                                                                                 PD-0480-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 8/26/2015 2:23:33 PM
                                                                 Accepted 8/26/2015 2:37:22 PM
August 26, 2015           No. PD-0480-15                                         ABEL ACOSTA
                                                                                         CLERK

                                   In the
                        Court of Criminal Appeals
                        
                           No. 01-13-00441-CR
                      In the Court of Appeals for the
                  Fourteenth District of Texas at Houston
                        
                               No. 1367861
                       In the 260th District Court of
                           Harris County, Texas
                        
                       JOSHUA LONDON
                                Appellant
                                   V.
                    THE STATE OF TEXAS
                            Appellee
                        
      STATE’S BRIEF ON DISCRETIONARY REVIEW
                        

                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas

                                                ERIC KUGLER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                TBC No. 796910
                                                kugler_eric@dao.hctx.net

                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                Tel.: 713-755-5826
                                                FAX: 713-755-5809

                                                Counsel for Appellee

                   ORAL ARGUMENT PERMITTED
               STATEMENT REGARDING ORAL ARGUMENT

This Court has permitted oral argument in this case.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Chris Morton  Assistant District Attorney at trial

Appellant or criminal defendant:

      Joshua London

Counsel for Appellant:

      Jani Wood  Assistant Public Defender on appeal

      Charles Brown  Counsel at trial

Trial Judge:

      Hon. Jim Anderson  Presiding Judge (visiting)

      Hon. Brad Hart  Presiding Judge (elected)
                                          TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................. 1

IDENTIFICATION OF THE PARTIES .................................................................... 1

INDEX OF AUTHORITIES ...................................................................................... 3

STATEMENT OF THE CASE................................................................................... 5

ISSUE PRESENTED ................................................................................................. 5

  The Court of Appeals determined that the constitutional challenge to the
  Sheriff’s fees could not be raised for the first time on appeal. The basis for the
  challenge was not available to Mr. London until 19 days after the judgment was
  signed. Did the Court of Appeals err in refusing to consider a challenge that was
  only available post-trial, in derogation of Landers v. State? ..................................5
SUMMARY OF THE ARGUMENT ......................................................................... 5

ARGUMENT ............................................................................................................. 6

  The appellant did not preserve the issue he raised on appeal because he failed to
  object in the trial court on the same basis and failed to develop a record on how
  the court costs were applied to him. .......................................................................6
PRAYER .................................................................................................................. 13

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 14




                                                             2
                                     INDEX OF AUTHORITIES


CASES

Brady v. Fourteenth Court of Appeals,
  795 S.W.2d 712 (Tex. 1990) ................................................................................. 11

Cardenas v. State,
  423 S.W.3d 396 (Tex. Crim. App. 2014) ................................................................8

Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist.,
  826 S.W.2d 489 (Tex. 1992) ................................................................................. 11

Clark v. State,
  305 S.W.3d 351 (Tex. App.—
  Houston [14th Dist.] 2010).....................................................................................7

Curry v. State,
  910 S.W.2d 490 (Tex. Crim. App. 1995) ............................................................7, 8

Johnson v. State,
  14-14-00475-CR (Tex. App.
  – Houston [14th Dist.] Aug. 25, 2015, no pet. h.) .................................................9

Johnson v. State,
  423 S.W.3d 385 (Tex. Crim. App. 2014) ................................................................8

Landers v. State,
  10-11-00408-CR, 2012 WL 3799212 (Tex. App.—
  Waco Aug. 30, 2012) ..............................................................................................9

Landers v. State,
  402 S.W.3d 252 (Tex. Crim. App. 2013) ....................................................9, 11, 12

London v. State,
  01-13-00441-CR, 2015 WL 1778583 (Tex. App.—
  Houston [1st Dist.] Apr. 16, 2015, pet. granted) ....................................................5

Mayer v. State,
 309 S.W.3d 552 (Tex. Crim. App. 2010) ..............................................................10



