London v. State, 526 S.W.3d 596

Background

Joshua London, found indigent and appointed counsel, pleaded guilty on the eve of trial to possession of a controlled substance with two prior enhancements; sentenced to 25 years and ordered to pay $329 in court costs.
The district clerk’s bill of costs included $35 labeled "Summoning Witness/Mileage," reflecting $5 per each of seven witnesses the State had subpoenaed.
London did not subpoena any witnesses, did not request issuance of subpoenas for defense witnesses, and made no sworn showing of any material favorable witness he would have called.
London challenged article 102.011(a)(3) (Tex. Code Crim. Proc.) as-applied, arguing the $5 per-witness fee violated his Sixth Amendment and Texas constitutional rights to compulsory process and confrontation because he was indigent.
The trial court assessed the fees only after conviction; London argued constructive notice of the fee deterred exercise of rights before trial.
The Court of Appeals (lead opinion) affirmed, holding London failed to show actual constitutional harm as applied in his case.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether article 102.011(a)(3) (the $5 per-witness summons fee) violated the defendant’s Sixth Amendment right to compulsory process as applied to an indigent defendant	London: the fee (and notice of it) deterred him from subpoenaing favorable witnesses; indigence makes the fee unconstitutional as applied	State/Majority: London made no plausible, sworn showing of material, favorable witnesses; fee assessed only on conviction and did not prevent compulsory process at trial	Held: No violation — appellant failed to show as-applied constitutional harm to compulsory process rights
Whether the fee violated the Confrontation Clause as applied	London: requiring an indigent defendant to bear costs to secure witnesses undermines his right to confront accusers	State/Majority: Confrontation occurs at trial; the fee was assessed post-conviction, so inability to pay did not bar confrontation or cross-examination at trial	Held: No violation — no demonstrated deprivation of confrontation rights as applied
Whether indigence alone establishes constitutional harm from post-judgment assessment of court costs	London: indigence itself is the injury; criminal defendants should not bear State’s costs for witnesses	State/Majority: Indigence alone is insufficient; courts require evidence of actual preventive effect or inability to obtain witnesses; precedents allow post-judgment costs so long as not required in advance	Held: Indigence alone insufficient in this as-applied challenge; appellant did not meet burden
Whether federal/civil practice differences (Fed. R. Crim. P. 17, federal fee statutes, Tx. civil rules) render Texas fee unconstitutional	London/Dissent: federal and civil rules protect indigents from similar costs, showing an evolving policy and constitutional concern	State/Majority: Policy differences do not make Texas statute unconstitutional; as-applied challenge limited to appellant’s showing	Held: Policy comparisons not dispositive; no as-applied constitutional violation shown

Key Cases Cited

Pointer v. Texas, 380 U.S. 400 (1965) (Confrontation Clause is a fundamental right applicable to the states)
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (compulsory process and confrontation limited to material and favorable evidence; procedural safeguards govern disclosure disputes)
Coy v. Iowa, 487 U.S. 1012 (1988) (physical barriers that prevent face-to-face confrontation can violate the Confrontation Clause)
Chambers v. Mississippi, 410 U.S. 284 (1973) (denial of opportunity to cross-examine critical witnesses can undermine due process)
Mattox v. United States, 156 U.S. 237 (1895) (historical importance of face-to-face confrontation and cross-examination)
Fuller v. Oregon, 417 U.S. 40 (1974) (upholding certain statutory recoupment schemes where procedural protections exist for indigents)