Affirmed and Memorandum Opinion filed July 10, 2018.




                                     In the

                   Fourteenth Court of Appeals

                             NO. 14-17-00173-CR

                    AARON MICHAEL BLAY, Appellant
                                       v.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1464213

                 MEMORANDUM OPINION


      Appellant Aaron Michael Blay was convicted by a jury of capital murder. The
trial court sentenced him to life imprisonment without parole under section
12.31(a)(2) of the Texas Penal Code. See Tex. Penal Code § 12.31(a)(2) (West
2017). Appellant challenges his sentence, arguing that the Texas capital-murder-
sentencing scheme violates both the United States and Texas Constitutions.
Appellant also contends that being charged $185 in court costs for “Summoning
Witness/Mileage” under article 102.011(a)(3) and (b) of the Texas Code of Criminal
Procedure violated his federal and state constitutional rights to compulsory process
and to confrontation. See Tex. Code Crim. Proc. art. 102.011(a)(3), (b) (West 2017).
We affirm.

                                I.     BACKGROUND

      On April 8, 2015, appellant and two other individuals entered a smoke shop
to commit a robbery. Appellant carried a .40-caliber firearm. Appellant fired at
least one shot at the store owner, complainant Jacob Espinor, hitting him in the chest.
By the time police arrived at the scene, complainant had died from his injuries.

      Appellant was indicted for capital murder and was convicted by a jury. The
trial court sentenced appellant to life without parole in the Institutional Division of
the Texas Department of Criminal Justice. Appellant was assessed fees in a criminal
bill of cost, including a $185 fee for “Summoning Witness/Mileage.” Appellant
timely noticed his appeal and now brings three issues.

                                 II.    ANALYSIS

A. Facial challenges to mandatory life-without-parole sentence for adult capital
   felons
      In his first two issues, appellant argues that the automatic punishment of life
imprisonment without parole violates the Eighth Amendment of the United States
Constitution and article I, section 13, of the Texas Constitution. Appellant contends
that the mandatory scheme under section 12.31(a)(2) of the Texas Penal Code is
unconstitutional because there is no vehicle to consider mitigating evidence
justifying a less-severe sentence, whether by the jury or by parole authorities. See
Tex. Penal Code § 12.31(a)(2). Appellant asks this court to extend the United States
Supreme Court’s holding in Miller v. Alabama to adult offenders. See 567 U.S. 460,
479, 489 (2012) (holding that imposing mandatory sentence of life without
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possibility of parole on individuals who commit capital murder before age of
eighteen violates Eighth Amendment).

      The State responds that appellant failed to object to his sentence on these
grounds in the trial court and cannot challenge his sentence on appeal. We agree.
Before a party may present a complaint for appellate review, generally the record
must show that the complaint was made to the trial court by a timely request,
objection, or motion. Tex. R. App. P. 33.1; Karenev v. State, 281 S.W.3d 428, 434
(Tex. Crim. App. 2009) (“[A] defendant may not raise for the first time on appeal a
facial challenge to the constitutionality of a statute.”); Cerna v. State, 441 S.W.3d
860, 867–68 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (defendant failed to
preserve facial challenges to capital-sentencing statute); Sloan v. State, 418 S.W.3d
884, 891 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (same); Wilkerson v.
State, 347 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(same).

      Appellant concedes that he did not raise these issues in the trial court, but
argues preservation was not required because the errors are fundamental and because
raising an objection would have been futile in light of controlling law. However,
this court already has rejected substantially similar complaints. Cerna, 441 S.W.3d
at 867–68 (rejecting appellant’s argument “that the errors he asserts amount to
fundamental error and therefore preservation of error in the trial court is not
necessary”); Sloan, 418 S.W.3d at 891–92 (rejecting appellant’s arguments that “he
should be excepted from preserving error because any objection would have been
futile at the time of sentencing and he now raises a ‘right not recognized’” and that
Miller “weakened earlier precedent approving of mandatory sentencing”).

      Because appellant did not voice these facial constitutional complaints against



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his sentence in the trial court, he failed to preserve error.1 We overrule appellant’s
first and second issues.

B. As-applied challenges to court costs for witness subpoenas and mileage

           In his third issue, appellant argues that the imposition of a $185 fee for
“Summoning Witness/Mileage” is unconstitutional as applied to him as an indigent
defendant because it violated his rights to compulsory process and to confront
witnesses.2 See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim.
Proc. art. 102.011(a)(3), (b) (mandating—after defendant is convicted of felony or
misdemeanor—the assessment of $5 fee for summoning each witness and 29 cents-
per-mile fee for mileage required for officer to perform this service).

       We have held these types of fees constitutional on an as-applied basis on
almost identical grounds. Merrit v. State, 529 S.W.3d 549, 558–59 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d) (no violation of right to compulsory process
where appellant did not “show[] that other material, favorable witnesses were
available but not called by appellant due to his constructive notice of the witness and
mileage fees”; no violation of right to confront witnesses where “appellant’s
inability to pay the postjudgment fees could not have prevented him from
confronting any witnesses at trial, before the fees were assessed”); Eugene v. State,
528 S.W.3d 245, 250–51 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (same);
see London v. State, 526 S.W.3d 596, 598–602 (Tex. App.—Houston [1st Dist.]


       1
         Even if error had been preserved, we consistently have held that an automatic sentence of
life without parole is not unconstitutional when assessed against an adult offender convicted of
capital murder. See Sloan, 418 S.W.3d at 891–92 (refusing to extend Miller to adult-offender
context); Wilkerson, 347 S.W.3d at 722–23 (holding that automatic sentence of life without parole
did not violate either United States or Texas Constitution). Here, appellant was twenty-four years
old when he committed the capital offense.
       2
        Appellant does not dispute that the record supports at least $185 in assessed “Summoning
Witness/Mileage” fees.

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2017, pet. ref’d). Likewise, appellant fails to explain what he would have done
differently had he not been on constructive notice that, upon conviction, he would
be assessed such fees—as required to meet his burden to prevail on his as-applied
challenge. See Eugene, 528 S.W.3d at 250–51.

      We overrule appellant’s third issue.

                             III.   CONCLUSION

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.




                                      /s/       Marc W. Brown
                                                Justice


Panel consists of Justices Boyce, Jamison, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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