London v. State , 2016 Tex. Crim. App. LEXIS 82 ( 2016 )


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  •           IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-0480-15
    JOSHUA LONDON, Appellant
    v.
    THE STATE OF TEXAS
    ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE FIRST COURT OF APPEALS
    HARRIS COUNTY
    N EWELL, J., delivered the opinion of the unanimous Court.
    Rather than challenge the constitutionality of the trial court’s imposition of
    court costs through a hearing pursuant to Article 103.008 or a separate civil lawsuit,
    Appellant sought to raise, on direct appeal, an as-applied challenge to two
    provisions in Article 102.011 that impose mandatory court costs upon conviction.
    The court of appeals, relying upon our decision in Curry v. State, held that Appellant
    failed to preserve error on this claim. We granted review to determine whether
    Appellant could raise his as-applied challenge for the first time on appeal, and
    London – 2
    whether a formal bill of exceptions was necessary to provide a sufficient record for
    the court of appeals to properly evaluate the claim on direct appeal.
    Without considering the merits of the underlying claim, we hold that
    Appellant was not required to raise his as-applied challenge in the trial court
    because his first opportunity to do so was on direct appeal. We also hold that
    Appellant’s as-applied challenge can be evaluated upon the record presented.
    Consequently, we reverse and remand for the court of appeals to consider the merits
    of Appellant’s as-applied challenge.
    Background
    The facts in this case are fairly discrete and undisputed. Two days after
    London’s arrest for possession of a controlled substance, the trial court found him
    indigent and appointed counsel to represent him.                          London was convicted of
    possession of cocaine after pleading guilty without an agreed recommendation as
    to punishment. On May 3, 2013, the trial court entered a judgment sentencing
    Appellant to 25 years in prison. The trial court included in the judgment an order
    to pay $329 in court costs. The judgment provided only the $329 amount and no
    break down of how those costs were calculated.1
    Appellant filed a pro se notice of appeal twelve days after his conviction.
    1
    There is also no indication on the judgment that court costs are to be imposed pursuant to
    statutory authority .
    London – 3
    Twelve days after that, the district clerk filed the statutorily required bill of costs,
    which included a $35 fee for summoning witness/mileage pursuant to Articles
    102.011(a)(3) and 102.011(b) of the Texas Code of Criminal Procedure.2 Due to an
    error in the certification of London’s right to appeal, the court of appeals abated the
    appeal to allow the trial court an opportunity to correct the certification. At the
    hearing on the abatement, the trial court appointed appellate counsel and re-
    certified Appellant’s right to appeal.                    Appellant did not raise a constitutional
    challenge to the imposition of court costs in the trial court.
    After the appointment of counsel on appeal, Appellant challenged the
    statutory witness fee of $35 as it applied to him.3 Appellant argued that charging a
    witness fee after trial violated his Sixth Amendment right of confrontation and
    compulsory process. Thus, according to Appellant, Article 102.011 of the Code of
    Criminal Procedure, which requires reimbursement for both summoning witnesses
    and paying for the expenses in serving subpoenas, is unconstitutional as applied to
    2
    Article 102.011(a)(3) provides that a “defendant convicted of a felony or a misdemeanor shall
    pay…$5 for summoning a witness.” T EX . C O D E C RIM . P RO C . A N N .. art. 102.011(a)(3) (W est 2010). Article
    102.011(b) further provides that a defendant is also required to pay “29 cents per mile for mileage
    required of an officer to perform a service listed in this subsection and to return from performing that
    service,” and “all necessary and reasonable expenses for meals and lodging incurred by the officer in the
    performance of services under this subsection.” T EX . C O D E C RIM . P RO C . A N N . art. 102.011(b) (W est 2010).
    There was no indication in the bill of costs how much of the $35 “Summoning W itness/M ileage” fee was
    for summoning witnesses and how much was for mileage and expenses.
    3
    Appellant has raised only an as-applied challenge to the constitutionality of the statute imposing
    the witness fee. Appellant does not appear to argue that the imposed fee is unconstitutional in every
    application.
    London – 4
    him. The State responded that Appellant failed to object to the imposition of this
    court cost at sentencing, and therefore, he failed to preserve his as-applied challenge.
    The court of appeals agreed with the State and did not address the merits of
    Appellant’s claims. Relying on this Court’s decision Curry v. State, the court of
    appeals held that “[a] defendant may not raise for the first time on appeal an
    as-applied challenge to constitutionality of a statute.” London v. State, No. 01-13-
    00441-CR, 
    2015 WL 1778583
    , at *4 (Tex. App.–Houston [1st Dist.] Apr. 16, 2015) (not
    designated for publication) (citing Curry v. State, 
    910 S.W.2d 490
    , 496 (Tex. Crim.
    App. 1995)). We granted Appellant’s petition for discretionary review to determine
    whether the court of appeals ought to have addressed Appellant’s as-applied
    challenge to the statutorily applied fee on the merits.
    Preservation of Error
    Generally, a party must complain in the trial court in order to preserve that
    complaint for appellate review. T EX. R. A PP. P. 33.1(a)(1). A party satisfies the
    requirement of a timely trial-level complaint “if the party makes the complaint as
    soon as the grounds for it become apparent[.]” Gillenwaters v. State, 
    205 S.W.3d 534
    ,
    537 (Tex. Crim. App. 2006). This means “as soon as the [objecting party] knows or
    should know that an error has occurred.” Hollins v. State, 
    805 S.W.2d 475
    , 476 (Tex.
    Crim. App. 1991). In Gillenwaters, we summarized the policies supporting the
    London – 5
    timeliness requirement.
    The requirement that complaints be raised in the trial court (1) ensures
    that the trial court will have an opportunity to prevent or correct errors,
    thereby eliminating the need for a costly and time-consuming appeal
    and retrial; (2) guarantees that opposing counsel will have a fair
    opportunity to respond to complaints; and (3) promotes the orderly
    and effective presentation of the case to the trier of 
    fact. 205 S.W.3d at 537
    . This rule generally applies to all complaints except those that
    involve rules that are “waivable only” or “systematic” (or “absolute”) requirements.
