Joyce McMillin Sturdivant v. State
2014 Tex. App. LEXIS 3353
| Tex. App. | 2014Background
- Sturdivant was convicted of murder and attempted capital murder; sentenced to 30 and 15 years, concurrent.
- Trial court appointed a pro tem attorney after recusal of the elected district attorney.
- Written judgment listed $64,538.22 in court costs and included a finding that defendant had resources to pay all costs, including attorney pro tem and expert/investigator fees.
- Bill of Costs dated December 22, 2011 itemized $35,099.69 as attorney pro tem, expert witnesses, and investigator fees; judgment itself did not itemize costs.
- Sturdivant did not file a motion for new trial or otherwise challenge the costs in the trial court; original panel deemed error unpreserved, but Landers v. State later changed preservation analysis on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney pro tem fees can be taxed as court costs | Sturdivant contends such fees are not authorized costs. | State argues costs may include these fees under statutory scheme. | No; attorney pro tem fees may not be taxed as court costs. |
| Preservation of error given lack of opportunity to object to costs | Sturdivant was not given opportunity to object to pro tem costs. | State argues preservation rules apply traditionally. | Appellant preserved on remand; not forfeited due to lack of opportunity. |
| Alternative preservation routes aside from direct objection | Formal bill of exception or Article 103.008 motion could preserve error. | State contends such avenues were needed. | Failure to pursue these alternatives does not bar appellate consideration under Landers guidance. |
Key Cases Cited
- Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013) (presence of opportunity to object governs preservation; not forfeiting when no opportunity)
- Busby v. State, 984 S.W.2d 627 (Tex. Crim. App. 1998) (attorney pro tem fees not authorized as court costs; statutory scheme governs costs)
- Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) (proper remedy for erroneous costs is modification of judgment)
- Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013) (preservation principles for appellate review depend on opportunities to object)