# IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

N O . P D - 1 6 3 7 - 1 2
TRIST AN LANDERS A/K /A TRIST AN MC NIEL, App ellant V. THE S TATE O F TEXAS
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F ROM THE TE NTH COURT OF A P P EALS

MCLENNAN C OUNTY
W omack , J., delive red the opinion of the Court, in w hich Me yers, Price

, Johnson, Keasler, Herv ey, Coc hran, and Alcala, JJ., joined. Keller, PJ., filed a conc urring opinion.
The issue in this case is whether the appellant may complain for the first time on appea l about the trial c ourt’s imposition, s ua sponte a nd afte r proc eeding s had adjourne d, of costs for the appointed pr osecutor pr o tem and its investiga tor. Be cause the appe llant did not have the opportunity

to object, we hold that she may make the c omplaint on appeal. We shall re verse the holding of

the Court of Appe als and re mand for f urther pr ocee dings.

## 2

The a ppellant was indicte d for tampe ring with a witness. The e lected district a ttorney 1



## rec used himself and his off ice f rom her c ase be cause he had pr eviously repr esente d the appe llant “adve rsely

to the State of Texas.” An a ttorney pro tem wa s appointed to prosec ute the appe llant. The a ppellant was c onvicted and se ntence d in open cour t to two y ear s’ imprisonment and a $10,000 fine . At sentenc ing, the judge made no mention of imposing court c osts. The written judgme nt (which wa s otherwise ty ped) inc luded $4,562.50 in costs that wer e handw ritten. The
rec ord does not indicate whether the handwr iting wa s added be fore or af ter the a ppellant sig ned the judg ment. There was no itemization or expl anation of the costs. The c lerk’s r ecor d includes a “ Bill of Costs” that was issued six day s after judgme nt was imposed. This bill itemiz ed the c ourt costs and include d fee s of $3,718.50 for the attorney pro tem and $440.00 for

investiga tive costs of the prose cutor. This docume nt was not provided to the appellant or

her c ounsel. 2 

## When the appellant c omplained on appe al about the imposition of these fe es, the Court of Appea ls held she had not pre serve d the issue for a ppeal be cause she had not made a “timely reque st, objection, or motion” in the trial court. We gr anted r eview to de termine if a n objection 3



## was re quired to pre serve err or conc erning the impositi on of the c osts of the specia l prosecutor ’s fee s. The g ener al rule is that a pa rty must first complain in the trial court in orde r to prese rve a

S e e T E X . P E N A L C O D E § 3 6
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.

## 3

complaint for a

ppellate r eview. This rule protec ts important policy interests. 4 5 

## But its opera tion may

depend on the party ’s having an opportunity to comply

with the rule. I n Burt v. State, we r ece ntly rea ffirme d that: The re quirement that a

n objection be r aised in the trial c ourt assumes that the appellant ha d the opportunity to raise it there
. See H

ardeman v . State , 1 S.W .3d 689, 690 (Tex. Crim. App. 1999) (appe llant did not allege that he did not have a n opportunity

to object when se ntence was pronounc ed and so f ailed to pre serve err or); Issa v. State , 826 S.W .2d 159, 161 (Tex. Crim. App. 1992) (per mitti ng appellant to ra ise his objection for the f irst time in a motion for new trial since “appe llant had no opportunity to object to the trial cour t’s action until after

that action wa s taken.” ). Thus, whe n an appe llate cour t finds that error

has not bee n prese rved, it will often re cite the times at whic h the appe llant had the opportunity to object, but failed to do so. See, e .g., Idowu v. State , 73 S.W .3d at 920 (“ Neither appellant nor

his counsel objecte d at the punishment hea ring ....”); see also Burt v. State , 2011 Tex. App. L EXI S 5868, 2011 W L 3211249, at *10. An appe llant fails to preser ve er ror by failing to object when he had the oppor tunity ; conver sely , if an appellant ne ver ha d the opportunity to object, then he ha s not forfe ited err or. See Ricke ls v. State , 108 S.W .3d 900, 902 (Tex. Crim. App. 2003) (appe llant did not forf eit his objection since “the [t rial] court modified the ter ms of Rickels’s probation without a hea

