Opinion filed July 19, 2018




                                       In The


        Eleventh Court of Appeals
                                     __________

                  Nos. 11-16-00217-CR & 11-16-00218-CR
                                     __________

                        SEAN RYAN BREE, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the 220th District Court
                            Comanche County, Texas
                 Trial Court Cause Nos. CR-03933 and CR-03934


                      MEMORANDUM OPINION
       After a bench trial, the trial court convicted Sean Ryan Bree of escape and
tampering with or fabricating physical evidence.         The trial court assessed his
punishment at confinement for twenty-five years in the Institutional Division of the
Texas Department of Criminal Justice for each offense and ordered that the
sentences run concurrently. The trial court also ordered Appellant to pay court costs
in the amount of $278 for each conviction. In five issues on appeal, Appellant
contends that (1) the trial court erred in admitting a hearsay statement in violation of
Appellant’s Sixth Amendment right to confrontation, (2) the trial court erred in
assessing court costs because Appellant is indigent, (3) the statutes authorizing court
costs are unconstitutional as applied to Appellant, (4) the trial court erred in
assessing court costs against Appellant for EMS services, and (5) the trial court erred
in assessing court costs twice. We modify and affirm.
                                        Background Facts
         On February 8, 2015, Department of Public Safety Trooper Mitchell Best
conducted a traffic stop of a vehicle that was speeding on Highway 36 in Comanche
County. The driver of the vehicle was Tacorya Robinson. Appellant was her
passenger.
         Robinson exited her vehicle, and Trooper Best had her sit in his patrol car so
that he could interview her. During the interview, Robinson gave Trooper Best
consent to search the vehicle. Trooper Best approached Appellant, asked him who
he was, and asked him to step out of the vehicle. Trooper Best then searched the
vehicle and found a “plastic baggy” inside of a “cigarette pack,” which contained
what appeared to be methamphetamine.
         Trooper Best placed the items in the front seat of the vehicle, placed Appellant
and Robinson in handcuffs, and gave them both Miranda warnings.1 He then placed
Robinson in the front seat of the patrol car. Appellant remained in the ditch on his
knees.
         At some point, Trooper Best turned his back on Appellant to retrieve gloves
from his patrol car. When the trooper did so, Appellant “jumped in the [vehicle],
grabbed the evidence[,] and took off running.” Trooper Best apprehended Appellant
when Appellant attempted to run through a field injected with liquid cow manure
and fell.
         Trooper Best brought Appellant back to the vehicle, where he noticed that the
cigarette pack containing the alleged methamphetamine was missing. Trooper Best

         1
          Miranda v. Arizona, 384 U.S. 436 (1966).
                                                     2
and other DPS troopers conducted a search of the area, but they did not recover the
evidence.
                                       Analysis
      In his first issue, Appellant contends that the trial court abused its discretion
in admitting Robinson’s statement on a video recording consenting to the search of
the vehicle because it violated his Sixth Amendment right to confrontation. In
response, the State contends that Appellant failed to preserve this issue because his
objection at trial was untimely. In order to preserve a complaint for appellate review,
a party must present the trial court with a timely request, objection, or motion stating
the specific grounds for the desired ruling, if those grounds are not apparent from
the context, and must obtain a ruling. TEX. R. APP. P. 33.1(a); Moore v. State, 371
S.W.3d 221, 225 (Tex. Crim. App. 2012); Ford v. State, 305 S.W.3d 530, 533 (Tex.
Crim. App. 2009). Preservation is a “systemic requirement” on appeal. Ford, 305
S.W.3d at 532.
      Trooper Best testified that he interviewed Robinson in his patrol car and that,
in addition to discussing a number of topics with Trooper Best, she consented to the
search of the vehicle. Trooper Best then went on to testify regarding the search of
the vehicle and the items he found. At this point, Appellant objected, stating that
“the search based on hearsay is not any good.” The trial court sustained Appellant’s
hearsay objection. Later, the State offered a video recording of the traffic stop.
Appellant objected to the recording on the grounds that it contained hearsay
statements from Robinson and, for the first time, asserted that those statements
violated his Sixth Amendment right to confrontation. The trial court overruled all
of Appellant’s objections to Robinson’s statement on the recording consenting to the
search of the vehicle, but sustained the hearsay objections to the remainder of
Robinson’s statements.


