PD 0665-15 & 666-15

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________________________

GREGORIO GUERRERO,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

_______________________________________________

On Petition for Discretionary Review from the 

First Court of Appeals in Nos. 01-13-00821-CR

and 01-13-00821-CR affirming the conviction 

in cause numbers 1172094 & 1172095,

From the 339th 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

Fax: (713) 368-9278

Counsel for Appellant

July 14, 2015

PD-0665-15 & PD-0666-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/14/2015 2:00:26 PM

Accepted 7/15/2015 4:35:31 PM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Mr. Gregorio Guerrero

TDCJ# 01893089

Clemens Unit

11034 Hwy 36

Brazoria, TX 77422

TRIAL PROSECUTOR: Mr. Joshua Phanco

APPELLATE PROSECUTOR Ms. Carly Dessauer

Assistant District Attorney

Harris County, Texas

1201 Franklin, 6th Floor

Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mr. Brian Middleton 

7322 SW Fry #1980

Houston, Texas 77074

PRESIDING JUDGE: Hon. Maria T. Jackson, Presiding Judge

339th District Court 

Harris County, Texas

1201 Franklin, 14th floor

Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood

Assistant Public Defender

Harris County, Texas

1201 Franklin, 13th Floor

Houston, Texas 77002

-2-
TABLE OF CONTENTS

PAGE

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

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

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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.

Guerrero until three weeks 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?. . . . . . . . . . . . . . . . . . . 7

Reasons for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . 8

The error was preserved based upon precedent from this Court.. . . . . . . . . 9

No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . 10

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

-3-
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

-4-
INDEX OF AUTHORITIES

PAGE

Cases:

Cardenas v. State, 

423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Guerrero v. State, 

01-13-00821-CR, 01-13-00822-CR, 2015 WL 2266247

(Tex. App.—Houston [1st Dist.] May 14, 2015, no. pet. h.). . . . . . . . . passim

Johnson v. State, 

423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Landers v. State, 

402 S.W.3d 252 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

Statutes and Rules:

TEX. HUM. RES. CODE ANN. § 115.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. LOC. GOV'T CODE ANN. § 133.102(e)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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

-5-
STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASES

1

No. 01-13-00821-CR

Trial cause number 1172094

This is an appeal from a conviction for aggravated robbery. (C.R. at 58). Mr.

Guerrero pleaded guilty and received deferred adjudication in March 2010. (C.R. at

33-36, 41). A motion to adjudicate was filed on March 12, 2013. (C.R. at 48). After

hearing evidence, the trial court sentenced Mr. Guerrero to 20 years confinement in

the Texas Department of Criminal Justice - Institutional Division. and a $10,000 fine.

(C.R. at 58). Court costs were assessed on the judgment as $304. (C.R. at 58). An

accompanying bill of costs lists court costs as $279.50. (C.R. at 60). Timely notice of

appeal was filed. (C.R. at 62).

No. 01-13-00822-CR

Trial cause number 1172095

This is an appeal from a conviction for evading arrest with a motor vehicle.

(C.R. at 59). Mr. Guerrero pleaded guilty and received deferred adjudication in March

2010. (C.R. at 35-37, 43). A motion to adjudicate was filed on March 12, 2013. (C.R.

at 49). After hearing evidence, the trial court sentenced Mr. Guerrero to two years

 Each record citation is for the specific case designated because two separate

1

records were prepared.

-6-
confinement in the State Jail Division - Texas Department of Criminal Justice. (C.R.

at 59). An accompanying bill of costs lists court costs as $334.00. (C.R. at 61).

Timely notice of appeal was filed. (C.R. at 63).

STATEMENT OF THE PROCEDURAL HISTORY

In an unpublished opinion, the First Court of Appeals affirmed Mr. Guerrero’s

convictions in one opinion. Guerrero v. State, 01-13-00821-CR, 01-13-00822-CR, 2015

WL 2266247(Tex. App.—Houston [1st Dist.] May 14, 2015, no. pet. h.). No motion

for rehearing was filed. After an extension of time, this petition is timely if filed on

or before July 15, 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.

Guerrero until three weeks 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?

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).

-7-
STATEMENT OF FACTS RELATIVE TO GROUND RAISED

In both cases Mr. Guerrero was assessed the consolidated court cost which

includes subsection 6 - funds for comprehensive rehabilitation. Mr. Guerrero

challenged the fee as an unconstitutional tax violating the separation of powers.

