PD-0480-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/28/2015 3:39:43 PM
July 29, 2015 Accepted 7/28/2015 3:54:42 PM
ABEL ACOSTA
CLERK
NO. PD 480-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JOSHUA LONDON,
Appellant
v.
THE STATE OF TEXAS
Appellee
On Petition for Discretionary Review from the First Court of Appeals in
No 01-13-00441-CR
Cause Number 1367861
from the 230th District Court of Harris County, Texas
BRIEF FOR APPELLANT
Oral Argument Was Not Granted ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
JANI MASELLI WOOD
Assistant Public Defender
Harris County, Texas
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Counsel for Appellant
Joshua London
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Joshua London
TDCJ# 01856820
Beto Unit
1391 FM 3328
Tennessee Colony, TX 75880
PRESIDING JUDGE: Hon. Brad Hart, Presiding Judge
Hon. Jim Anderson, Visiting Judge
230th District Court
Harris County, Texas
1201 Franklin, 16th floor
Houston, Texas 77002
TRIAL PROSECUTOR: Mr. Chris Morton
APPELLATE PROSECUTOR: Mr. Eric Kugler
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Mr. Charles A. Brown, Jr.
708 Main Street, Suite 7
Houston, Texas 77002
DEFENSE COUNSEL ON APPEAL: Jani Maselli Wood
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
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TABLE OF CONTENTS
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The error was preserved based upon precedent from this Court.. . . . . . . . . . . . 9
No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Courts of Appeals application of Landers. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Compliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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INDEX OF AUTHORITIES
Cases:
Cardenas v. State,
423 S.W.3d 396 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Landers v. State,
402 S.W.3d 252 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . passim
London v. State,
01-13-00441-CR, 2015 WL 1778583
(Tex. App.—Houston [1st Dist.] Apr. 16, 2015, pet. granted). . . . . . . . . . . . . 6, 9
Ramirez v. State,
410 S.W.3d 359 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). . . . . . . . . . . 8
Rylander v. Caldwell,
23 S.W.3d 132 (Tex. App.– Austin 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . 11
Sturdivant v. State,
445 S.W.3d 435 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). . . . . . . 10, 11
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Statutes and Rules:
TEX. CODE CRIM. PROC. ART. 102.011(A)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEXAS CODE OF CRIMINAL PROCEDURE 103.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEXAS RULE OF APPELLATE PROCEDURE 33.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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STATEMENT OF THE CASE
This is an appeal from a conviction for possession of cocaine 1-4 grams. (C.R.
at 77). Mr. London pleaded guilty without an agreed recommendation. (C.R. at 66).
The judgment reflects he pleaded true to two enhancement paragraphs. (C.R. at 77).
The court reporter was waived for the plea as well as for the sentencing. (C.R. at 106).
The trial court sentenced Mr. London to 25 years imprisonment. (C.R. at 77). The
trial court did not originally certify Mr. London’s right to appeal. (C.R. at 94). Mr.
London timely filed a notice of appeal. (C.R. at 81). After the case was abated, the
trial court provided a new certification giving Mr. London permission to appeal.
(Supp. C.R. at 5).
In an unpublished opinion, the First Court of Appeals affirmed Mr. London’s
conviction. London v. State, 01-13-00441-CR, 2015 WL 1778583 (Tex.
App.—Houston [1st Dist.] Apr. 16, 2015, no. pet. h.). No motion for rehearing was
filed. This petition was filed on May 1, 2015. The petition was granted on June 24,
2015. After an extension of time, this brief is timely if filed before August 7, 2015.
APPELLANT’S GRANTED ISSUE:
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?
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STATEMENT OF FACTS
Mr. London was ordered to pay court costs totaling $329 including a $35
“Summoning Witness/Mileage” cost. (C.R. at 80). The cost bill was prepared
nineteen days after the judgment was filed. (C.R. at 77-80). There is no record this
cost bill was ever sent to Mr. London or his attorney. The record and cost bill are
silent as to whether the $35 fee was for the State’s subpoenas or the defense
subpoenas.
SUMMARY OF THE ARGUMENT
The Court of Appeals refused to consider the constitutionality of the Sheriff’s
fees, deeming it unpreserved. “Summoning Witness/Mileage” cost is one of a
number of costs that courts order defendants to pay upon conviction of a crime. Mr.
