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 181st 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, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 9/18/2015 11:11:46 AM VIVIAN LONG CLERK
2

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 NEVER 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 REVIEW. 

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 17

ARGUMENT 17-24
3

PRAYER 25

CERTIFICATE OF COMPLIANCE 25

CERTIFICATE OF SERVICE 26
4

INDEX OF AUTHORITIES

TEXAS CASES

Guerrero v. State, 2015 WL 2266247 18, 20, 22

 (Tex.App.—Houston [1st Dist.] 2015) (not designated for publication)

Johnson v. State, 2015 WL 5025653 18

 (Tex.App.—Houston [14th 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)

Thias v. State, 2014 WL 6556530 18

 (Tex.App.—Amarillo 2014) (not designated for publication)

Thomas v. State, 445 S.W.3d 288 24

 (Tex.App.—Houston [1st 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, 24

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, 23
5

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

TO THE HONORABLE COURT OF APPEALS:

Comes now, the State of Texas in the above styled and numbered causes

and files this brief in response to the brief of the Appellant, Michael Don Denton. 

The appellant was convicted of the felony offenses of delivery of a controlled 

substance (4 grams or more but less than 200 grams) in Cause Nos. 18,607-B and 

18,608-B, in 181

st District Court of Randall County, the Honorable John Board, 

Judge presiding.

THE CASE IN BRIEF

THE CHARGES DELIVERY OF A CONTROLLED SUBSTANCE (4 

GRAMS OR MORE BUT LESS THAN 200 GRAMS) IN 

CAUSE NOS. 18,607-B & 18,608-B

THE PLEAS GUILTY

THE VERDICTS (JUDGE) DEFERRED ADJUDICATION OF GUILT IN EACH CASE

THE PUNISHMENTS (JUDGE) FOUR (4) YEARS DEFERRED ADJUDICATION 

PROBATION & A $2,000.00 FINE IN EACH CASE
6

VIOLATIONS OF PROBATION STATE FILED MOTIONS TO REVOKE ORDER

GRANTING UNADJUDICATED PROBATION

THE PLEAS APPELLANT PLED TRUE IN EACH CASE

THE PUNISHMENTS (JUDGE) PROBATED SENTENCE OF FOUR (4) YEARS 

EXTENDED FOR ONE (1) MORE YEAR AND 

APPELLANT ORDERED TO PARTICIPATE IN AND 

COMPLETE COURT ORDERED RESIDENTIAL 

TREATMENT (CRTC) IN EACH CASE

REVOCATIONS STATE FILED AN AMENDED MOTION TO REVOKE 

ORDER GRANTING UNADJUDICATED PROBATION

IN EACH CASE

DISMISSALS STATE FILED A MOTION TO DISMISS AMENDED 

MOTION TO REVOKE IN EACH CASE AND TRIAL 

JUDGE DISMISSED BOTH MOTIONS

REVOCATIONS STATE FILED A MOTION TO REVOKE ORDER 

GRANTING UNADJUDICATED PROBATION IN EACH 

CASE

THE PLEAS APPELLANT PLED NOT TRUE TO THE ALLEGATIONS 

IN THE STATE’S MOTION TO REVOKE IN 18,607-B 

& 18,608-B. IN EACH CASE, STATE WAIVED 

PARAGRAPHS 1 & 3. THE TRIAL JUDGE FOUND 

PARAGRAPHS 2, 4, & 5 TO BE TRUE

THE PUNISHMENTS (JUDGE) TWENTY (20) YEARS IN PRISON IN EACH CASE. NO 

FINE WAS ASSESSED. JUDGE ORDERED THE 

SENTENCES IN 18,607-B AND 18,608-B TO RUN 

CONCURRENTLY
7

STATEMENT 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 grams). (CR.I-18,608-Bpage 6)

February 7, 2007 Indictment filed against appellant in 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-Bpage 6)

July 26, 2007 Appellant 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 proceedings. (CR.I-18,607-B-pages 17, 18);

(CR.I-18,608-B-pages 17, 18)

August 13, 2007 Bill of cost reflected that appellant owed a $2,000 fine 

and a $133 consolidated court cost in both 18,607-B and 

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 

unadjudicated 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 fines 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 conditions of probation. (CR.I-18,608-Bpage 34). Judge extended the probationary period in 

18,608-B for one year and ordered appellant to 
8

participate in and complete CRTC. (CR.I-18,608-B-page 

34). 