Guerrero, 2015 WL 2266247, at *4.

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

CODEANN. § 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.

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:

Here, we conclude that Guerrero forfeited his separation of powers

argument by failing to raise it in the trial court, because his challenge

does not constitute a denial of an absolute systemic requirement.

Guerrero did not file a motion for new trial or motion in arrest of

judgment challenging the constitutionality of assessing a cost to support

the comprehensive rehabilitation fund. 

-8-
Guerrero , 2015 WL 2266247, at *4.

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).

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

constitutional challenge on appeal:

These cases [Johnson and Cardenas], however, did not address the

constitutionality of court costs, and, therefore, do not support

Guerrero's contention that he may assert his constitutional claim for the

first time on appeal. Accordingly, we hold that Guerrero failed to

preserve his constitutional challenge to Local Government Code section

133.102's allocation of funds to the comprehensive rehabilitation fund.

See Mendez, 138 S.W.3d at 342 (except for complaintsinvolving systemic

requirements and non-waivable rights, constitutional complaints must

be preserved in trial court).

-9-
Guerrero, 2015 WL 2266247, at *4.

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

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 bills in these cases were created on September 19, 2013 and

September 20, 2013. The judgment was entered in both cases on August 29, 2013.

Three weeks had passed. This Court has held that Mr. Guerrero was not required to

-10-
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. Guerrero 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

Gregorio Guerrero

-11-
CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 14, 2015, a copy

of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the

HarrisCounty District Attorney’sOffice through texfile.com at the following address:

Carly Dessauer

Assistant District Attorney

1201 Franklin Street, 6th Floor

Houston, TX 77002

dessauer_carly@dao.hctx.net

Lisa McMinn

Lisa.McMinn@SPA.texas.gov

Jani Maselli Wood

_________________________________

JANI J. MASELLI WOOD

-12-
CERTIFICATE OF COMPLIANCE

Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complieswith 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 1193 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

-13-
Appendix A

Opinion Guerrero v. State
2015 WL 2266247

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND

SIGNING OF OPINIONS.

DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).

Court of Appeals of Texas, 

Houston (1st Dist.

Gregorio Guerrero, Appellant

v.

The State of Texas, Appellee

NO. 01–13–00821–CR, NO. 01–13–00822–CR |

Opinion issued May 14, 2015

On Appeal from the 339th District Court, Harris County,

Texas, Trial Court Case Nos. 1172094 & 1172095

Attorneys and Law Firms

Jani Wood, for Appellant.

Alan Curry, Carly Dessauer, Devon Anderson, for State of

Texas.

Panel consists of Justices Keyes, Huddle, and Lloyd.

MEMORANDUM OPINION

Rebeca Huddle, Justice

*1 Appellant Gregorio Guerrero was charged by indictment

with aggravated robbery with a deadly weapon and evading

arrest. He pleaded guilty, and the trial court deferred his

adjudication. Three years later, the State filed a motion to

adjudicate Guerrero's guilt, alleging that he had violated his

community supervision conditions. After conducting a

hearing on the State's motion, the trial court found the State's

allegations true and sentenced Guerrero to 20 years'

confinement for the aggravated robbery charge and two years'

confinement for the evading arrest charge, with the sentences

to run concurrently. In two issues, Guerrero contends that the

trial court erred in (1) unconstitutionally interfering with plea

negotiations, which violated his right to due process and to

have the proceeding adjudicated by a neutral and detached

judge, and (2) assessing an unconstitutional court cost against

him because the “consolidated court cost” authorized by

Texas Local GovernmentCode section 133.012(a)(1) violates

the Texas Constitution. We affirm.

1

Background

The State moved to adjudicate Guerrero's guilt on his

aggravated robbery and evading arrest charges in March

2013. The trial court conducted a hearing on the State's

motion. At the beginning of the hearing, the trial court asked

Guerrero whether he and the State had reached a plea bargain.

The following exchange occurred:

THE COURT: Okay. All right. I remember the Court did

offer you—make you give a recommendation or give you a

recommended offer; is that correct?

APPELLANT'S COUNSEL: That is correct.

THE COURT: What was the offer?

APPELLANT'S COUNSEL: Previous offer by the State was

ten years.

