London v. State, 2016 Tex. Crim. App. LEXIS 82

Background

Joshua London was found indigent, pleaded guilty to felony cocaine possession, and was sentenced to 25 years; the judgment ordered payment of $329 in court costs without itemization.
The clerk later filed a bill of costs showing a $35 “Summoning Witness/Mileage” fee under Tex. Code Crim. Proc. art. 102.011(a)(3) & (b).
London did not challenge court costs at sentencing; after appellate counsel was appointed, he raised an as-applied constitutional challenge to the witness/mileage fee, arguing it infringed his compulsory process and confrontation rights as an indigent defendant.
The First Court of Appeals declined to reach the merits, holding under Curry that an as-applied constitutional challenge cannot be raised for the first time on appeal.
The Court of Criminal Appeals granted review to decide (1) whether the as-applied challenge could be raised first on appeal and (2) whether the existing record (without a bill of exceptions) sufficed to resolve the claim.
The Court held (1) London need not have raised the as-applied challenge at trial because his first realistic opportunity was on direct appeal, and (2) the record was sufficient to evaluate the as-applied challenge, so the case was remanded for merits consideration.

Issues

Issue	Plaintiff's Argument (London)	Defendant's Argument (State)	Held
Whether an as-applied constitutional challenge to Art. 102.011 may be raised for the first time on direct appeal	The challenge may be raised on appeal because London had no opportunity at trial to object to post-judgment costs and was declared indigent before plea	Curry and preservation doctrine require trial objection; error was not preserved	Court: May be raised on direct appeal when the first opportunity to challenge arises on appeal; preservation rule does not bar review here
Whether the appellate record is sufficient to resolve an as-applied challenge without a bill of exceptions or other factual development	The existing record (indigency finding, judgment, bill of costs) shows application of Art. 102.011 and establishes indigency; no further facts needed	Additional factual development is required (e.g., ability to pay, which party summoned witnesses) for an as-applied challenge	Court: Record is sufficient here; no bill of exceptions required because indigency was established and no material change was alleged
Whether post-conviction imposition of a witness/mileage fee implicates right to present a defense for an indigent defendant	Imposing the fee post-conviction infringes compulsory process/confrontation by burdening the indigent’s ability to procure witnesses	Legislature mandates cost reimbursement regardless of who summoned witnesses; ability to pay not relevant to statutory costs	Court: Whether indigency affects the constitutional analysis is for the court of appeals on remand; but imposition here can be considered on the existing record
Whether a motion for new trial or Article 103.008 hearing was required to preserve or develop the record	A motion for new trial is ill-suited to challenge court costs; Article 103.008 or a civil suit are alternatives, but direct appeal remains viable	Preservation doctrine and Rule 33.2 (bill of exceptions) mean additional procedures are necessary to develop facts	Court: Motion for new trial unnecessary; bill of exceptions is an available tool when additional facts are needed, but was not required in this case

Key Cases Cited

Curry v. State, 910 S.W.2d 490 (Tex. Crim. App.) (as-applied challenges and preservation)
Gillenwaters v. State, 205 S.W.3d 534 (Tex. Crim. App. 2006) (timeliness/preservation principles)
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (court-cost challenges may be raised on appeal when not imposed in open court or not itemized)
Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013) (use of bill of exceptions; limits of motion for new trial for cost challenges)
Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013) (court-cost preservation principles)
Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App. 1992) (as-applied challenge burden)
Riles v. State, 452 S.W.3d 333 (Tex. Crim. App. 2015) (procedural default requires knowledge and failure to object)
State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) (timing of as-applied claims)
Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) (state must provide basic tools for indigent defense)