June 9, 2009 Judge signed a supplemental order in 18,607-B 

amending the conditions of probation. (CR.I-18,607-Bpage 34). Judge 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 

unadjudicated 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 

unadjudicated 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 completed 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 State filed a motion to dismiss the amended motion to 

revoke dated September 21, 2009 in 18,607-B and 

18,608-B. Judge dismissed the amended motions. (CR.I18,607-B-page 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 Judge held hearing in 18,607-B and 18,608-B on State’s 

motion to revoke dated February 17, 2010. (RR.III-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 24, 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 dated February 17, 2010. (RR.IV-6-

106). In both cases, State waived paragraphs 1 and 3 of 

the motion to revoke. (RR.IV-44; 68). At the hearing, 

Audra Laminack (a probation officer) testified that 

appellant failed to submit 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 TB 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 paragraphs 2, 4, and 5 to be true in both 

18,607-B and 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 

concurrently. No fines were assessed. (CR.I-18,607-Bpages 118-119); (CR.I-18,608-B-pages 118-119); (RR.IV105-106)

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. (SCR.I-18,608-B-page 29) 

April 6, 2010 David Martinez was retained as appellate counsel in 

each case. (CR.I-18,607-B-page 147); (CR.I-18,608-Bpage 147)

April 26, 2010 David Martinez filed motions 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-18,608-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-Bpage 147)

September 7, 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-Bpage 147)

September 27, 2010 David Martinez failed to file appellate briefs in 18,607-B 

and 18,608-B. (CR.I-18,607-B-page 147-148); (CR.I18,608-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 

diligently pursue the appeals, and whether new counsel 

should be appointed to pursue the appeals. (CR.I18,607-B-page 148); (CR.I-18,608-B-page 148)

October 14, 2010 David Martinez wrote appellant a letter advising him to 

withdraw his direct appeals in 18,607-B and 18,608-B in 

order to pursue a state writ of habeas corpus. (CR.I18,607-B-page 154); (CR.I-18,608-B-page 154)

October 21, 2010 Appellant 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)

October 27, 2010 David Martinez filed a motion to dismiss the appeals in 

18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I18,608-B-page 149)
11

October 28, 2010 Seventh Court of Appeals granted the motion and 

dismissed the appeal in 18,607-B and 18,608-B. (CR.I18,607-B-page 149); (CR.I-18,608-B-page 149 )

June 22, 2011 A state habeas writ application was filed challenging the 

conviction and sentence in 18,607-B and 18,608-B. (CR.I18,607-B-page 149); (CR.I-18,608-B-page 149)

September 21, 2011 Texas Court of Criminal Appeals 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 Appellant filed an additional pro se state habeas writ 

application challenging his conviction and sentence in 

18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I18,608-B-page 149) 

August 1, 2012 Texas Court of Criminal Appeals dismissed the 

appellant’s writ applications in 18,607-B and 18,608-B as 

subsequent applications in violation of Article 11.07(4) 

of the Texas Code of Criminal Procedure. (CR.I-18,607-

B-page 149); (CR.I-18,608-B-page 149) 

September 1, 2012 Appellant filed a federal habeas writ application in 

18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I18,608-B-page 149) 

May 1, 2014 Evidentiary hearing was held on the federal writ 

applications. (CR.I-18,607-B-page 150); (CR.I-18,608-Bpage 150) 