PROSECUTOR: That's correct, Judge, on all three cases,

both the aggravated robbery prior, the evading arrest prior

and the aggravated robbery that is currently pending. And he's

turned all of that down.

THE COURT: Okay. So do you understand that going

forward, the State has witnesses and this Court is going to

hear all of the testimony. And you received probation on a

first degree felony aggravated robbery with a deadly weapon,

which the maximum amount you can receive is ninety-nine

years, or life, in prison. You understand that?

THE DEFENDANT: Yes, ma'am.

THE COURT: Okay. And is it your desire to reject the State's

offer of ten years and go forward with the hearing?

THE DEFENDANT: Yes, ma'am.

Following that exchange, the State presented its evidence

showing that Guerrero violated his community supervision

conditions. The trial court found all of the State's allegations

true and sentenced Guerrero to 20 years' confinement for the

aggravated robbery charge and two years' confinement for the

evading arrest charge, with the sentences to run concurrently.

That same day, on August 29, 2013, the trial court entered

judgment and assessed $304 in court costs for the aggravated

robbery conviction and $334 in court costs for the evading

arrest conviction. Approximately 20 days later, on September

19 and 20, the district clerk issued a bill of cost for each

conviction, which assessed $133 as a “consolidated court

cost.” Guerrero did not file a motion for new trial.

Guerrero failed to preserve any complaint regarding plea

negotiations

*2 In his first issue in appellate cause number

01–13–00821–CR, Guerrero contends that the trial court

violated his right to due process and to have his case

adjudicated by a neutral and detached judge because the trial

court interjected itself in the plea-bargaining process. The
State contends that Guerrero failed to preserve thisissue. We

agree with the State.

Generally, to preserve a complaint for appellate review, a

party must make a timely and specific request, objection, or

motion in the trial court and obtain an adverse ruling from the

trial court. Tex.R.App. P. 33.1(a). Except for complaints

involving systemic requirements, or rights that are waivable

only, all other complaints, whether constitutional, statutory,

or otherwise, are forfeited by failure to comply with Rule

33.1(a). Mendez v. State, 138 S.W.3d 334, 342

(Tex.Crim.App.2004). The improper intrusion by a trial court

into the plea-bargaining process is not systemic error and may

not be brought for the first time on appeal. Moore v. State,

295 S.W.3d 329, 333 (Tex.Crim.App.2009).

We conclude that Guerrero failed to preserve his complaint

that the trial court unconstitutionally interfered with the

plea-bargaining process. At the beginning of the hearing, the

trial court asked Guerrero whether he and the State had

reached a plea bargain. The trial court stated “I remember the

Court did offer you—make you give a recommendation or

give you a recommended offer; is that correct?” Although that

statement is unclear, the record makes clear that the trial court

was referring to a plea offer made by the State. Guerrero's

trial counsel stated that the “[p]revious offer by the State was

ten years.” Additionally, when the trial court asked Guerrero

if he wished to reject the plea and continue with the hearing,

he answered “Yes, ma'am.” According to Guerrero, the trial

court's reference to “the court's offer” constituted an improper

interjection in the pleabargaining process, which violated his

right to due process and to have the proceeding adjudicated

by a neutral and detached judge.

However, Guerrero did not complain to the trial court that the

court improperly interjected itself into the plea-bargaining

process. Likewise, Guerrero made no objection that the trial

court's comments and questions violated his due process

rights. Accordingly, we conclude that Guerrero failed to

preserve any complaint regarding the trial court interjecting

itself into the plea-bargaining process. See Tex.R.App. P.

33.1(a); Anderson v. State, 301 S.W.3d 276, 280

(Tex.Crim.App.2009)(“[O]ur prior decisions make clear that

numerous constitutional rights, including those that implicate

a defendant's due process rights, may be forfeited for

purposes of appellate review unless properly preserved.”);

Moore, 295 S.W.3d at 333 (holding appellant failed to

preserve issue because he did not object to trial court's

allegedly improper intrusion into pleabargaining process).

We overrule Guerrero's first issue in appellate cause number

01–13–00821–CR.