                                                         3
Moff v. State,
 131 S.W.3d 485 (Tex. Crim. App. 2004) ................................................................8

Rylander v. Caldwell,
  23 S.W.3d 132 (Tex. App.—
  Austin 2000, no pet.) ............................................................................................ 11

State v. Rosseau,
  398 S.W.3d 769 (Tex. App.—
  San Antonio 2011), aff’d,
  396 S.W.3d 550 (Tex. Crim. App. 2013) .............................................................. 11

Sturdivant v. State,
  445 S.W.3d 435 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) ....................10

STATUTES

TEX. CODE CRIM. PROC. art. 102.011(a)(3) (West 2010) ...........................................7

TEX. CODE CRIM. PROC. art. 102.011(b) (West 2010) ................................................8

TEX. CODE CRIM. PROC. art. 103.008 (West 2010) ..................................................12

RULES

TEX. R. APP. P. 33.1(a) ................................................................................................6

TEX. R. APP. P. 33.1(a)(1)(A) .....................................................................................7

TEX. R. APP. P. 44.2(a) ..............................................................................................12




                                                           4
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                          STATEMENT OF THE CASE

      The appellant was charged with possession of cocaine (CR – 14). He pled

“guilty” to the charge, and the court sentenced him to 25 years in prison (CR – 77).

The court of appeals affirmed the conviction. London v. State, 01-13-00441-CR,

2015 WL 1778583 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, pet. granted).

But this Court granted review.


                                 ISSUE PRESENTED

      The Court of Appeals determined that the constitutional challenge
           to the Sheriff’s fees could not be raised for the first time on
           appeal. The basis for the challenge was not available to Mr.
           London until 19 days after the judgment was signed. Did
           the Court of Appeals err in refusing to consider a challenge
           that was only available post-trial, in derogation of Landers
           v. State?

                       SUMMARY OF THE ARGUMENT

      The appellant challenged on appeal the constitutionality of the court cost

statutes as applied to him. But he failed to object in the trial court, to file a formal

bill of exception, or to otherwise take any steps to develop the record on how the

court cost statutes were actually applied to him. Therefore, he failed to preserve

the constitutional as-applied claim for appellate review, and the court of appeals

properly dismissed that claim on that basis.


                                           5
                                   ARGUMENT

      The appellant claims that the assessment of court costs for summoning

witnesses is unconstitutional as applied to him. (App’nt PDR Brf. 7). Specifically,

he complains that the assessment violated his rights to confrontation and

compulsory process. This argument lacks merit because he failed to object to that

specific court cost at trial, did not develop a record on how the court costs were

applied to him, and did not preserve the constitutional issues for appellate review.

      A notation on the appellant’s written judgment states “Court Costs,” and the

sum of “$294.00” is typed below that heading (CR – 35). That “$294.00” figure

was then crossed out, and the number “329” was written in its place along with

someone’s apparent initials (CR – 77). On the second page of the judgment, the

“Court ORDERS Defendant to pay all fines, court costs, and restitution as

indicated above.” (CR – 78) (emphasis in original). Finally, the district clerk

prepared and filed a bill of costs that breaks down the $329 in assessed court costs,

including $35 for “Summoning Witness/Mileage.” (CR – 80).



      The appellant did not preserve the issue he raised on appeal
           because he failed to object in the trial court on the same
           basis and failed to develop a record on how the court costs
           were applied to him.
      The Texas Rules of Appellate Procedure require a party to preserve error for

appellate review by demonstrating the error on the record. TEX. R. APP. P. 33.1(a);


                                          6
Clark v. State, 305 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 2010), aff’d,

365 S.W.3d 333 (Tex. Crim. App. 2012). The party must make the complaint in a

timely manner and state the grounds for the ruling that the complaining party seeks

from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context. TEX. R.

APP. P. 33.1(a)(1)(A).