March 17, 2015 United States District Judge conditionally granted the 

appellant’s applications for a federal writ of habeas 

corpus and ordered that his convictions in 18,607-B and 

18,608-B be vacated unless the appellant is given out of 

time appeals with the assistance of counsel within 60 
12

days from the date of order. (CR.I-18,607-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-Bpage 144) 

April 23, 2015 John Bennett filed notice of appeal in 18,607-B and 

18,608-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-B
13

COUNTERPOINT NO. 1, RESTATED

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 NEVER REASSESSED THE 

$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 is 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 date the appellant 

was adjudicated guilty and given a prison sentence). Although the trial judge 

imposed a $2,000 fine when the appellant was placed on deferred probation, the 

trial judge never reassessed the $2,000 fine at the March 24, 2010 proceeding 

and the written judgment contained no mention of such fine. Additionally, the 

bill of costs does not show that the appellant was charged a $2,000 fine after 

sentencing. The bill of costs merely shows that a $2,000 fine was charged, but 

does not indicate when the fine was charged or when the appellant made 

payments to the fine. More importantly, documents obtained from the Randall 
14

County District Clerk’s office clearly show that the appellant paid off his $2,000 

fine on March 18, 2009 (while he was still on deferred probation). Accordingly, 

Issue One is without merit and should be denied.

ARGUMENT

In Issue One, the appellant alleges that a $2,000 fine was wrongfully 

assessed in 18,607-B.

1

(Appellant’s Brief at pages 18-20). According to the 

appellant, the trial 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, the appellant asserts that 

the bill of costs reflects that the appellant continued to be charged the $2,000

fine after sentencing. (Appellant’s Brief at page 18). However, the State submits 

that Issue One should be denied because the appellant misrepresents the record 

and the claim has no merit.

In his brief, the 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, 19-20).
15

State, 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). The appellant’s interpretation 

of the law is correct, but he completely distorts the record in order for the Taylor

case to apply to the facts of this case. As will 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 reassessed a $2,000 fine after adjudicating guilt on March 24, 2010. 

(CR.I-18,607-B-pages 11-16, 19-23; 118-119). The fine was not orally reassessed 

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) 

reassessed 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, the only evidence the appellant relies on to 

support his 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, the bill of costs dated August 24, 2015 merely shows that the appellant 
16

was charged a $2,000 fine in 18,607-B and that he paid off such fine. (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 appellant made payments to the fine. Likewise, 

none of the bill of costs contained in the record show that 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 overreached and misrepresented the 

record by making the following assertion—the bill of costs shows that he was 

charged the $2,000 fine after sentencing. (Appellant’s Brief at pages 18-19). 

Instead of overreaching, the appellant or his counsel should have requested 

a payment transaction detail and/or payment receipts from the Randall County 

District Clerk’s office in order to ascertain when the $2,000 fine was charged and 

paid off. By doing so, the appellant and his counsel would have realized that the

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-pages 

30-43; 44-51). It is reasonable to deduce from the record 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 allegations in Issue 

One are frivolous, meritless, and should be denied.
17

COUNTERPOINT NO. 2, RESTATED

THE APPELLANT FAILED TO PRESERVE ISSUE TWO FOR APPELLATE REVIEW. 

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

The appellant failed to preserve Issue Two for appellate review. In this 

regard, the appellant had four opportunities to raise his as-applied constitutional 

challenge regarding Section 133.102 of the Texas Local Government Code to the 

trial judge and failed to do so. Hence, Issue Two was not preserved for appellate 

review and should be denied. 