                                           3
      The State contends that Appellant failed to timely preserve error because he
did not object on Sixth Amendment grounds until well after Trooper Best testified
regarding Robinson’s statement giving consent to search the vehicle. We disagree.
The complaint that Appellant is asserting on appeal is the ruling on his objection
under the Confrontation Clause to the admission of Robinson’s statement.
Appellant did not object under the Confrontation Clause to Trooper Best’s
testimony. However, there was no violation of the Confrontation Clause with
respect to Trooper Best’s testimony about what Robinson told him because
Trooper Best was the “witness against” Appellant for the statements and Appellant
was able to confront and cross-examine him. See Langham v. State, 305 S.W.3d
568, 576–77 (Tex. Crim. App. 2010) (citing Tennessee v. Street, 471 U.S. 409
(1985)). Therefore, Appellant’s objection to Robinson’s statement on the recording
was timely.
      Appellant contends that Robinson’s statement on the recording consenting to
the search of the vehicle was a testimonial statement that was admitted in violation
of his Sixth Amendment right to confrontation. The Sixth Amendment to the United
States Constitution provides, in relevant part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. CONST. amend. VI. The Confrontation Clause bars the admission of out-of-
court testimonial hearsay statements of a witness unless (1) the witness is
unavailable to testify and (2) the defendant had a prior opportunity to cross-examine
the witness. Crawford v. Washington, 541 U.S. 36, 53–54 (2004); Render v. State,
347 S.W.3d 905, 917 (Tex. App.—Eastland 2011, pet. ref’d). “Post-Crawford, the
threshold question in any Confrontation Clause analysis is whether the statements at
issue are testimonial or nontestimonial in nature.” Render, 347 S.W.3d at 917.
      Generally speaking, a hearsay statement is testimonial when the surrounding
circumstances objectively indicate that the primary reason the statement was made
                                           4
was to establish or prove past events potentially relevant to later criminal
prosecution. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)
(citing Davis v. Washington, 547 U.S. 813, 822–23 (2006)). The Supreme Court has
not provided a comprehensive definition to be used when determining whether
statements are testimonial. Id.; Wells v. State, 241 S.W.3d 172, 175 (Tex. App.—
Eastland 2007 pet. ref’d). However, it has identified three kinds of statements that
could be regarded as testimonial: (1) ex parte in-court testimony or its functional
equivalent that declarants would reasonably expect to be used prosecutorially;
(2) statements contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; and (3) statements that were made
under circumstances that would lead an objective witness to reasonably believe that
the statements would be available for use at a later trial. Langham, 305 S.W.3d at
576. We review a Confrontation Clause ruling de novo. See De La Paz, 273 S.W.3d
at 680.
          We begin by noting that Robinson’s statement giving consent to Trooper Best
was in response to a police inquiry. The evidence at issue in Crawford involved the
police questioning a witness to obtain evidence for use in a later criminal proceeding.
Crawford, 541 U.S. at 53. In the cases decided after Crawford, the Supreme Court
has made clear that not all statements made in response to police questioning
constitute testimonial evidence even when offered for the truth of the matter
asserted. What matters is whether “the primary purpose of the interrogation [was]
to establish or prove past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 547 U.S. 813, 822 (2006); see Langham, 305 S.W.3d at 577
(quoting Davis, 547 U.S. at 822) (Statements in response to an inquiry from a police
officer are evaluated to determine if “the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”).
Conversely, when “the primary purpose of the interrogation is to enable police
                                           5
assistance to meet an ongoing emergency,” the statements will not be testimonial.