      In raising the complaint on appeal, the party must ensure the point of error is

the same as the complaint or objection made during trial. Clark, 305 S.W.3d at

354. Even constitutional errors can be waived if a party fails to properly object to

the errors at trial. Id. at 355. A challenge to the constitutionality of a statute as

applied to a defendant may not be raised for the first time on appeal. Curry v. State,

910 S.W.2d 490, 496 (Tex. Crim. App. 1995). Therefore, if a party’s objection at

trial does not correspond with its issue on appeal, the party has waived that issue.

Clark, 305 S.W.3d at 354.

      In the present case, the appellant claimed on appeal that Article

102.011(a)(3) of the Texas Code of Criminal Procedure was unconstitutional as

applied to him. (App’nt Brf. 8). Article 102.011(a)(3) provides that a “defendant

convicted of a felony or a misdemeanor shall pay the following fees for services

performed in the case by a peace officer…$5 for summoning a witness.” TEX.

CODE CRIM. PROC. art. 102.011(a)(3) (West 2010). Article 102.011(b) further



                                          7
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.” TEX. CODE CRIM. PROC. art. 102.011(b) (West 2010). There was no

indication in the bill of costs how much of the $35 “Summoning Witness/Mileage”

fee was for summoning witnesses and how much was for mileage and expenses.

Nevertheless, there is no evidence that the appellant ever objected to the

assessment of such court costs on any basis. Therefore, his constitutional claims

were not preserved for appellate review, and the court of appeals properly

dismissed his claim.

      The appellant cites Cardenas v. State, 423 S.W.3d 396, 398–99 (Tex. Crim.

App. 2014), and Johnson v. State, 423 S.W.3d 385, 391–92 (Tex. Crim. App.

2014), in support of his argument that an objection was not required. (App’nt PDR

Brf. 9). But those cases dealt with the sufficiency of the evidence to support court

costs, not the constitutionality of the court-cost statutes themselves. It is well-

settled that no trial objection is required to challenge the sufficiency of the

evidence on appeal. See Moff v. State, 131 S.W.3d 485, 488–89 (Tex. Crim. App.

2004). But it is equally well-settled that a trial objection is required to challenge

the constitutionality of a statute as applied to a particular litigant. See Curry, 910



                                          8
S.W.2d at 496; see also Johnson v. State, 14-14-00475-CR, slip. op. at 6 (Tex.

App. – Houston [14th Dist.] Aug. 25, 2015, no pet. h.) (“Because neither Johnson

nor Cardenas provides appellant with an exception to the requirement that he

preserve his facial constitutional challenge in the trial court, we conclude that

appellant failed to preserve error for appellate review.”).     Therefore, a trial

objection was required in the present case, and the appellant waived his complaint

on appeal by failing to make such a trial objection.

      The appellant also cites Landers v. State, 402 S.W.3d 252 (Tex. Crim. App.

2013), in support of his argument. (App’nt PDR Brf. 10). In Landers, court costs

and included fees of $3,718.50 for an attorney pro tem and $440.00 for

investigative costs of the prosecutor were assessed against Landers without notice.

On appeal, the appellant challenged the statutory authority and sufficiency of the

evidence to sustain the assessment. Landers v. State, 10-11-00408-CR, 2012 WL

3799212, at *3 (Tex. App.—Waco Aug. 30, 2012). This Court held that Landers

was not required to file a motion for new trial to challenge the assessment of such

costs on appeal because his “complaint was one of law and not facts.” Landers,

402 S.W.3d at 255. As in all sufficiency challenges, there could be no further

factual development of the record because sufficiency challenges are based on the

existing record.




                                          9
      In the present case and unlike Landers, whether the appellant’s rights to

confrontation and compulsory process were violated required further factual

development. Specifically, as highlighted by the appellant, additional fact-finding

was required on “whether this fee is for the State’s subpoenas or the defense

subpoenas.” (App’nt Brf. 8). Additional fact-finding was also required on whether

the appellant truly “cannot bear the costs associated with the defense of his

constitutional rights,” as he claimed. (App’nt Brf. 10). Thus, because additional

fact-finding was required in order to support the appellant’s as-applied

constitutional challenge to the statutory court costs, the appellant should have filed

a motion for new trial, or, in the alternative, a formal bill of exception. See id., 402

S.W.3d at 256 (Keller, P.J., concurring). It simply defies logic to allow an as-

applied challenge to proceed without an opportunity to develop the record on how

the statute was applied to the facts of the particular case.

