages 11 - 16, 19 - 23); (SCR.I - 18,607 - B - pages 28; 29; 30 - 43; 44 - 51 ); (SCR.I - 18,608 - B - page 28 ). Hence, the appellant had the oppor tunity to raise the as - applied constitutional challenge in Issue Two to the trial judge at the March 24, 2010 proceeding and again failed to do so. Third Oppo rtunity to Raise Issue to Trial Judge The third opportunity to raise Issue Two to the trial judg e arose after the March 24, 2010 pro ceeding . (RR.IV - 68; 105 - 106). As established above, the appellant was obviously aware by March 24, 2010 that a $133 consolidated court cost was assessed in each case. Pursuant to Rules 21.4(a) and 22.3 of the Texas Rul es of Appe llate Procedure, the trial judge would have had adequate time to reconsider his ruling (including the assessment of a $133 consolidated court cost) if the appellant had filed a motion for new trial or a motion in arrest of judgment

3 The record reflects that the appellant did not pay the fines and court costs in 18,608 - B until after the March 24, 2010 pr oceeding. (SCR.I - 18,608 - B - page 28 - 29; 30 - 33; 34 - 38 ). The appellant obviously paid off the fines and court costs in 18,607 - B before he began paying off the fines and court costs in 18,608 - B.22

within thirty days after he was adjudicated guilty and sentenced to twenty years in prison . See Guerrero v. State , supra. Although appe l l a t e c o u n s e l f i l e d a motion for new trial in 18,607 - B and 18,608 - B within thirty days after each sentence was impose d, he failed to raise t he as - applied constitutional complaint in the motion s for new trial. (CR.I - 18,607 - B - page 120 - 125); (CR.I - 18,608 - B - pages 120 - 125). The motion s for new trial w e r e eventually o verrul ed by operation of law. A p p e l l a t e c o u n s e l never filed a motion in arrest of j udgment in eit her case within the designated time period . Hence, the appellant had another opportunity in 2010 to raise the constitutional challenge in Issu e Two to the trial judge and failed to do so. Fourth Oppo rtunity to Raise Issue to Trial Judge The fourth and final opportunity to raise Issue Two to the trial judge arose in 2015. In 2011, the appellant f iled state habeas writ applications challenging his conviction and sen tence in 18,607 - B and 18,608 - B . (CR.I - 18,607 - B - page 149); (CR.I - 18,608 - B - page 1 49). The Texas Court of Criminal Appeals denied these writ applications without written order. (CR.I - 18,607 - B - page 149); (CR.I - 18,608 - B - page 149). On September 1, 2012, the appellant filed federal habeas writ application s in 18,607 - B and 18,608 - B. (CR.I - 18,607 - B - page 149); (CR.I - 18,608 - B - page 149). T he United States District judge conditionally granted the appellant’s federal writ23

applications on March 17, 2015 and ordered that the convictions in 18,607 - B and 18,608 - B be vacat ed unless the appellant is a fforded an o ut of time appeal with assistance of counsel within 60 days from the date of the order . (CR.I - 18,607 - B page 177) ; (CR.I - 18,608 - B - page 177). O n April 15, 2015, the trial judge appointed John Bennett to represent the appellant on appeal in 18,6 07 - B and 18,608 - B. The State submits that Mr. Bennett could have filed a motion for new trial or a motion in arrest of judgment raising the constitutional complaint in Issue Two within thirty days after he was appointed as appellate counsel. See Rules 21. 4(a) and 22.3 of the Texas Rules of Appellate Procedure . No such motions were ever filed by Mr. Bennett within this thirty day time period. Although the appellant filed pro se motions for new trial on April 29, 2015 , he failed to raise the as - applied constitutional complaint asserted in Issue Two in his pro se motions. (CR.I - 18,607 - B - page 163); (CR.I - 18,608 - B - page 163). Hence, the appellant had this final opportunity in 2015 to raise Issue Two to the trial judge and failed to do so. Since the appellant failed on four separate occasions to raise the as - applied constitutional challenge to the trial judge, Issue Two was not preserved for appellate review and should be denied. Even though the appellant failed to preserve Issue Tw o for appellate review, other avenues exist in which the appellant could still seek to raise his as -24

applied constitutional claim regarding §133.102. The appellant could raise his complaint in a habeas corpus proceeding or in a separate declaratory action. See Thomas v. State , 445 S.W.3d 288, 291 (Tex.App. — Houston [1 st Dist.] 2013 , no pet. ). However, a s p r e v i o u s l y s t a t e d , the appellant’s failure to present the complaint to the trial judge on four prior occasions prevents him from raising it now on direct appeal . In sum, the St ate submits that appellant or his counsel should have obtained payment records (i.e., a transaction detail, p a y m e n t receipts, and/or a bill of costs) from the Randall County District Clerk’s office in 18,607 - B and 18,608 - B before writing his direct appeal. If the se records w e r e obtained, it would have been apparent that the content of this brief is frivolous.25 PRAYER WHEREFORE, Premises Considered, the State prays that the relief requested by the appellant be denied and that this Honorable Court affirm the judgment of the trial judge in Cause No s . 18,607 - B and 18,608 - B . Respectfully submitted, JAMES A. FARREN CRIMINAL DISTRICT ATTORNEY RANDALL COUNTY, TEXAS s/ Kristy Wright KRISTY WRIGHT SBN: 00798601 kwright@randallcounty.org Assistant Criminal District Attorney Randall County Justice Center 2309 Russell Long Blvd., Suite 120 Canyon, Texas 79015 (806) 468 - 5570 FAX (806) 468 - 5566 CERTIFICATE OF COMPLIANCE I h ereby certify that the word cou nt of this entire brief is 4, 6 6 4 words. s/ Kristy Wright KRISTY WRIGHT26 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing State’s Brief has been served on John Bennett, Attorney for Appellant (Michael Don Denton ), P.O. Box 19144, Amarillo, Texas 79114, by depositing same in the United States mail, postage prepaid on this 1 8 th day of September , 2015. s/ Kristy Wright KRISTY WRIGHT