Davis, 547 U.S. at 822; Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App.
2008).
      The primary purpose for which a statement was either elicited or made is
assessed objectively. Michigan v. Bryant, 562 U.S. 344, 359–60 (2011); Davis, 547
U.S. at 822.    In Bryant, the Supreme Court noted “that there may be other
circumstances, aside from ongoing emergencies, when a statement is not procured
with a primary purpose of creating an out-of-court substitute for trial testimony.”
Bryant, 562 U.S. at 358. The Court also noted that “the informality of the situation
and the interrogation” is another factor to be considered. Id. at 377. A “formal
station-house interrogation,” like the questioning in Crawford, is more likely to
provoke testimonial statements, while less formal questioning is less likely to reflect
a primary purpose aimed at obtaining testimonial evidence against the accused. Id.
at 366, 377.
      In Langham, the declarant was a confidential informant. Id. at 571–72. A
detective testified that the confidential informant told him that the defendant lived
in a house that was being used to distribute drugs. Id. at 572. Based on this
information, the detective obtained a search warrant. Id. On appeal, the State argued
that the statement was nontestimonial because the “primary purpose” of the
statement was to advance the investigation by obtaining a search warrant, rather than
to establish a fact for the purpose of a prosecution. Id. at 579. The Court of Criminal
Appeals disagreed, stating that, when the detective spoke to the confidential
informant, “potentially securing a conviction and punishment for those involved was
his ‘first-in-importance’ objective.” Id. at 580.
      Appellant relies on Lee v. State for his contention that Robinson’s consent
statement was testimonial. See Lee v. State, 143 S.W.3d 565 (Tex. App.—Dallas
2004, pet. ref’d). In Lee, the defendant was the passenger in a car that was pulled
                                           6
over for speeding. Id. at 567. The police officer who conducted the traffic stop
searched the car and found the defendant’s duffle bag containing a large amount of
money. Id. The officer testified that the driver of the car told him that the defendant
received the money “from selling ecstasy.” Id. at 568. The Dallas Court of Appeals
held that this statement was testimonial and that its admission violated the
defendant’s Sixth Amendment right to confrontation. Id. at 570–71.
      This case is distinguishable from Langham and Lee. In Langham, the primary
purpose behind the confidential informant’s statement was to establish that the
defendant lived in a house from which drugs were being distributed. Langham, 305
S.W.3d at 580. Similarly, in Lee, the primary purpose behind the driver’s statement
was to establish the fact that the defendant obtained the money through the sale of
drugs. Lee, 143 S.W.3d at 570–71. Here, the primary purpose behind Robinson’s
statement was to give consent to the search of the vehicle. Robinson’s statement did
not relay any information to Trooper Best that established any past events—she
merely gave her consent to a search of the vehicle. Furthermore, the statement
occurred in an informal setting, prior to the discovery of any contraband. Therefore,
we conclude that Robinson’s statement giving consent to the search of the vehicle
was nontestimonial. We overrule Appellant’s first issue.
      In Appellant’s second issue, he contends that, under Campbell v. Wilder, it
was an abuse of discretion for the trial court to impose court costs in spite of
Appellant’s indigent status. See Campbell v. Wilder, 487 S.W.3d 146, 152 (Tex.
2016). He argues as follows:
              [Appellant] is indigent. The Supreme Court of Texas has
      determined that an indigent party to a civil proceeding may not be
      required to pay court costs. The statutes governing court costs for civil
      and criminal proceedings do not vary appreciably with regard to their
      substantive provisions. Therefore, because [Appellant] is indigent, the
      trial court erred by requiring him to pay any court costs.