London challenged this fee as unconstitutional as-applied to him because he is
indigent.
Mr. London was never provided a cost bill (as the law requires now)1 and one
was not even prepared until 19 days after the judgment was signed. This issue was
preserved at the first opportunity. The Court should find it was preserved and
remand to the Court of Appeals for consideration of the constitutional challenge.
1
The Texas Code of Criminal Procedure 103.001 was amended and as of June 19,
2015, the law stands:
(b) In a court other than a justice or municipal court, a cost is not payable
by the person charged with the cost until a written bill containing the items
of cost is:(1) produced;(2) signed by the officer who charged the cost or the
officer who is entitled to receive payment for the cost; and(3) provided to
the person charged with the cost.
Elimination of certain court fees and costs and to the bill of costs provided to a
defendant, 2015 Tex. Sess. Law Serv. Ch. 1141 (S.B. 287) (VERNON'S)
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ARGUMENT
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?
The Code of Criminal Procedure mandates the following fee:
(A) A defendant convicted of a felony or a misdemeanor shall pay the
following fees for services performed in the case by a peace officer:
(3) $5 for summoning a witness.
TEX. CODE CRIM. PROC. ART. 102.011(A)(3)(emphasis supplied). The First Court of
Appeals has determined that each and every time the State subpoenas a witness,
regardless of the number of trial resets or uncalled witnesses, the defendant must bear
that cost. See Ramirez v. State, 410 S.W.3d 359, 366 (Tex. App.—Houston [1st Dist.]
2013, pet. ref’d)(holding that the statute requires “a $5 fee for each witness summoned
each time the witness is summoned.”).
The Court of Appeals held error was waived.
The Court of Appeals refused to consider this challenge, holding the error was
waived because it was not raised in the trial court:
London argues, with little more explanation, that article 102.011(a)(3) is
unconstitutional as applied to him because he is indigent. London did
not raise this complaint in the trial court. A defendant may not raise for
the first time on appeal an as-applied challenge to constitutionality of a
statute. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995).
However, he argues that under Johnson v. State, 423 S.W.3d 385 (Tex.
Crim. App.2014), error preservation is not required in this circumstance.
In Johnson, the Court of Criminal Appeals held that a challenge to the
factual basis for assessment of statutory court costs could be raised for
the first time on appeal. Id. at 390. The Court did not address whether a
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challenge to the constitutionality of the underlying statute could be raised
for the first time on appeal, and it did not overrule Curry. See id. Because
London did not raise his as-applied constitutional challenges in the trial
court, we hold that this issue is waived, and we overrule it.
London v. State, 2015 WL 1778583, at *4.
The error was preserved based upon precedent from this Court.
This Court explained that challenges to court costs can be raised for the first
time on appeal and “[c]onvicted defendants have constructive notice of mandatory
court costs set by statute and the opportunity to object to the assessment of court
costs against them for the first time on appeal or in a proceeding under Article
103.008 of the Texas Code of Criminal Procedure.” Cardenas v. State, 423 S.W.3d 396,
399 (Tex. Crim. App. 2014). In a companion case decided the same day, Johnson v.
State, the Court further explained that because the cost bill is most likely unavailable at
the time of the judgment, an “Appellant need not have objected at trial to raise a claim
challenging the bases of assessed costs on appeal.” Johnson v. State, 423 S.W.3d 385,
391 (Tex. Crim. App. 2014).
No objection was necessary in the trial court.
This case is similar to Landers v. State where this Court explained that
challenging the court cost for an attorney pro tem could be raised for the first time on
appeal, holding:
Since the fees were not imposed in open court and she was not required
to file a motion for new trial, she has not forfeited the complaint on
appeal.
Landers v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013). In Landers, the cost bill
was available six days after the judgment and this Court explained:
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No notice of this document was given to the appellant or her attorney
and no further proceedings were held. Consequently, the appellant was
not given an opportunity to object to the imposition of these costs. Since
she was not given the opportunity, the absence of an objection is not
fatal to her appeal.
Landers, 402 S.W.3d at 255. This Court went on to declare that Landers was not
required to object in a motion for new trial because there was no notice the cost bill
had ever been created and it would “allow a judge to de facto alter the statutory time
frame for motions for new trial.” Landers, 402 S.W.3d at 255.
