Moliere v. State

• Decision Date: 11 December 2018
• Docket Number: NO. 14-17-00594-CR,14-17-00594-CR
• Citation: 574 S.W.3d 21
• Parties: Alfred T. MOLIERE, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

574 S.W.3d 21

Alfred T. MOLIERE, Appellant

v.The STATE of Texas, Appellee

NO. 14-17-00594-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 11, 2018

Rehearing En Banc Denied May 16, 2019

Discretionary Review Refused September 18, 2019

J. Brett Busby, Justice Appellant Alfred T. Moliere appeals his sentence for misdemeanor assault involving family violence in violation of section 22.01(a)(1) of the Texas Penal Code. In his first issue, appellant contends Article 42.013 of the Code of Criminal Procedure, which requires the trial court to make an affirmative finding of family violence in the judgment, is unconstitutional under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Appellant argues that a finding under Article 42.013 increases his penalty beyond the prescribed statutory maximum by depriving him of his right to possess a firearm without a finding by the jury. We overrule this issue because appellant did not preserve it and, in any event, appellant has not shown a violation of Apprendi.

In his second and third issues, appellant challenges as facially unconstitutional two court costs: the $25 district attorney fee authorized by article 102.008(a) of the Code of Criminal Procedure, and the $40 clerk’s fee authorized by article 102.005(a) of the Code of Criminal Procedure. Appellant contends the fees violate the separation of powers clause of the Texas Constitution because the statutes authorizing the fees do not direct the fees to be spent for a legitimate criminal justice purpose, thereby turning the courts into tax gatherers. We overrule these issues because the costs assessed represent a recoupment of expenses for the trial of the case. We affirm the trial court’s judgment.

BACKGROUND

The State charged appellant by information with a misdemeanor offense of assault involving a family member. Testimony during the trial revealed that appellant and the complainant were in a relationship and had two children. While in the parking lot of a local restaurant, appellant grabbed the complainant by her hair and punched her in the face multiple times. The jury found appellant guilty of assaulting the complainant, a person with whom he had a dating relationship. After the jury’s guilty verdict, the trial court sentenced appellant to confinement for one year in the Harris County Jail. The trial court also found on the record that:

this was a – at least a dating relationship and perhaps husband and wife relationship.... [I]t is clearly an intimate relationship per the law for affirmative findings of family violence, which means, sir, that you may not possess or transfer firearms or fire ammunition under Federal Law.¹

The trial court included the family violence finding in the judgment. The judgment also assessed several costs against appellant, including a "district attorney fee" of $25.00 and a "district clerk’s fee" of $40.00.

ANALYSIS

Appellant raises three issues on appeal: (1) a facial constitutional challenge that article 42.013 violates Apprendi v. New Jersey ; (2) a facial constitutional challenge to the $25 district attorney fee because he argues the revenue from the fee is directed to the Harris County general fund, allowing the money to be spent for purposes other than criminal justice purposes; and (3) a facial constitutional challenge to the $40 district clerk fee for the same reason. We address each issue in turn.

I. Appellant has not shown that article 42.013 ’s requirement of a court finding of family violence is facially unconstitutional.

A. Appellant did not preserve his facial challenge.

Appellant argues that article 42.013 is unconstitutional on its face and violates both his Fourteenth Amendment right to due process and his Sixth Amendment right to a jury trial. Appellant did not raise this facial constitutional challenge to article 42.013 in the trial court. Failure to raise a facial constitutional challenge to a statute in the trial court waives the right to complain of the statute on appeal. Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) ("A facial challenge to the constitutionality of a statute falls within" the category of rights that can be forfeited if not raised in the trial court); Merrit v. State , 529 S.W.3d 549, 555 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). We have held that an appellant waives an Apprendi complaint by not raising it in the trial court. Massoth v. State , Nos. 14-03-00605-CR, 14-03-00606-CR, No. 2004 WL 1381027, at *2 (Tex. App.—Houston [14th Dist.] June 22, 2004, pet. ref'd) (mem. op.).

