London, Joshua, PD-0480-15

Defendant Joshua London pled guilty to possession of cocaine and was sentenced to 25 years; the court of appeals affirmed and this Court granted review.
The written judgment and bill of costs assessed $329 in court costs, including a $35 line item described as "Summoning Witness/Mileage."
London raised on appeal an as-applied constitutional challenge to Tex. Code Crim. Proc. art. 102.011(a)(3) (a $5 fee for summoning a witness and related mileage/expenses), asserting violations of confrontation and compulsory process and that he could not afford defense-related subpoenas.
At trial London did not object to the assessment on constitutional grounds, did not file a motion for new trial, and did not proffer evidence or a bill of exception clarifying whether the fee related to State or defense subpoenas or the specific amounts for summons versus mileage.
The State argued the claim was forfeited for failure to preserve error because factual development was required for an as-applied challenge; the court of appeals refused to consider the newly raised constitutional challenge.
The State contends Landers is distinguishable because Landers involved legal sufficiency and notice issues that did not require additional fact-finding, whereas London’s as-applied claim required a developed record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether London may raise an as-applied constitutional challenge to court-cost statutes for the first time on appeal	London: challenge wasn't available until after judgment (bill of costs filed later); thus he may raise it on appeal	State: London failed to preserve the claim by not objecting, not filing motion for new trial or bill of exception, and not developing factual record	Court of appeals: claim not preserved; appellate review refused because factual development was required and London waived the issue

Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995) (as-applied statutory constitutional challenges generally must be preserved by timely trial objection)
Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013) (distinguishes legal sufficiency/notice challenges not requiring additional facts from as-applied claims that do)
Cardenas v. State, 423 S.W.3d 396 (Tex. Crim. App. 2014) (addresses sufficiency of evidence to support assessed court costs)
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (addresses sufficiency challenge to court costs; does not excuse preservation for as-applied constitutional claims)
Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004) (no trial objection required to challenge sufficiency of the evidence on appeal)
Rosseau v. State, 396 S.W.3d 550 (Tex. Crim. App. 2013) (as-applied constitutional challenges may require development of the record to resolve)
Clark v. State, 305 S.W.3d 351 (Tex. App.—Houston [14th Dist.] 2010) (preservation rules: appellate complaint must match the trial objection)