Constitutionality of the “comprehensive rehabilitation”

fund in Local Government Code section 133.102

In his second issue in appellate cause number

01–13–00821–CR and sole issue in appellate cause number

01–13–00822–CR, Guerrero contends the “comprehensive

rehabilitation” fund authorized by Local Government Code

section 133.102 amounts to an unconstitutional tax because

it “does not relate[ ] back to the courts” and, therefore,

collecting funds for the “comprehensive rehabilitation” fund

violates the separation of powers clause of the Texas

Constitution. See Tex. Const. art. II, § 1.

A. Standard of Review

*3 When reviewing a constitutional challenge, we presume

that the statute is valid and that the legislature was neither

unreasonable nor arbitrary in enacting it. State v. Rosseau,

396 S.W.3d 550, 557 (Tex.Crim.App.2013); Curry v. State,

186 S.W.3d 39, 42 (Tex.App.–Houston [1st Dist.] 2005, no

pet.); see also State ex. rel. Lykos v. Fine, 330 S.W.3d 904,

908–09 (Tex.Crim.App.2011). We must uphold the statute if

it can be “reasonably construed in a manner consistent with

the legislative intent and is not repugnant to the Constitution.”

Curry, 186 S.W.3d at 42. When statutory authority exists to

sustain a constitutional reading of a statute, we favor that

interpretation over any other. See id.; see also Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978) (en

banc) (“Everyreasonable intendment and presumption will be

made in favor of the constitutionality and validity of a statute,

until the contrary is clearly shown.”) (citation omitted);

Oakley v. State, 807 S.W.2d 378, 381 (Tex.App.–Houston

[14th Dist.] 1991) (“If a statute is capable of two

constructions, one of which sustains its validity, this court will

uphold the interpretation that sustains its validity.”), aff'd, 830

S.W.2d 107 (Tex.Crim.App.1992).

The party challenging the statute bears the burden of

establishing the statute's unconstitutionality. Rosseau, 396

S.W.3d at 557. “A facial challenge to a statute is the most

difficult challenge to mount successfully because the

challenger must establish that no set of circumstances exists

under which the statute will be valid.” Santikos v. State, 836

S.W.2d 631, 633 (Tex.Crim.App.1992) (en banc).

B. Applicable Law

Section 133.102(a)(1) of the Texas Local Government Code

mandates that a person convicted of a felony must pay $133

“as a court cost, in addition to all other costs.” Tex. Loc.

Gov't Code Ann.. § 133.102(a)(1) (West Supp.2014). The

collected amounts must be remitted to the state comptroller,

who in turn must allocate this money to 14 specified

“accounts and funds.” The statute provides that 9.8218

percent of the $133 cost is allocated to the “comprehensive

rehabilitation” fund. See id. § 133.102(e)(6) (West

Supp.2014). Subsection (e) provides that the designated funds

“may not receive less than” certain specified percentages of

the collected amounts. Id. Additionally, section 133.058

permits a municipality or county to retain 10 percent of

collected amounts as a “service fee.” Id. § 133.058(a) (West

Supp.2014).

C. Analysis
Guerrero contends that section 133.102 violates the

separation of powers clause of the Texas Constitution because

it requires a convicted felon to pay the cost of

“comprehensive rehabilitation,” which is unrelated to any

function of the courts. Guerrero contends that he may raise his

constitutional challenge to the court cost for the first time on

appeal. We agree with the State that Guerrero may not assert

his constitutional claim for the first time on appeal and he

therefore waived any constitutional challenge to Local

Government Code section 133.102.

Ordinarily, to preserve error, there must be a timely, specific

objection and an adverse ruling by the trial court. Tex.R.App.

P. 33.1; see Lozano v. State, 359 S.W.3d 790, 823

(Tex.App.–Fort Worth 2012, pet. ref'd) (“To be timely, an

objection must be made as soon as the basis for the objection

becomes apparent.”). Except for complaints involving

systemic requirements, or rights that are waivable only, all

other complaints, whether constitutional, statutory, or

otherwise, are forfeited by failure to comply with Rule

33.1(a). Mendez v. State, 138 S.W.3d 334, 342

(Tex.Crim.App.2004).

“Examples of rights that are waivable-only include the rights

to the assistance of counsel, the right to trial by jury, and a

right of appointed counsel to have ten days of trial

preparation which a statute specificallymade waivable-only.”

Aldrich v. State, 104 S.W.3d 890, 895 (Tex.Crim.App.2003)

(en banc). “Absolute systemic requirements [that may not be

waived] include jurisdiction of the person [and] the subject

matter, and a penal statute's being in compliance with the

Separations of Powers Section of the state constitution.” Id.