                                          7
      Appellant contends that, because the statutes governing court costs in civil
proceedings and in criminal proceedings are substantially the same, the holding in
Campbell should be extended to criminal proceedings. Appellant directs us to
Chapters 101 and 102 of the Government Code. Compare TEX. GOV’T CODE ANN.
§ 101.061 (West 2013) (“The clerk of a district court shall collect fees and costs
under the Civil Practice and Remedies Code . . . .” (emphasis added)) with GOV’T
§ 102.021 (West Supp. 2017) (“A person convicted of an offense shall pay the
following under the Code of Criminal Procedure . . . .” (emphasis added)) and GOV’T
§ 102.041 (“The clerk of the district court shall collect fees and costs under the Code
of Criminal Procedure . . . .” (emphasis added)). Appellant further notes that “none
of these statutes, whether civil or criminal, make any exceptions for indigent
parties.”
      In response, the State contends that Appellant failed to preserve error for this
complaint because he is raising this issue for the first time on appeal. Relying on
London v. State, Appellant contends that he may challenge court costs for the first
time on appeal because the trial court did not impose specific court costs in open
court. See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
      An appellant may complain about court costs for the first time on appeal
“when those costs are not imposed in open court and the judgment does not contain
an itemization of the imposed court costs.” Id. In London, the defendant was
assessed $329 in court costs, which included a $35 fee for summoning witnesses
pursuant to Article 102.011 of the Texas Code of Criminal Procedure. Id. at 506.
On appeal, the defendant challenged this fee for the first time, contending that Article
102.011 was unconstitutional as applied to him. Id. The Court of Criminal Appeals
held that, since the defendant had no way of knowing the breakdown of his court
costs until twenty-four days after his conviction, he was not given the opportunity to


