As we have noted before, criminal trials and sentencing are governed by strict rules of evidence and procedures. Objections to admission of impermissible evidence during the trial and to procedures utilized in the sentencing process that results in an illegal sentence must be made to the trial court in both a timely and sufficiently specific manner to make the court aware of the complaint. Rule 33.1 of the Texas Rules of Appellate Procedure provides that objections must be made in this manner to preserve any alleged error for review on direct appeal.


These rules and procedures governing contemporaneous objections were once again strongly reinforced by the Texas Court of Criminal Appeals (“CCA”) in the January 29, 2020 decision in Burg v. State.


License Suspension Highlights Importance of Objections


James Allan Burg was convicted of driving while intoxicated in Montgomery County. He was sentenced to the criminal penalties of one year in jail suspended for 18 months and fined $1500. In addition to the criminal penalties, the court suspended Burg’s driver’s license for one year as a condition of community supervision. Burg’s attorney did not object to this civil penalty of suspension of license.


Defense Counsel Must Object to Errors at Sentencing, Suspension of License


Burg’s appellate counsel, however, did raise the suspension of the driver’s license issue before the Ninth Court of Appeals in direct appeal pleadings. The appeals court on April 11, 2018 succinctly rejected the issue, saying: “Burg did not object at trial to the suspension of his driver’s license. He cannot now complain about the alleged condition for the first time of appeal.” The court added: “If a defendant fails to object to conditions of probation at trial, he affirmatively accepts them and is barred from complaining about them for the first time on appeal.”


Suspension of License Not Punishment, Must Object


In his petition for discretionary review before the CCA, Burg once again raised the suspension of driver’s license issue. That court was equally abrupt in rejecting Burg’s claim, finding:


“A license suspension is not ‘punishment’ in a case, just as court costs aren’t. Therefore, even an unauthorized license suspension cannot be characterized as an ‘illegal sentence.’ Under these circumstances we follow ordinary preservation of error requirements. Because Appellant had the opportunity to object and did not do so, he has not preserved his appellate claim for review.”


To put this issue in clear, unmistakable legal perspective, the CCA explained in some detail why a suspension of driver’s license cannot render a criminal sentence “illegal.” The court stated:


“But what about Texas Penal Code Section 12.01(c), saying a suspension can be ‘included in the sentence’? The things listed in 12.01(c) are by definition ‘civil penalties.’ And civil penalties are not punishment unless they’ve been historically regarded as punishment or they promote the traditional aims of punishment such as retribution and deterrence. License suspensions have not been so regarded.


“In Davison v. State, we held that counsel could not allude to the automatic suspension of the accused’s driver’s license as a consequence of conviction because that consequence was not part of the ’punishment’ affixed to such offense. Suspensions, we agreed, ‘are not intended as punishment but are designed solely for the protection of the public in the use of the highways.’ At that time, the code described punishment as including ‘forfeiture of civil or political rights.’ Because the Texas Supreme Court, in Gillaspie v. Department of Public Safety, had already said that driving is a privilege and not a right, we noted that the forfeiture of a license is the forfeiture of a privilege, rather than forfeiture of a right. As such, it was not considered punishment.


“Nor is it punishment now. The legislature has indicated an intention to create a civil penalty, and this is not the kind of civil penalty that is so punitive in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal punishment. As the United States Supreme Court has noted, ’Remedial sanctions may be of varying types. One which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted.’


License Suspension Not Considered Punishment


“The bottom line is that a license suspension is not considered punishment because it is not incarceration, probation, a fine, or an enhancement, regardless of whether it is included in the so-called sentence. So a complaint about it is not really a complaint about an ‘illegal sentence.’ Since Appellant’s complaint cannot be characterized as a complaint about an illegal sentence, it does not fall under the Mizell jurisprudence excepting ‘illegal sentence’ claims from Rule 33.1.”


We dare not attempt to explain, trial counsel’s decision not to timely and properly object to the suspension of license issue. Perhaps—and more likely than not—counsel realized that the license suspension did not render the sentence “illegal” just as the CCA ruled.


Notwithstanding this probability, the Burg case once explains why timely and proper objections are critical at the trial level. Not only must errors be identified, they must be presented with clear specificity to the trial court in order for the court to understand them. Objections can be an attorney’s best friend in a hotly contested trial, but only if they are exercised in the correct manner.