PD 1254-15

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________________________

WILLIAM JOHNSON,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

_______________________________________________

On Petition for Discretionary Review from the 

First Court of Appeals in No, 14–14–00475–CR

affirming the conviction in cause number 1395867,

From the 184th 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

October 26, 2015

PD-1254-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/26/2015 8:57:09 AM

Accepted 10/27/2015 4:21:19 PM

ABEL ACOSTA

CLERK
IDENTITY OF PARTIES AND COUNSEL

Appellant: William Johnson

SPN#02689555

Harris County Jail

701 North San Jacinto

Houston, TX 77002

Trial Prosecutor: Mr. Anthony Robinson

Assistant District Attorney

Harris County, Texas

1201 Franklin, 6th Floor

Houston, Texas 77002

Defense Counsel at Trial: Mr. Walter Miller

1018 Preston, 5th Floor

Houston, Texas 77002

Presiding Judge: Hon. Jan Krocker, Presiding Judge

184th District Court 

Harris County, Texas

1201 Franklin, 17th floor

Houston, Texas 77002

Defense Counsel on Appeal: Jani Maselli Wood

Assistant Public Defender

Harris County, Texas

1201 Franklin, 13th Floor

Houston, Texas 77002

-2-
Table of Contents

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

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

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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.

Johnson until 27 days 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?. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Reasons for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . 7

The error was preserved based upon precedent from this Court.. . . . . . . . . 7

No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . . 8

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

-3-
INDEX OF AUTHORITIES

PAGE

Cases:

Cardenas v. State, 

423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Johnson v. State, 

14-14-00475-CR, 2015 WL 5025653 

(Tex. App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). . . . . . . passim

Johnson v. State, 

423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Landers v. State, 

402 S.W.3d 252 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9

Statutes and Rules:

TEX. HUM. RES. CODE ANN. § 115.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

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

-4-
STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

This is an appeal from a conviction for aggravated robbery - deadly weapon.

(C.R. at 38). Mr. Johnson pleaded guilty and went to the court for punishment with

a presentence report. (C.R. at 24-25). After the report and testimony was presented,

Mr. Johnson was sentenced to eight years confinement in the Texas Department of

Criminal Justice - Institutional Division. (C.R. at 38).

STATEMENT OF THE PROCEDURAL HISTORY

In a published opinion, the Fourteenth Court of Appeals affirmed Mr.

Johnson’s conviction. Johnson v. State, 14-14-00475-CR, 2015 WL 5025653 (Tex.

App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). No motion for rehearing was

filed. After an extension of time, this petition is timely if filed on or before October

26, 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.

Johnson until 27 days 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?

-5-
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).

STATEMENT OF FACTS RELATIVE TO GROUND RAISED

Mr. Johnson was assessed the consolidated court cost which includes

subsection 6 - fundsfor comprehensive rehabilitation. Mr. Johnson challenged the fee

as an unconstitutional tax violating the separation of powers. Johnson, 2015 WL

5025653, at *2 (explaining that this was challenged on appeal but “Appellant did not

challenge the assessment of costs in the trial court through a motion for new trial or

any other vehicle.”).

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.

-6-
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:

The requirement that appellant preserve error in the trial court on

constitutional challenges applies to challenges brought under the Texas

Constitution. See Heidelberg v. State, 144 S.W.3d 535, 537–38

(Tex.Crim.App.2004); Curry, 910 S.W.2d at 496.

Johnson, 2015 WL 5025653, at *3.

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).

-7-
The Court of Appeals held that neither of those cases allowed for a

constitutional challenge on appeal:

Because neither Johnson nor Cardenas provides appellant with an

exception to the requirement that he preserve his facial constitutional

challenge in the trial court, we conclude that appellant failed to preserve

error for appellate review. See Karenev, 281 S.W.3d at 434; Heidelberg,

144 S.W.3d at 537–38; Curry, 910 S.W.2d at 496. And, because appellant

failed to preserve error, his second issue is overruled.

Johnson, 2015 WL 5025653, at *3.

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

-8-
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 bill in these cases was created on June 11, 2014. The judgment was

entered on May 15, 2014. Almost four weeks had passed. This Court has held that

Mr. Johnson was not required to 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. Johnson 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

William Johnson

-9-
CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on October 26, 2015, a

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

the Harris County District Attorney’s Office through texfile.com at the following

address:

Melissa Hervey

Assistant District Attorney

1201 Franklin Street, 6th Floor

Houston, TX 77002

Hervey_Melissa@dao.hctx.net

Lisa McMinn

Lisa.McMinn@SPA.texas.gov

Jani Maselli Wood

_________________________________

JANI J. MASELLI WOOD

-10-
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 1007 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

-11-
Appendix A

Opinion Johnson v. State
2015 WL 5025653

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED

FOR PUBLICATION IN THE PERMANENT LAW

REPORTS. UNTIL RELEASED, IT IS SUBJECT TO

REVISION OR WITHDRAWAL.