ring , and Rickels had no oppor tunity to object.”) ; Cobb v. State , 95 S.W .3d 664, 666 (Tex. App.—Houston [1s t Dist.] 2002, no pet.) (appe llant did not forfeit cha lleng e to lang uag e in written judg ment “bec ause the judgme nt was not prepa

red until afte r the e nd of the he aring , [t here fore ] appellant could not have c omplained at the he aring about any

alleg ed def

ect in the judgme nt.”). 6 

## I n this case, the Court of

Appea ls held that the appe llant should have objec ted in the trial court, but it did not mention whether she ha d an opportunity to do so. The cour

t sentence d the appellant on Oc tober 20, 2011. The sentenc e wa s for two y ear s in jail, a $10,000 fine, and c ourt

T E X . R U L E A P P . P R O C . 3 3
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costs of $4,562.50. Ther e wa s no indication of what the c ourt costs wer e for . On Octobe r 26, a Bill of Costs was g ener ated in the c lerk’s f ile. This showed that $3,718.50 of the c osts assessed
wer e for the cour t-appointed a

ttorney (the prose cutor pro te m was the only court-a ppointed attorney in this case) a

nd that $440 of the fe es we re f or the c ourt-appointed inve stiga tor. No notice of this document wa s g iven to the appe llant or her a ttorney and no fur

ther proc eeding s
wer e held. Conseque ntly , the appe llant was not g iven an oppor tunity to object to the impositi on of these c osts. Si nce she was not g iven the opportunity , the abse nce of an objec tion is not fata l to her a ppeal. The State make s two arg uments, the first of whic h is that the appellant should have raised the issue in a motion for new trial. Even if the appellant could have r aised the issue in such a motion (an issue we ne ed not dec ide today ), she wa s not require d to. A motion for new tria l is require d to preser

ve er ror only when it is nece ssary

to adduce fac ts not in t he re cord. I n this case, 7 

## the appe llant’s complaint was one of law a nd not fac ts. Consequently , she wa s not require d to file such a

motion in order to prese rve this complaint. Fur ther, we decline to c rea te such a require ment. I n this case, the B ill of Cost s was filed six day s after

the appe llant’s sentenc e wa s imposed in open court. This left the a ppellant with 24 day s to retrieve the document f rom the cle rk’s off

ice ( though the re w as no notice it had be en
cre ated) and submit an objection, motion, or other r equest for relief . Arg uably , in this case, the 8 

## appellant ha d enoug h time to submi t such a motion. Howeve r, we decline to a dopt a rule tha t

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i l e a m o t i o n f

o r n e w t r i a l “ n o l a t e r t h a n t h i r t y d a y s a f t e r t h e 8 d a t e w h e n t h e t r i a l c o u r t i m p o s e s o r s u s p e n d s s e n t e n c e i n o p e n c o u r t ” )
.

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would allow a judg e to de f acto a lter the statutory

time frame for motions for ne w trial. The State a

nd the Court of Appe als relied on Mende z v. State for the pr oposition t hat the

9 

## appellant wa ived er

ror. I n Mende

z we he ld that Texas Rul e of A ppellate Proc edure 33.1 (re quiring an objec tion in the trial court) a pplies to all complaints ex cept those tha t involve rules that are “wa ivable only ” or “ sy stematic” ( or “a bsolute”) r equire ments. The State a nd the Court 1 0 

## of Appe als arg ue that since this error doe s not fit in either of those c ateg ories, a timely objection in the trial court wa s require d. Howeve r, Mende z is disti ng uishable bec ause it took place within the context of an ac tive trial, during which an a ppellant would be g iven an oppor tunity to object. I t is not on poi nt and does not control in this instance. We hold that the appellant may not be fa ulted for f

ailing to objec t when she w as not g iven the opportunity . Since the fe es we re not imposed in open c ourt and she w as not requir ed to file a motion for new tria l, she has not forf eited the c omplaint on appeal. The judg ment of the Court of Appe als is reve rsed, a nd the ca se is rema

nded to that Court for a naly sis consistent with thi s opinion.

Deliver ed: J uly

3, 2013. Publis h.

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