    Mendez v. State, 
    138 S.W.3d 334
    , 342 (Tex. Crim. App. 2004).
    However, we have consistently held in the context of court-cost challenges
    that an appellant may not be faulted for failing to object when he or she was simply
    not given the opportunity to do so. Johnson v. State, 
    423 S.W.3d 385
    , 390-91 (Tex.
    Crim. App. 2014); Landers v. State, 
    402 S.W.3d 252
    , 255 (Tex. Crim. App. 2013); Wiley
    v. State, 
    410 S.W.3d 313
    , 321 (Tex. Crim. App. 2013). As we explained in Johnson, an
    appellant may generally challenge the imposition of even mandatory court costs for
    the first time on direct appeal when those costs are not imposed in open court and
    the judgment does not contain an itemization of the imposed court costs. 
    Johnson, 423 S.W.3d at 390-91
    . We noted in Riles v. State that procedural default is premised
    on both an appellant’s knowledge of and failure to challenge an issue. 
    452 S.W.3d 333
    , 337 (Tex. Crim. App. 2015). And enforcing a procedural-default rule against a
    defendant who had no opportunity to raise an objection in the trial court does not
    London – 6
    further any of the policies delineated in Gillenwaters. If this case were simply about
    whether Appellant was required to object to the imposition of court costs when the
    trial court pronounced sentence, it would be easily decided in Appellant’s favor.
    Sufficient Record on Appeal
    But the State also argues that Appellant failed to preserve error on his as-
    applied challenge to Article 102.011 because his claim of error requires the
    development of additional facts that are not in the record, unlike the purely legal
    claims raised in Johnson and Landers.4 We have held that, to prevail upon an as-
    applied challenge to the constitutionality of a statute, it is incumbent upon the
    appellant to show that the statute operates unconstitutionally as applied to him in
    his situation. See Santikos v. State, 
    836 S.W.2d 631
    , 633 (Tex. Crim. App. 1992) (op.
    on reh’g) (citing Parent v. State, 
    621 S.W.2d 796
    , 797 (Tex. Crim. App. 1981)). Because
    such inquiries can often require factual development, we have explained that an as-
    applied challenge should not generally be raised prior to trial. State ex rel. Lykos v.
    Fine, 
    330 S.W.3d 904
    , 910 (Tex. Crim. App. 2011) (citing 
    Gillenwaters, 205 S.W.3d at 536
    n. 4); see also Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch.
    4
    In Johnson, the defendant raised a challenge to the sufficiency of the evidence
    supporting the imposed costs. 
    423 S.W.3d 385
    . In Landers, the defendant challenged the trial
    court’s sua sponte imposition of attorneys fees for the prosecutor pro 
    tem. 402 S.W.3d at 255
    .
    The State argues that both of these were purely legal claims and therefore, this Court’s holdings
    in those cases regarding preservation are limited to situations in which the defendant raises a
    purely legal challenge to the imposition of court costs.
    London – 7
    Dist., 
    826 S.W.2d 489
    , 551 (Tex. 1992) (noting that the determination of whether a
    statute has been unconstitutionally applied requires a fully developed factual
    record). This “preservation” theory has more to do with an appellate court’s ability
    to resolve a claim rather than whether that claim was properly brought to the trial
    court’s attention.
    Generally, the appealing party carries the burden to ensure that the record on
    appeal is sufficient to resolve the issues presented. See e.g. Word v. State, 
    206 S.W.3d 646
    , 651-52 (Tex. Crim. App. 2006). The failure to provide a sufficient appellate
    record precludes appellate review of a claim. See e.g. Guajardo v. State, 
    109 S.W.3d 456
    , 462 (Tex. Crim. App. 2003). Ordinarily, a party is required to file a motion for
    new trial to develop facts outside the record in order to avoid this problem. T EX. R.
    A PP. P. 21.2. But we held in Landers v. State that a motion for new trial is not
    required to preserve error for a purely legal challenge to the imposition of 
    costs. 402 S.W.3d at 255
    . And, a motion for new trial is a vehicle for setting aside a finding or
    verdict of guilt or the trial court’s assessment of punishment. T EX. R. A PP. P. 21.1.
    As we have made clear, “court costs are not part of the guilt or sentence of a criminal
    defendant.” 
    Johnson, 423 S.W.3d at 390
    . As such, a motion for new trial is ill suited
    for bringing a challenge to the imposition of court costs.5 It makes no sense to
    5
    The legislature appears to have already provided a tailor-made vehicle for a challenge the
    assessment of court costs after the final disposition of a case. 
    Johnson, 423 S.W.3d at 395
    . Under Article
    103.008, a defendant can file a motion to correct any error in the imposition of court costs up to a year
    London – 8
    require a defendant to file a motion for new trial solely to challenge the imposition
    of court costs because the defendant would not be entitled to a new trial even if he
    prevailed on the legal claim contained in the motion.
    However, when error has been discovered after trial, a formal bill of exception
    can provide an appropriate vehicle to develop facts to support a challenge to the
    imposition of court costs if additional development is necessary. 
    Landers, 402 S.W.3d at 256
    (Tex. Crim. App. 2013) (Keller, P.J. concurring) (citing Warren v. State, 
    693 S.W.2d 414
    , 416 (Tex. Crim. App. 1985)). Rule 33.2 of the Rules of Appellate
    Procedure requires a party to file a formal bill of exception to complain on appeal
    about a matter that would not otherwise appear in the record. T EX. R. A PP. P. 33.2.
    This provision provides a party with a sixty-day window (or a ninety-day window
    if a motion for new trial has been filed) after the pronouncement or suspension of
    sentence in open court to file a formal bill. T EX. R. A PP. P. 33.2(e)(2). And the party
    can file a motion to extend the time limit an additional 15 days. T EX. R. A PP. P.
    33.2(e)(3). If the parties disagree on the contents of the bill, the trial court may hold
    a hearing. T EX. R. A PP. P. 33.2(c). Unlike a motion for new trial, this provision is not
    after the final disposition of his or her case. T EX . C O D E C RIM . P RO C . A N N ., art. 103.008 (W est 2010).
    However, this provision is not the only method by which a defendant can bring a challenge to the
    imposition of court costs. See e.g. Rylander v. Caldwell, 23 S.W .3d 132, 137 (Tex. App.–Austin 2000) (orig.
    proceeding) (holding that Article 103.008 does not foreclose the possibility of a civil lawsuit to declare a
    statute imposing a court cost unconstitutional).
    London – 9
    tied to a specific type of relief, and it does not result in a new appellate timetable.
    