ARGUMENT

Failure to Preserve Error for Appellate Review

In Issue Two, the appellant alleges that Section 133.102(e)(7) of the Texas 

Local Government Code is unconstitutional as applied to him. (Appellant’s Brief 

at pages 20-33). The appellant specifically asserts that he should not be required 

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 did not 

preserve Issue Two for appellate review 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. 2009); Wyatt v. State, 

268 S.W.3d 270 (Tex.App.—Amarillo 2008, no pet.); Johnson v. State, 2015 WL 

5025653 (Tex.App.—Houston [14th Dist.] 2015) (not designated for publication); 

Guerrero v. State, 2015 WL 2266247 (Tex.App.—Houston [1st Dist.] 2015) (not 

designated for publication); Thias v. State, 2014 WL 6556530 (Tex.App.—Amarillo 

2014) (not designated for publication). In this case, the appellant attempts to 

distinguish the Thias case based 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 by 

arguing that he never had an 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 $133 consolidated court cost because it was not included in a bill of 

costs until after sentencing and no one made appellant or his counsel aware of 

the $133 consolidated court cost. See (Appellant’s Brief at pages 21-23). Contrary 

to the appellant’s argument, the State submits that the appellant or his counsel 

could have easily learned 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.2The State also submits that the appellant had four opportunities to raise 

the as-applied constitutional 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 was 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 reflects that the appellant 

was charged a $133 consolidated court cost. (SCR.I-18,607-B-pages 28; 44-51); 

 

2

 The appellant or his counsel should have known about the $133 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 court costs at the Randall 

County District 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 transaction detail or a current bill of costs reflecting 

the $133 consolidated court cost while making such payment arrangements.
20

(SCR.I-18,608-B-at pages 28; 34-38). Since the bill of costs is dated August 13,

2007, a reasonable deduction could be made that it was available for the

appellant or his counsel to view 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 appellant still would have had twelve days after the bill 

of costs was made available to file a motion for new trial or a motion in arrest of 

judgment (i.e., the deadline for the filing of these motions is thirty days from the

date the appellant was placed on deferred probation). By filing one of these

motions in 18,607-B and 18,608-B by the required due date, the trial judge could

have retained authority to reconsider the assessment of the $133 consolidated 

court cost. See Guerrero v. State, supra. A review of the record, however, shows

that no such motions were ever 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 judge 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 August 13, 2007 bill of 

costs 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 costs by the March 24, 2010 hearing since these

costs were contained in the August 13, 2007 bill of costs and since the appellant 

had already paid 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 opportunity 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 Opportunity to Raise Issue to Trial Judge

The third opportunity to raise Issue Two to the trial judge arose after the 

March 24, 2010 proceeding. (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 

Rules of Appellate 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 proceeding. (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 appellate counsel filed a motion

for new trial in 18,607-B and 18,608-B within thirty days after each sentence was 

imposed, he failed to raise the as-applied constitutional complaint in the motions

for new trial. (CR.I-18,607-B-page 120-125); (CR.I-18,608-B-pages 120-125). The 

motions for new trial were eventually overruled by operation of law. Appellate

counsel never filed a motion in arrest of judgment in either case within the 

designated time period. Hence, the appellant had another opportunity in 2010 to 

raise the constitutional challenge in Issue Two to the trial judge and failed to do 

so. 

Fourth Opportunity 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 filed state habeas writ applications challenging his

conviction and sentence in 18,607-B and 18,608-B. (CR.I-18,607-B-page 149); 

(CR.I-18,608-B-page 149). 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 applications

in 18,607-B and 18,608-B. (CR.I-18,607-B-page 149); (CR.I-18,608-B-page 149).

The United States District judge conditionally granted the appellant’s federal writ 
23

applications on March 17, 2015 and ordered that the convictions in 18,607-B and 

18,608-B be vacated unless the appellant is afforded an out of time appeal with 

assistance of counsel within 60 days from the date of the order. (CR.I-18,607-Bpage 177); (CR.I-18,608-B-page 177). On April 15, 2015, the trial judge appointed 

John Bennett to represent the appellant on appeal in 18,607-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 Two 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 [1st Dist.] 2013, no 

pet.). However, as previously stated, 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 State submits that appellant or his counsel should have 

obtained payment records (i.e., a transaction detail, payment 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 these records were 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 Nos. 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 hereby certify that the word count of this entire brief is 4,664 words.

s/ Kristy Wright

KRISTY WRIGHT
26

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 18

th day of September, 2015.

s/ Kristy Wright

KRISTY WRIGHT