the 19th District Court McLennan County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Neill.
E. NEILL JUSTICE.
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.
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.
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.
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.
Constitutionality of Article 102.011 of the Code of Criminal
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.
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
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.
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.
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 ...