Court of Appeals of Texas, 

Houston (14th Dist.).

William Johnson, Appellant

v.

The State of Texas, Appellee

NO. 14–14–00475–CR | Opinion filed August 25,

2015

Synopsis

Background: Defendant was convicted on guilty plea in the

184th District Court Harris County, of aggravated robbery

with deadly weapon. Defendant appealed.

Holdings: The Court of Appeals, Kem Thompson Frost, C.J.,

held that:

[1] trial court did not interfere with plea negotiations;

[2] aggravated robbery with use or exhibition of deadly

weapon was first-degree felony, not state-jail felony; and

[3] oral pronouncement at plea hearing that guilty plea was

not pursuant to plea bargain, and therefore, that defendant had

right to appeal, controlled over written judgment stating that

defendant was convicted pursuant to plea bargain and that he

had no right to appeal.

Affirmed as modified.

West Headnotes (12)

[1] Criminal Law

Representations, promises, or coercion; plea

bargaining

Trial court's questions to defense counsel directed

at whether State had made offer on charge for

robbery and clarification for record that offer had

not been accepted, before accepting defendant's

guilty plea, did not constitute interference with

plea negotiations; plea negotiations had already

ended, and defendant had already rejected offer,

and trial court made no comment suggesting that

defendant should reconsider or that State should

engage in further negotiations. Tex. Crim. Proc.

Code Ann. art. 26.13(a)(2).

Cases that cite this headnote

[2] Criminal Law

Representations, promises, or coercion; plea

bargaining

Plea bargains are a crucial aspect of the Texas

justice system, and it is improper for a trial judge

to participate or become otherwise involved in the

process by which plea bargains are formed.

Cases that cite this headnote

[3] Criminal Law

Representations, promises, or coercion; plea

bargaining

Plea bargaining is the process where a defendant

who is accused of a particular criminal offense,

and his attorney, if he has one, and the prosecutor

enter into an agreement which provides that the

trial on that particular charge not occur or that it

will be disposed of pursuant to the agreement

between the parties, subject to the approval of the

trial judge.

Cases that cite this headnote

[4] Criminal Law

Costs
Defendant failed to preserve for review on direct

appeal claim that statutory comprehensive

rehabilitation fee assessed as part of sentence for

aggravated robbery with deadly weapon violated

separation of powers because fee statute required

courts to collect funds that were unrelated to court

functions and rehabilitation was within province

of executive branch, where he did not raise claim

at trial. Tex. Const. art. 2, § 1; Tex. Loc. Gov't

Code Ann. § 133.102; Tex. R. App. P. 33.1(a).

Cases that cite this headnote

[5] Criminal Law

Constitutional questions

An appellant is required to preserve error in the

trial court on a facial or as-applied challenge to

the constitutionality of the statute, because his

right to a constitutional challenge of the statute is

a right that can be forfeited if it is not raised in the

trial court. Tex. R. App. P. 33.1(a).

Cases that cite this headnote

[6] Criminal Law

Constitutional questions

The requirement that appellant preserve error in

the trial court on constitutional challenges applies

to challenges brought under the Texas

Constitution. Tex. R. App. P. 33.1(a).

Cases that cite this headnote

[7] Robbery

Degrees; armed robbery

Aggravated robbery with use or exhibition of

deadly weapon was first-degree felony, not

state-jail felony. Tex. Penal Code Ann. § 29.03.

Cases that cite this headnote

[8] Criminal Law

Contradiction of, or conflict in, record

Criminal Law

Plea of Guilty or Nolo Contendere

Oral pronouncement at hearing on guilty plea to

aggravated robbery with deadly weapon that plea

was not pursuant to plea bargain, and therefore,

that defendant had right to appeal, controlled over

written judgment of sentence stating that

defendant was convicted pursuant to plea bargain

and that he had no right to appeal.

Cases that cite this headnote

[9] Sentencing and Punishment

Presence of Defendant

Sentencing and Punishment

Necessity of writing

Adefendant's sentence must be pronounced orally

in his presence.