                                           8
object to the $35 fee and could raise the issue for the first time on appeal. Id. at 506–
07.
      Here, the trial court imposed court costs in open court but did not state which
specific costs would be assessed. However, unlike in London, Appellant’s second
issue does not challenge a portion of the court costs. Rather, Appellant contends
that he should not have to pay any court costs because he is indigent. A breakdown
of the specific costs that were assessed in this case is irrelevant to Appellant’s
challenge. Therefore, it appears that Appellant failed to preserve his second issue
because he had an opportunity to object to the imposition of court costs on the basis
of his indigent status when the trial court announced in open court that costs would
be assessed.
      Moreover, Appellant’s indigent status is not a bar to the assessment of court
costs. The El Paso Court of Appeals addressed the same contention, based upon
Campbell, in Gonzalez v. State, No. 08-16-00257-CR, 2018 WL 1312945 (Tex.
App.—El Paso March 14, 2018, no pet.) (mem. op., not designated for publication).
        The court held that Campbell is inapplicable to criminal cases because
Rule 145 of the Texas Rule of Civil Procedure, the rule at issue in Campbell, applies
only to civil proceedings. Gonzalez, 2018 WL 1312945, at *2 (citing TEX. R. CIV.
P. 2). The court further reasoned that “a purpose of Rule 145 is to ensure that
indigent individuals will have access to the courts by preventing the imposition of
costs in certain circumstances.” Id. In a criminal case, indigent individuals are not
prevented access to the courts because costs are not assessed until after they are
convicted. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2018)). We
agree with the reasoning of the El Paso Court of Appeals and conclude that
Appellant’s indigent status is not a bar to the assessment of court costs against him.
      As Appellant acknowledges in his brief, other courts of appeals have held that
indigent criminal defendants are not excused from paying mandatory court costs.
                                           9
See Allen v. State, 426 S.W.3d 253, 259 (Tex. App.—Texarkana 2013, no pet.);
Williams v. State, 332 S.W.3d 694, 700 (Tex. App.—Amarillo 2011, pet. denied).
Appellant urges us to reconsider these cases in light of Campbell. However, we find
the holding in Gonzalez persuasive and decline to extend Campbell to criminal
proceedings. We overrule Appellant’s second issue.
      In Appellant’s third issue, he contends that the statutes authorizing the
assessment of court costs are unconstitutional as applied to him and violate his right
to equal protection because indigent civil litigants may be excused from paying court
costs. In response, the State contends that Appellant failed to preserve error because
he is raising this issue for the first time on appeal. Appellant again relies on London
for his contention that he may raise this issue for the first time on appeal. For the
same reasons discussed in Appellant’s second issue, it appears that Appellant has
not preserved this issue for appellate review.
      Moreover, Appellant has failed to show that the challenged statutes are
unconstitutional as applied to him. We note at the outset that the Waco Court of
Appeals addressed a similar contention in Martinez v. State, 507 S.W.3d 914, 917–
18 (Tex. App.—Waco 2016, no pet.). The El Paso Court of Appeals also addressed
the contention in Gonzalez. Gonzalez, 2018 WL 1312945, at *3.
       There is a presumption that a statute is valid and that the legislature acted
reasonably in enacting it. See Faust v. State, 491 S.W.3d 733, 743–44 (Tex. Crim.
App. 2015). An “as applied” challenge to the constitutionality of a statute asserts
that a statute, although generally constitutional, operates unconstitutionally as to the
claimant because of his particular circumstances. Gillenwaters v. State, 205 S.W.3d
534, 536 n.3 (Tex. Crim. App. 2006).
      Appellant contends that the statutes authorizing court costs in this case operate
unconstitutionally as applied to him because they violate his right to equal
protection. Alternatively, Appellant contends that Article 102.005(f) of the Texas
                                          10
Code of Criminal Procedure and Section 51.851(d) of the Texas Government Code
are unconstitutional as applied to him because “there is no rational basis for requiring
indigent criminal defendants to pay these fees when indigent civil litigants are not
required to.”
      Under the Equal Protection Clause of the Fourteenth Amendment, all persons
similarly situated shall be treated alike under the law. Plyler v. Doe, 457 U.S. 202,
216 (1982); Wood v. State, 18 S.W.3d 642, 651 n.9 (Tex. Crim. App. 2000). Because
the statutes authorizing court costs do not implicate a fundamental right or
discriminate against a suspect class, a rational basis test is appropriate. See In re
Shaw, 204 S.W.3d 9, 17–18 (Tex. App.—Texarkana 2006, pet. ref’d); Ex parte
Morales, 212 S.W.3d 483, 501 (Tex. App.—Austin 2006, pet. ref’d); see also Wood,
18 S.W.3d at 650. Thus, Appellant has the burden to show that the statutory
classification is not rationally related to a legitimate state interest. See Wood, 18
S.W.3d at 650–51.
      In order to prevail on an equal protection claim, Appellant must show that
(1) he was treated differently than other similarly situated persons and (2) he was
treated differently without a reasonable basis. Sanders v. Palunsky, 36 S.W.3d 222,
225 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Indigent criminal defendants
and indigent civil litigants are not similarly situated persons. Gonzalez, 2018 WL
1312945, at *3 (explaining that criminal defendants are not assessed costs until after
they have been convicted, whereas civil litigants may be assessed costs without a
conviction); Martinez, 507 S.W.3d at 917–18 (explaining that, but for Rule 145,
indigent civil litigants would be prevented from accessing the courts). We agree
with the reasoning of the Waco Court of Appeals in Martinez and the El Paso Court
of Appeals in Gonzalez. Appellant has failed to show that he was treated differently
than other similarly situated persons. We overrule Appellant’s third issue.


                                          11
        In Appellant’s fourth issue, he contends that the trial court erred by assessing
court costs against him under Article 102.0185 of the Texas Code of Criminal
Procedure because he was not convicted of an intoxication-related offense. In
Appellant’s fifth issue, he contends that the trial court erred by assessing court costs
against him twice because he was convicted of two offenses in a single criminal
action. The State concedes that the $29 charge listed on the bill of costs as “EMS
Fund” should be deleted and that Appellant should only be assessed one set of court
costs. Accordingly, we sustain Appellant’s fourth and fifth issues.
                                         This Court’s Ruling
        We modify the judgment of the trial court in cause number CR-03933 to
reflect that the amount of court costs is reduced from $278 to $249. Further, we
modify the judgment of the trial court in cause number CR-03934 to reflect that the
amount of court costs is reduced from $278 to $0. As modified, the judgments of
the trial court are affirmed. See TEX. R. APP. P. 43.2(b).




                                                                   JOHN M. BAILEY
July 19, 2018                                                      JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                     12
