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Washington v. State

Court of Appeals of Texas, Tenth District

December 18, 2019

JOE FRANK WASHINGTON, Appellant
v.
THE STATE OF TEXAS, Appellee

          From the 19th District Court McLennan County, Texas Trial Court No. 2015-1908-C1

          Before Chief Justice Gray, Justice Davis, and Justice Neill.

          OPINION

          JOHN E. NEILL JUSTICE.

         In two issues, appellant, Joe Frank Washington, argues that: (1) the Sheriff's Commitment Fee and the Warrant Fee under article 102.011(a)(2) and (a)(6) of the Code of Criminal Procedure are facially unconstitutional, see Tex. Code Crim. Proc. Ann. art. 102.011(a)(2), (a)(6) (West Supp. 2019); and (2) the trial court's judgments erroneously indicate that he pleaded "true" to the first three allegations contained in the State's motion to revoke. We affirm as modified.

         I. Background

         In the instant case, Washington was charged by indictment with two counts of retaliation. Pursuant to a plea agreement with the State, Washington pleaded guilty to the charged offenses. The trial court accepted Washington's guilty plea, found him guilty of the charged offenses, sentenced him to ten years' imprisonment with a $250 fine for each count, suspended the sentences, and placed him on community supervision for ten years.

         Thereafter, the State filed a motion to revoke Washington's community supervision, alleging four violations of his community supervision. The State later amended its motion to revoke to include a fifth violation.

         The trial court conducted a hearing on the State's amended motion to revoke. At this hearing, Washington represented himself with standby counsel, and the trial court entered a plea of "not true" on Washington's behalf as to each of the alleged violations. At the conclusion of the hearing, the trial court found the first three allegations contained in the State's motion to revoke to be "true" and the last two allegations to be "not true." Accordingly, the trial court revoked Washington's community supervision, assessed punishment at ten years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice with a $250 fine for each count, and ordered the sentences to run concurrently. Washington filed a pro se motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). This appeal followed.

         II. Constitutionality of Article 102.011 of the Code of Criminal Procedure

         In his first issue, Washington contends that the Sheriff's Commitment Fee and the Warrant Fee, as outlined in article 102.011(a)(2) and (a)(6) of the Code of Criminal Procedure, are facially unconstitutional because they violate the Separation-of-Powers provision of the Texas Constitution.

         Washington did not object to the imposition of court costs in the trial court. The order to withdraw funds was generated the same day as the judgment on May 3, 2019, but was not clearly incorporated into the judgment. The judgment includes a blank for "court costs," which states "SEE BELOW." The judgment also includes a statement where: "The Court orders the clerk to collect the court costs"-none of which are delineated in the judgment. The separate order to withdraw funds indicates that $55 in court costs should be withdrawn from Washington's inmate account.

         Convicted defendants may object to the assessment of mandatory court costs against them for the first time on appeal when the judgment does not contain an itemization of the imposed court costs. London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); see Bowden v. State, 502 S.W.3d 913, 914 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd). Because article 102.011 fees are mandatory court costs imposed upon conviction for a felony or misdemeanor for services performed in the case by a peace officer, and because the judgment in this case does not contain an itemization of the imposed court costs, we conclude that preservation of this complaint was not required. See Tex. Code Crim. Proc. Ann. art. 102.011(a) (providing that "[a] defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer . . ."); London, 490 S.W.3d at 507; Bowden, 502 S.W.3d at 914. We now analyze the constitutionality of the statute.

         We review the constitutionality of a criminal statute de novo as a question of law. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature was neither unreasonable nor arbitrary in enacting it. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); see also State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). We must uphold the statute if we can apply a reasonable construction that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979). Moreover "[a] reviewing court must make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown." Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (internal citations omitted). The burden of establishing the unconstitutionality of a statute falls on the party seeking to challenge the statute. Rosseau, 396 S.W.3d at 557.

         In the instant case, Washington makes a facial challenge to the constitutionality of article 102.011(a)(2) and (a)(6) of the Code of Criminal Procedure. A facial challenge is an attack on a statute itself, as opposed to a particular application. Peraza, 467 S.W.3d at 514. As such, the challenger must establish that "no set of circumstances exists under which the statute would be valid." Id.; see Rosseau, 396 S.W.3d at 557 (holding that a party asserting a facial challenge "must establish that the statute always operates unconstitutionally in all possible circumstances"). "A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger ...


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