Cases that cite this headnote

[10] Criminal Law

Requisites and Sufficiency of Judgment

Sentencing and Punishment

Necessity of writing

The judgment, including the sentence assessed, is

the written declaration and embodiment of the

oral pronouncement of sentence.

Cases that cite this headnote

[11] Sentencing and Punishment

Oral and written pronouncements

When there is a conflict between the oral

pronouncement of sentence and the sentence in

the written judgment, the oral pronouncement

controls.

Cases that cite this headnote

[12] Criminal Law

Contradiction of, or conflict in, record
If the trial court's oral pronouncement of whether

a defendant has the right to appeal conflicts with

its written judgment, the oral pronouncement

controls.

Cases that cite this headnote

On Appeal from the 184th District Court Harris County,

Texas, Trial Court Cause No. 1395867

Attorneys and Law Firms

Devon Anderson, Melissa Hervey, for The State of Texas.

Jani J. Maselli Wood, for William Johnson.

Panel consists of Chief Justice Frost and Justices Boyce and

McCally.

OPINION

Kem Thompson Frost, Chief Justice

*1 Appellant William Johnson challenges his conviction for

aggravated robbery with a deadly weapon and the trial court's

assessment of court costs against him. Appellant asserts the

trial court violated his right to a neutral judge by questioning

himabout the plea offer he rejected. Appellant also challenges

Texas Local Government Code section 133.102 as violating

the Texas Constitution. And, both the State and appellant

claim the judgment contains errors. We modify the judgment

to correct errors, but we overrule appellant's other issues and

affirm the judgment as modified.

I. Factual and Procedural Background

After being charged with aggravated robbery using or

exhibiting a deadly weapon, appellant pleaded “guilty”

without anyagreed recommendation. Before appellant entered

his plea, the trial court questioned him regarding his

competency and asked if he understood the impact of his

action. In particular, the trial court queried whether appellant

understood the plea bargain offered by the State and the

potential range of punishment the trial court could impose.

The trial court stated it would determine the sentence after

reviewing a pre-sentence investigation report considering

evidence. After articulating an understanding of the

consequences of his plea, appellant pleaded “guilty,” and the

trial court accepted the plea. The trial court later sentenced

appellant to eight years' confinement and assessed court costs.

II. Analysis

A. Alleged Interference in Plea Negotiations

[1]Appellant asserts the trial court violated his right to have

his punishment assessed by an impartial judge because the trial

court became biased through interference in plea negotiations.

According to appellant, the interference caused the trial court

to become an advocate for the plea agreement. Appellant

argues that if the trial court advocates for a plea agreement, the

trial court's advocacy can give the court “a personal stake” in

the agreement. Appellant suggeststhat by interfering, the trial

court became biased and could not be neutral and detached in

assessing punishment. Appellant also asserts a trial court's

interference in plea negotiations is coercive.

[2] [3]We presume, without deciding, appellant's argument is

preserved for appellate review. Plea bargains are a crucial

aspect of the Texas justice system and it is improper for a trial

judge to participate or become otherwise involved in the

process by which plea bargains are formed. See Moore v.

State, 295 S.W.3d 329, 331—32 (Tex.Crim.App.2009); Ex

parte Shuflin, 528 S.W.2d 610, 617 (Tex.Crim.App.1975).

Plea bargaining is

the process where a defendant who is accused

of a particular criminal offense, and his

attorney, if he has one, and the prosecutor

enter into an agreement which provides that

the trial on that particular charge not occur or

that it will be disposed of pursuant to the

agreement between the parties, subject to the

approval of the trial judge.

Perkins v. Court of Appeals for Third Supreme

Judicial Dist. of Tex., 738 S.W.2d 276, 282

(Tex.Crim.App.1987).

*2 The record reveals that before appellant pled

“guilty,” the trial court questioned appellant

regarding plea negotiations:

[The Court]: Did I understand there is no plea

bargain?

[Appellant's counsel]: That's correct, Your Honor.

[The Court]: I do recall there was some discussion

about whether or not the State might make him an

offer on robbery. Did they ever do that?
[Appellant's counsel]: We talked about it, Your

Honor, but, as I explained to the prosecution earlier,

is that based on the facts and the nature and his

involvement, I thought deferred would have been

most appropriate thing to do. And so—

[The Court]: Right. I just want the record to reflect

that he turned that down. Did he turn that down?

[Appellant's counsel]: He did. Yes, Your Honor.

[The Court]: Is that right, they offered you

something on robbery? Did you give him a number

of years on robbery? Did you get that—

[Appellant's counsel]: Two years, Your Honor.

[The Court]: Two years?