Appellant argues the rule in Karenev does not apply because his complaint concerns an illegal sentence and thus may be raised for the first time on appeal. Appellant is correct that a court may always notice and correct an illegal sentence, even if a party did not make a contemporaneous objection in the trial court. Mizell v. State , 119 S.W.3d 804, 806 & n.6 (Tex. Crim. App. 2003) (en banc). We conclude, however, that appellant’s sentence was not illegal and thus he cannot rely on that doctrine to raise his issue on appeal.

An illegal sentence is one that is not authorized by law. Ex parte Parrott , 396 S.W.3d 531, 534 (Tex. Crim. App. 2013) ; Mizell , 119 S.W.3d at 806 ("A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal."). Appellant received a sentence of confinement for one year in the county jail, a sentence within the range allowed for a misdemeanor assault. See Tex. Penal Code § 12.21 (individual found guilty of a Class A misdemeanor, such as assault, shall be punished by a fine not to exceed four thousand dollars, confinement in jail for a term not to exceed one year, or both).

Article 42.013 expressly authorizes and requires a trial court to make a finding of family violence and enter it in the judgment of the case. Butler v. State , 189 S.W.3d 299, 302 (Tex. Crim. App. 2006). Appellant does not challenge the merits of the trial court’s finding of family violence; instead, appellant argues the law allowing the trial court to make the finding is unconstitutional. But, "[s]tatutes are presumed to be constitutional until it is determined otherwise." Karenev , 281 S.W.3d at 434 ; see also Ex parte Beck , 541 S.W.3d 846, 854 (Tex. Crim. App. 2017). To establish that his sentence is illegal, appellant must first establish that the statute is facially unconstitutional—a challenge he has not preserved. Karenev , 281 S.W.3d at 434 ; see Massoth , 2004 WL 1381027, at *2 ; cf. Ex parte Beck , 541 S.W.3d at 855 (noting exception to preservation rule exists only if statute has already been declared unconstitutional; otherwise, facial challenge must be preserved in trial court).

B. An article 42.013 finding does not unconstitutionally increase appellant’s punishment.

Assuming appellant can raise his argument for the first time on appeal, we conclude appellant has not met his burden. Whether a criminal statute is constitutional is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). A facial challenge is an attack on the statute itself as opposed to a particular application. Salinas v. State , 523 S.W.3d 103, 106 (Tex. Crim. App. 2017). As stated above, we presume the statute is valid, and we uphold the statute if we can apply a reasonable construction rendering the statute constitutional. Ely v. State , 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979) ; Kfouri v. State , 312 S.W.3d 89, 92 (Tex. App.—Houston [14th Dist.] 2010, no pet.). "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.), cert. denied , 506 U.S. 999, 113 S.Ct. 600, 121 L.Ed.2d 537 (1992) ; see also United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Except when First Amendment freedoms are at issue, a facial challenge requires the appellant to challenge the statute in all its applications. Salinas , 523 S.W.3d at 106.

Under Apprendi v. New Jersey , any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt to avoid violating a defendant’s rights to due process and trial by jury. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; see Butler , 189 S.W.3d at 302. Apprendi is implicated only if a finding increases an appellant’s punishment beyond the prescribed statutory maximum.² Butler , 189 S.W.3d at 302. Appellant points to the loss of his right to possess weapons for a stated length of time as the enhanced punishment resulting from a family-violence finding under article 42.013. See Tex. Penal Code § 46.04 (prohibiting person convicted of family-violence assault from possessing a firearm before fifth anniversary of later of date of person’s release from confinement or release from community supervision); see also 18 U.S.C. § 922(g)(9) (prohibiting person convicted of misdemeanor domestic violence from shipping or transporting, possessing in or affecting interstate or foreign commerce a firearm or ammunition).

The loss of the right to possess firearms for a stated length of time, however, is not part of the punishment for appellant’s crime. In a different context, the Court of Criminal Appeals has described a restriction on weapons possession as a direct non-punitive consequence of certain crimes. Mitschke v. State , 129 S.W.3d 130, 135 (Tex. Crim. App. 2004) (noting "there are a number of direct consequences of a plea of guilty, such as the loss for a period of years of the right to vote and the right to possess firearms ... that do not necessarily render an otherwise voluntary plea involuntary by the failure of the trial court to admonish a defendant of each of those direct, non-punitive...