Violation of these non-waivable absolute systemic rights

constitutes fundamental error. McLean v. State, 312 S.W.3d

912, 916 (Tex.App.–Houston [1st Dist.] 2010, no pet.).

*4 Here, we conclude that Guerrero forfeited his separation

of powers argument by failing to raise it in the trial court,

because his challenge does not constitute a denial of an

absolute systemic requirement. Guerrero did not file a motion

for new trial or motion in arrest of judgment challenging the

constitutionality of assessing a cost to support the

comprehensive rehabilitation fund. See Salinas v. State, 426

S.W.3d 318, 325–26 (Tex.App.–Houston [14th Dist.] 2014,

pet. granted) (analyzing constitutional challenge where

appellant raised issue of constitutionality of Local

Government Code section 133.102 in motion for newtrial and

motion in arrest of judgment); Peraza v. State, ––– S.W.3d

––––, Nos. 01–12–00690–CR & 01–12–00691–CR, 2014

WL 7476214, at *1 (Tex.App.–Houston [1st Dist.] Dec. 30,

2014, pet. granted) (analyzing constitutional challenge to

“DNA Record Fee” where appellant filed motions for new

trial and in arrest of judgment). Separation of powers

arguments must be preserved in the trial court. See, e.g.,

Russell v. State, No. 02–11–00478–CR, 2013 WL 626983, at

*2 (Tex.App.–Fort Worth Feb. 21, 2013, pet. ref d) (mem.

op., not designated for publication); Boone v. State, 60

S.W.3d 231, 236 (Tex.App.–Houston [14th Dist.] 2001, pet.

ref d), cert. denied, 537 U.S. 1006 (2002).

An exception arises if the appellant raises a separation of

powers challenge to a penal statute for the first time on

appeal. See Aldrich, 104 S.W.3d at 895. Guerrero, however,

does not challenge a penal statute. Rather, he contends that

Local Government Code section 133.102 violates the

separation of powers clause because it improperly allocates

funds to the comprehensive rehabilitation fund, which

amountsto an unconstitutional tax. See id. (absolute systemic

requirements include penal statute's compliance with

separation of powers clause of Texas Constitution).

Accordingly, we conclude that Guerrero failed to preserve his

separation of powers argument. See Gamble v. State, Nos.

02–13–00573–CR & 02–13–00574–CR, 2015 WL 221108,

at *4 (Tex.App.–Fort Worth Jan. 15, 2015, pet. ref d) (mem.

op., not designated for publication) (appellant's failure to

preserve issue in trial court forfeited argument on appeal that

his form of community supervision violated separation of

powers because he did not contend that a penal code section

violated separation of powers).

In support of his position that he may raise his separation of

powers argument for the first time on appeal, Guerrero relies

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

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

in which the Court of Criminal Appeals held that a defendant

may challenge the sufficiency of the evidence to support the

assessment of court costs for the first time on appeal. The

Court of Criminal Appeals explained that “[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, 423 S.W.3d at 399; see also

Johnson, 423 S.W.3d at 391 (“Appellant need not have

objected at trial to raise a claim challenging the bases of

assessed costs on appeal.”). These cases, however, did not

address the constitutionality of court costs, and, therefore, do

not support Guerrero's contention that he may assert his

constitutional claim for the first time on appeal. Accordingly,

we hold that Guerrero failed to preserve his constitutional

challenge to Local Government Code section 133.102's

allocation of funds to the comprehensive rehabilitation fund.

See Mendez, 138 S.W.3d at 342 (except for complaints

involving systemic requirements and non-waivable rights,

constitutional complaints must be preserved in trial court).

*5 We overrule Guerrero's second issue in appellate cause

number 01–13–00821–CR and sole issue in appellate cause

number 01–13–00822–CR.

Conclusion

We affirm the judgments of the trial court.
All Citations

Not Reported in S.W.3d, 2015 WL 2266247

Footnotes

1 1 Appellate cause number 01–13–00821–CR is the appeal from the conviction for aggravated robbery (trial court number 1172094),

and appellate cause number 01–13–00822–CR is the appeal from the conviction for evading arrest (trial court cause number

1172095). We address all of Guerrero's points of errors in both cases in this opinion.

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