[Appellant's counsel]: Did I misrepresent?

[Prosecutor]: No, I believe it was—I believe when

you talked with the chief, the discussion was two

years.

[The Court]: Ok[ay]. On a reduced charge of

robbery. Am I correct in thinking you do not want

that? Is that right? I just want the record to reflect

that. Is that right?

[Appellant]: Yes, ma'am.

[The Court]: Ok[ay]. There is no plea bargain.

Appellant argues that the trial court's specific

questions regarding the length of time the State

offered as a recommended sentence constituted

interference in plea negotiations. The record reveals

that at the time of the trial court's questioning, plea

negotiations already had ended and appellant already

had rejected the plea bargain. The trial court did not

suggest that appellant should reconsider hisrejection

and attempt to engage the State in further plea

negotiations. Rather, the trial court simply clarified

for the record that appellant was aware of the

specifics of the plea bargain offered by the State and

that he had turned it down. See Tex. Code Crim.

Proc. Ann. art. 26.13(a)(2) (West, Westlaw through

2013 3d C.S.) (requiring trial-court inquiry into the

existence of a plea bargain agreement before

accepting a “guilty” plea). The trial court explained

that the purpose of the query was to ensure the

record reflected appellant understood the

consequences of pleading “guilty” without a plea

bargain.

The record shows that the trial court was not

involved in plea negotiations and, therefore, did not

develop any sort of personal stake in the negotiations

that would affect the trial court's impartiality. See

Garcia v. State, 75 S.W.3d 493, 499

(Tex.App.—San Antonio 2002, pet. ref'd) (noting

that lengthy admonishments by the trial court do not

mean that the trial court is involved in plea

negotiations). The trial court did not interfere in plea

negotiations. See Perkins, 738 S.W.2d at 282;

Garcia, 75 S.W.3d at 499. Because the trial court

did not interfere in plea negotiations, appellant's

arguments are without merit. See id. Accordingly,

appellant's first issue is overruled.

B. Comprehensive Rehabilitation Fee

[4]Section 133.102 of the Texas Local Government

Code governs consolidated fees on conviction. See

Tex. Loc. Gov't Code Ann. § 133.102 (West,

Westlaw through 2013 3d C.S.). In hissecond issue,

appellant asserts the court costs assessed under this

statute violate the Texas Constitution. The bill of

costs was issued the same day as the judgment.

Appellant did not challenge the assessment of costs

in the trial court through a motion for new trial or

any other vehicle.

*3 On appeal, appellant asserts section 133.102

violates the Texas Constitution because it authorizes

the trial court to collect, as court costs, money that is

used for comprehensive rehabilitation. Id. §

133.012(e)(6). Appellant argues that using court

costs to fund rehabilitation efforts violates the

separation of powers because it requires the courts to

collect funds that are unrelated to court functions.

See Tex. Const. art. II, § 1 (West, Westlaw through

2013 3d C.S.). Appellant asserts rehabilitation is

within the province of the executive branch.

[5] [6]To prevail on appeal, appellant was required

to preserve error in the trial court on his facial

challenge to the constitutionality of the statute,

because his right to a facial challenge of the statute

is a right that can be forfeited if it is not raised in the

trial court. See Tex. R. App. P. 33.1(a); Karenev v.

State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009).

To the extent appellant's issue can be construed as an

as-applied challenge, appellant was similarly

required to raise the challenge in the trial court. See
Johnson v. State, --- S.W.3d ---- (2015)

Curry v. State, 910 S.W.2d 490, 496

(Tex.Crim.App.1995). The requirement that

appellant preserve error in the trial court on

constitutional challenges applies to challenges

brought under the Texas Constitution. See

Heidelberg v. State, 144 S.W.3d 535, 537–38

(Tex.Crim.App.2004); Curry, 910 S.W.2d at 496.

Appellant relies on the Court of Criminal Appeals's

holdings in Johnson v. State and Cardenas v. State

in asserting he was not required to preserve error in

the trial court regarding his constitutional challenge

to the court costs assessed against him. See Johnson

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

Cardenas v. State, 423 S.W.3d 396

(Tex.Crim.App.2014). InJohnsonand Cardenas, the

Court of Criminal Appeals addressed instances in

which defendants sought review of court costs

assessed against them after the judgment of

conviction was entered on the grounds that the

record did not support any basis for imposing court

costs against the defendants. See Johnson, 423

S.W.3d at 388; Cardenas, 423 S.W.3d at 398.