    Landers, 402 S.W.3d at 255
    (noting that requiring a motion for new trial to develop
    the record in a challenge to the imposition of court costs would allow a judge to “de
    facto alter the statutory time frames for motions for new trial”). If a party chooses
    to challenge the imposition of court costs through a direct appeal rather than
    through an Article 103.008 hearing or a civil lawsuit, that party risks presenting an
    insufficient record on appeal and leaving an appellate court unable to properly
    evaluate that claim. A formal bill of exception is a proper vehicle whereby a party
    can develop the necessary facts to carry his or her burden to present a sufficient
    record on appeal on a claim regarding the imposition of court costs post-trial.6
    No Further Factual Development is Required
    However, we disagree with the State that a bill of exceptions was required in
    this case to provide the court of appeals with a sufficient record to evaluate
    Appellant’s claim of error. The State cites to a number of cases for its argument, all
    of which are based on the premise that as-applied challenges may not generally be
    raised pre-trial because an as-applied challenge “depends on the facts developed at
    6
    The First Court of Appeals has observed that a bill of exception is primarily used in cases
    involving the improper exclusion of evidence, evidence, because it was not admitted, would not
    otherwise be part of the appellate record. Sturdivant v. State, 445 S.W .3d 435, 440 (Tex. App.–Houston [1st
    Dist.] 2014, pet. ref’d). However, we do not understand the court of appeals to say that a bill of exception
    can never be used to present a sufficient record on appeal regarding a constitutional challenge to the
    imposition of court costs. M oreover, Rule 33.2 itself is not limited to such claims.
    London – 10
    trial.” See State v. Rosseau, 
    398 S.W.3d 769
    , 774 (Tex. App.—San Antonio 2011), aff’d.,
    