The cost bill in this case was created on May 22, 2013, which was 19 days after
the judgment was entered on May 3, 2013. (C.R. 77-80). This Court has held that Mr.
London was not required to file a motion for new trial in order to preserve his
challenge.
The Courts of Appeals application of Lan d e rs
After Landers was decided, the First Court of Appeals considered a case on
remand:
... as in Landers, appellant was not given the opportunity to object to the
imposition as court costs of attorney pro tern fees that were not itemized
in a bill of costs until thirteen days after the trial court signed the
judgment. See 402 S.W.3d at 255. Because appellant did not have the
opportunity to object and she was not required to file a motion for new
trial to raise this complaint, we hold that she has not forfeited her
complaint on appeal.
Sturdivant v. State, 445 S.W.3d 435, 439-40 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d). What is helpful in this case is the consideration of the State’s counter-
arguments. First, the State argued “that appellant could have raised the issue in a
formal bill of exception pursuant to TEXAS RULE OF APPELLATE PROCEDURE 33.2.”
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Sturdivant, 445 S.W.3d at 440. The Court of Appeals rejected that argument,
explaining:
Although this error may not have been discovered until after trial, it is
not the type of error that requires the complaining party to affirmatively
put additional evidence into the record for the complaint to be
cognizable on appeal. We therefore conclude that appellant was not
required to file a formal bill of exception to preserve her complaint
concerning the attorney pro tern fees.
Sturdivant, 445 S.W.3d at 440.
Second, “[t]he State also argue[d] that appellant could have brought her
complaint to the attention of the trial court by filing a motion to correct costs
pursuant to Code of Criminal Procedure article 103.008.” Sturdivant, 445 S.W.3d at
440. This, too, was rejected by the Court of Appeals:
The Legislature provided a statutory mechanism to seek correction, but
it did not intend to foreclose a defendant from seeking correction of
costs by other means, such as a direct appeal.
Sturdivant, 445 S.W.3d at 440. Additionally, Mr. Landers is foreclosed from
challenging the constitutionality of fees in a 103.008 hearing:
Article 103.008(a) of the Code of Criminal Procedure 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. By its express language, this article applies in cases in which a
party complains of an “error” in the costs assessed.
Clearly, Caldwell’s suit does not concern an allegation of any “error”
in the calculation of costs. Rather, Caldwell is seeking a declaration that
the statute imposing the costs is unconstitutional. We therefore find
article 103.008 inapplicable...
Rylander v. Caldwell, 23 S.W.3d 132, 137 (Tex. App.– Austin 2000, no pet.). No
constitutional challenge can be made in a 103.008 hearing.
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Conclusion
Mr. London’s challenge to the constitutionality of the Sheriff’s fees was raised
at the first available juncture. The Court of Appeals should be reversed and this cause
remanded for consideration of the constitutional challenge.
PRAYER
Mr. London prays this Court reverse the Court of Appeals and remand.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
/s/ Jani J. Maselli Wood
______________________
JANI J. MASELLI WOOD
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th Floor
Houston Texas 77002
Jani.Maselli@pdo.hctx.net
(713) 368-0016
(713) 368-4322
TBA No. 00791195
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CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. Proc. 9.5, this certifies that on July 28, 2015, a copy of the
foregoing was served electronically to counsel for the state (through texfile.com) at the
following addresses:
Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046,
Austin, TX 78711,
information@spa.texas.gov
Eric Kugler
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
kugler_eric@dao.hctx.net
Jani Maselli Wood
______________________________
JANI J. MASELLI WOOD
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CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
petition complies with the type-volume limitations of Tex. R. App. Proc. 9.4(i)(2)(D).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this
petition contains 2755 words printed in a proportionally spaced typeface.
2. This petition is printed in a proportionally spaced, serif typeface using
Garamond 14 point font in text and Garamond 14 point font in footnotes produced
by Corel WordPerfect software.
3. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
Jani Maselli Wood
____________________________
JANI J. MASELLI WOOD
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CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that
this brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this
brief contains 9903 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using
Garamond 14 point font in text and Garamond 13 point font in footnotes produced
by Corel WordPerfect software.
3. Upon request, undersigned counsel will provide an electronic version of
this brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/ Jani J. Maselli
_____________________
JANI J. MASELLI
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London, Joshua
Combined Opinion