Noting that the review was similar to a

legal-sufficiency review, and that most defendants

would not have an opportunity to object to baseless

court costs in the trial court, the Court of Criminal

Appeals held in Johnson that Johnson was not

required to object at trial to raise a claim challenging

the bases of assessed costs on appeal. See Johnson,

423 S.W.3d at 390–91. In Cardenas, the Court of

Criminal Appeals rejected Cardenas's argument that

supplementing the clerk's record with a bill of costs

violated his right to due process of law, in part,

because Cardenas was able to challenge the basis of

the costs for the first time on appeal. Cardenas, 423

S.W.3d at 399. In neither of these cases does the

high court hold that a defendant who had an

opportunity to present a challenge to the

constitutionality of a statute imposing court costs in

the trial court may raise his constitutional challenge

for the first time on appeal. Because neither Johnson

nor Cardenas provides appellant with an exception

to the requirement that he preserve his facial

constitutional challenge in the trial court, we

conclude that appellant failed to preserve error for

appellate review. See Karenev, 281 S.W.3d at 434;

Heidelberg, 144 S.W.3d at 537–38; Curry, 910

S.W.2d at 496. And, because appellant failed to

preserve error, his second issue is overruled.

Errors in the Judgment

In histhird issue, appellant asserts that the judgment

contains two errors. The State concedes both errors.

1. Level of Offense

*4 [7]Appellant pled “guilty” to aggravated robbery

with the use or exhibition of a deadly weapon, a

first-degree felony. See Tex. Penal Code Ann. §

29.03 (West, Westlaw through 2013 3d C.S.). The

admonishments appellant signed in conjunction with

his “guilty” plea reflect that the offense is a

first-degree felony. The judgment reflects appellant

was convicted of the offense of aggravated robbery

with a deadly weapon, but it lists the degree of the

offense as a state-jail felony. Appellant requeststhat

we reform the judgment to reflect conviction for a

first-degree felony rather than a state-jail felony. The

State agrees that we should grant this relief.

The trial court erred in rendering judgment against

appellant for a state-jail felony. We therefore modify

the judgment to reflect appellant's conviction for a

first-degree felony. See French v. State, 830 S.W.2d

607, 609 (Tex.Crim.App.1992); Musgrove v. State,

425 S.W.3d 601, 612 (Tex.App.—Houston [14th

Dist.] 2014, pet. ref'd) (modifying judgment to

reflect correct offense level).

2. Right to Appeal

[8]Appellant asserts that the trial court erred in its

written judgment by stating that he had no right to

appeal. The written judgment says appellant was

convicted pursuant to a plea bargain and has no right

to appeal. At the hearing on appellant's guilty plea,

however, the trial court stated that because there was

no plea bargain, appellant had the right to appeal.

The record reflects there was no plea bargain in this

case.

[9] [10] [11] [12]A defendant's sentence must be

pronounced orally in his presence. Taylor v. State,

131 S.W.3d 497, 500 (Tex.Crim.App.2004). The

judgment, including the sentence assessed, is the

written declaration and embodiment of that oral

pronouncement. Id.When there is a conflict between

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17

-17-
Johnson v. State, --- S.W.3d ---- (2015)

the oral pronouncement of sentence and the sentence

in the written judgment, the oral pronouncement

controls. Id. Similarly, if the trial court's oral

pronouncement of whether a defendant has the right

to appeal conflicts with its written judgment, the oral

pronouncement controls. Grice v. State, 162 S.W.3d

641, 644–45 (Tex.App.—Houston [14thDist.] 2005,

pet. ref'd).

The trial court's special finding that appellant does

not have the right to appeal conflicts with the judge's

oral pronouncement that appellant had the right to

appeal. Because the oral pronouncement is

inconsistent with the written judgment, we modify

the written judgment to reflect the oral

pronouncement that appellant has the right to appeal.

See id.

III. Conclusion

Appellant does not prevail on hisfirst issue. The trial

court did not violate appellant's right to a neutral

judge by its actions in connection with the plea

negotiations because the trial court did not interfere

in the negotiations. Nor does appellant prevail on the

constitutional challenge presented in his second

issue. Appellant did not preserve error in the trial

court on his claim that section 133.102 violates the

Texas Constitution. Appellant, however, is entitled

to relief on his third issue because the judgment

contains errors. The judgment incorrectly reflects

appellant was convicted of a state-jail felonyand that

appellant has no right of appeal. We modify the

judgment to reflect appellant's conviction for a

first-degree felony and to reflect appellant's right to

appeal. We affirm the trial court's judgment as

modified.

All Citations

--- S.W.3d ----, 2015 WL 5025653

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18

-18-