      The appellant cites Sturdivant v. State, 445 S.W.3d 435 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d), in support of his claim that a formal bill of

exception was not required to develop the record. But like Landers, Sturdivant was

challenging the sufficiency of the evidence to support the assessed fees under

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010), rather than the

constitutionality of the court cost statute as applied to him. Thus, there could be no

further factual development of the record. As-applied constitutional challenges, on



                                           10
the other hand, require a factual development. 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) (“Rosseau’s motion to quash only raised an ‘as-applied’ challenge to the

constitutionality of section 22.011(f), which could not be determined pre-trial

because it depends on the facts developed at trial.”); see also Carrollton-Farmers

Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 551

(Tex. 1992) (“determination of whether statute as applied violates Constitution

‘requires a fully-developed factual record.’”) (citing Brady v. Fourteenth Court of

Appeals, 795 S.W.2d 712 (Tex. 1990)). Because the appellant’s claim required full

factual development, he should have filed a formal bill of exception to develop the

record. His failure to do so waived the issue for appellate review. See Landers,

402 S.W.3d at 255 (“A motion for new trial is required to preserve error only when

it is necessary to adduce facts not in the record.”).

      Finally, the appellant cites a civil case, Rylander v. Caldwell, 23 S.W.3d 132

(Tex. App.—Austin 2000, no pet.), in support of his claim that he could not have

challenged the constitutionality of Article 102.011(a)(3) under the procedure

established by Article 103.008. (App’nt PDR Brf. 11). Article 103.008 provides:

“On the filing of a motion by a defendant not later than one year after the date of

the final disposition of a case in which costs were imposed, the court in which the

case is pending or was last pending shall correct any error in the costs.” TEX. CODE



                                           11
CRIM. PROC. art. 103.008 (West 2010). The Rylander court held that “seeking a

declaration that the statute imposing the costs is unconstitutional” did not

constitute “error” under Article 103.008. Rylander, 23 S.W.3d at 137. But the

term “error” has traditionally included both constitutional and non-constitutional

errors. TEX. R. APP. P. 44.2(a). And if a court cost should not have been assessed

because it was unconstitutional, then surely there would be an error in the assessed

costs, which could be challenged and corrected under Article 103.008. Thus,

Rylander is incorrect and should be repudiated by this Court.          Nevertheless,

Rylander is ultimately irrelevant to this case because the appellant was required to

develop the record in order to support his as-applied challenge to the statute and to

preserve the issue for appellate review.       Landers, 402 S.W.3d at 255.       The

appellant failed to develop such a record. Therefore, his claim was not preserved

for appellate review, and the court of appeals properly rejected it.




                                          12
                                      PRAYER

      It is respectfully submitted that the court of appeals properly affirmed the

judgment in this case. Therefore, this Court should affirm the ruling of the lower

court of appeals for the reasons stated.


                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas

                                                /s/ Eric Kugler
                                                ERIC KUGLER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                kugler_eric@dao.hctx.net
                                                TBC No. 796910




                                           13
             CERTIFICATE OF SERVICE AND COMPLIANCE

      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 2,611 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

      Jani Wood                          Lisa McMinn
      Assistant Public Defender          State Prosecuting Attorney
      Harris County, Texas               P.O. Box 13046
      1201 Franklin, 13th Floor          Austin, Texas 78711
      Houston, Texas 77002               Lisa.McMinn@SPA.texas.gov
      Jani.Maselli@pdo.hctx.net


                                               /s/ Eric Kugler
                                               ERIC KUGLER
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               (713) 755-5826
                                               TBC No. 796910

Date: August 26, 2015




                                       14