    396 S.W.3d 550
    (Tex. Crim. App. 2013). Here, the relevant facts are already present
    in the record, and there is no need for further development. The State claims that
    further inquiry must be made into whether or not Appellant is unable to bear the
    costs associated with his defense. This argument is unpersuasive for two reasons.
    First, Appellant was declared indigent prior to his plea and he is “presumed to
    remain indigent for the remainder of the proceedings in the case unless a material
    change in the defendant's financial circumstances occurs.” T EX. C RIM. P ROC. C ODE
    A NN. art. 26.04 (West 2010). At no point has the State asserted that a material change
    has occurred so as to warrant further inquiry into Appellant’s indigent status.
    Second, the State does not explain how additional facts surrounding
    Appellant’s indigency–beyond those already in the record–would be necessary to
    resolve his as-applied challenge. Some courts of appeals seem to have held that
    there would never be a need to develop facts regarding indigency because “[a]
    defendant's ability to pay is not relevant with respect to legislatively mandated court
    costs.” See Martin v. State, 
    405 S.W.3d 944
    , 947 (Tex. App.-Texarkana 2013, no pet.);
    see also Owen v. State, 
    352 S.W.3d 542
    , 546 (Tex.App.-Amarillo 2011, no pet.); Williams
    v. State, 
    332 S.W.3d 694
    , 700 (Tex.App.-Amarillo 2011, pet. denied). But we need not
    go that far in this case. The court of appeals can decide if and how Appellant’s
    London – 11
    indigent status is relevant to the merits of Appellant’s challenge to the imposition
    of court costs when it reaches the merits of Appellant’s claim. For the purposes of
    error-preservation, the question before us is whether the record supports
    Appellant’s claim that he is indigent, and, absent a material change in Appellant’s
    financial circumstances, the record establishes the fact and degree of Appellant’s
    indigency. We see no reason to require further factual development on Appellant’s
    indigency.
    Furthermore, whether the witness/mileage fee pertains to the defense
    subpoenas or the State’s subpoenas is of no consequence. Appellant has made clear
    that his challenge is to the fees imposed upon him by Articles 102.011(a)(3) and
    102.011(b) because they infringe on his right to present a defense as an indigent
    defendant. See Ex parte Briggs, 
    187 S.W.3d 458
    , 468 n. 26 (Tex. Crim. App. 2005)
    (quoting Ake v. Oklahoma, 
    470 U.S. 68
    , 77 (1985)) (“while the State need not ‘purchase
    for the indigent defendant all the assistance that his wealthier counterparts might
    buy,’ it must provide him ‘the basic tools’ to present his defense within our
    adversarial system”). Article 102.011 does not condition the imposition of the
    witness/mileage fee upon which party summoned the witnesses. See Ramirez v.
    State, 
    410 S.W.3d 359
    , 365 (Tex. App.–Houston [1st Dist.] 2013, pet. ref’d.) (holding
    that the intent of the statute is to reimburse the costs of summoning witnesses borne
    London – 12
    by the peace officer). Consequently, facts related to who summoned a particular
    witness are unnecessary for the court of appeals to determine whether the post-
    conviction imposition of a witness/mileage fee infringed upon Appellant’s right to
    present his defense. On this record, it is clear that Article 102.011 has been applied
    to Appellant; no further factual development was necessary in order for the court
    of appeals to be able to resolve Appellant’s claim.
    Conclusion
    The court of appeals could have addressed Appellant’s as-applied challenge
    to the statutorily imposed witness/mileage fee. Because the record is sufficient to
    consider Appellant’s constitutional claim, we remand this case to the court of
    appeals for a consideration of the merits of Appellant’s as-applied challenge.
    Delivered:   May 18, 2016
    Publish
    

Document Info

Docket Number: NO. PD-0480-15

Citation Numbers: 490 S.W.3d 503, 2016 Tex. Crim. App. LEXIS 82, 2016 WL 2941060

Judges: Newell

Filed Date: 5/18/2016

Precedential Status: Precedential

Modified Date: 11/14/2024