Brian CASTELLO, Appellant v. The STATE of Texas, Appellee

NO. 01-16-00742-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued June 5, 2018 Discretionary Review Refused September 26, 2018

Jani Maselli Wood, 1201 Franklin St, 13th Floor, Houston, TX 77002, for Appellant.

Kim Ogg, District Attorney, Katie Davis, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002, for Appellee.

Panel consists of Justices Jennings, Massengale, and Caughey.

Jennifer Caughey, Justice

After admitting that he strangled his wife, Brian Castello pleaded guilty to murder, *615a first-degree felony. TEX. PENAL CODE § 19.02(c). The trial court sentenced Castello to 55-years' confinement. Castello appeals, arguing that (1) the trial court erred by sentencing him without (a) a drug and alcohol evaluation, and (b) a psychological evaluation; or, in the alternative; (2) his trial counsel was ineffective for failing to preserve this issue for appellate review; and (3) the fees imposed on him for summoning witnesses and mileage violated his confrontation rights and his right to compulsory process. Because we conclude that Castello forfeited his first claim, his counsel was not ineffective, and he has not shown that any witness fees in this case were unconstitutional as applied to him, we affirm.

**I. Background**

Castello pleaded guilty to the murder of his wife, Damaris Castello. He had no agreed recommendation as to punishment, and the State prepared a presentence investigation (PSI) report.

Before sentencing Castello, the trial court held a sentencing hearing.

**A. Sentencing Testimony**

At the sentencing hearing, the State called four witnesses.

First, Detective T.R. Ferguson testified. He stated that he is employed in the homicide division of the Houston Police Department and he was also employed there on November 9, 2014. He remembered receiving a call on that date regarding a homicide at an apartment. Upon arriving at the scene, Detective Ferguson noticed a strong odor that he described as "the odor of death." After receiving consent to enter, Detective Ferguson went inside the apartment, where he found the deceased victim, wrapped in a comforter, in the closet. The State submitted into evidence photographs of the scene and the deceased.

Detective Ferguson testified that he identified Castello as a suspect and interviewed him. Castello told him that the police would "find out what happened sooner or later," and he fell asleep in the interview room. Two days after the incident, Detective Ferguson interviewed Castello again. At that interview, Castello confessed to murdering Damaris. According to Detective Ferguson, Castello said he "always knew he was going to kill someone but that he didn't know when."

The victim's mother, Silvia Espinoza, and her oldest daughter, Maria Escobar, also testified. They emphasized the effect Damaris's death had on them and how much they missed her.

Damaris's brother, Enoc Gonzales, testified as well. He stated that in November 2014, he tried to call Damaris but could not reach her. So, he (along with his brother, cousin, and uncle) went to her apartment, which she shared with Castello. Upon arriving, he asked Castello where Damaris was. Castello responded that he did not know and that he and Damaris had had an argument. Enoc testified that he knew Castello was lying because Damaris would never leave her children behind, but they were there without her.

According to Enoc, he, his brother, his cousin, and his uncle then entered the apartment. They smelled a distinct, foul odor. Enoc's uncle searched for Damaris in the bedroom, then in the closet, where he found Damaris's body wrapped in a comforter and duct tape. Enoc noted that, when they found the body, Damaris's and Castello's infant daughter was in the living room of the apartment in her walker. Enoc also testified regarding the effect Damaris's death had on him and his family.

**B. PSI Report**

At the sentencing hearing, the State submitted a PSI report, and the trial court *616took judicial notice of it. Castello did not object to the report or its contents.

The PSI report included a statement detailing information regarding the murder, Castello's prior offenses, and his social history, including but not limited to information regarding his health and drug and alcohol use. It stated that Castello "believes he is in need of alcohol and drug substance abuse treatment." Moreover, it included Castello's Harris County Special Needs Response Form, in which Castello asserted that, on September 30, 2014, he was diagnosed with schizoaffective disorder and prescribed psychotropic medications. The PSI report also contained numerous letters written by Damaris's family and friends, as well as letters from Castello's mother, grandmother, siblings, and his former employer. It included a letter from Castello himself in which he expressed remorse for the murder.

Notably, the PSI report included a Psychological Evaluation Report completed by clinical psychologists Jerome B. Brown and Sheila M. Bailey.1 The evaluation included Castello's self-reported assertion that he "began to hear voices about a 'day before' his offense" and, on the day of the offense, he heard a voice telling him that he should kill Damaris. The evaluation also reported that Castello said that he consumed about eight or nine beers on the night of the offense. Castello denied receiving professional counseling services or psychoactive medication before his incarceration.

The report found, however, that "[t]he validity scales administered suggested an exaggeration of symptoms" and that there appeared "to be an effort to claim highly unusual attitudes and behaviors and to project severe psychopathology." Thus, the profiles obtained "should be interpreted with caution." Further, the evaluators found that "[e]stimates of intellectual ability place Mr. Castello in the average range." The "[m]ental status examination revealed Mr. Castello to be alert, well-oriented, and able to communicate his ideas without difficulty."

The report concluded that "[a]lthough there is a possibility that mental illness played a part in the homicide, currently there is only his self-report." It stated that Castello "mentioned no symptoms to the investigating police officers, has no psychiatric history, and did not describe the path of development over time usually seen in severe mental disorders." Accordingly, Dr. Brown and Dr. Bailey concluded that there was insufficient evidence to mount an insanity defense at that time.

**C. Sentencing and Post-Sentencing Costs**

At the close of argument, the trial judge sentenced Castello to 55-years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Four days after the entry of judgment, the trial court entered a Criminal Bill of Costs totaling $359, which included a $120 fee for summoning witnesses and mileage. Castello appealed.

**II. Discussion**

**A. Drug and Alcohol and Psychological Evaluations Requirement**

In his first issue, Castello argues that the trial court erred in failing to require the PSI report to include a drug and alcohol evaluation and a psychological evaluation. Castello forfeited this argument.

*617**1. Statutes**

Castello premises his argument on Article 42.12 of the Texas Code of Criminal Procedure, which set forth statutory guidance regarding the imposition of community supervision and addressed PSI reports.2 With regard to evaluations for alcohol or drug abuse, section 9(h) of article 42.12 provided that:

> On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense ... the judge shall direct a supervision officer ... or a person, program, or other agency approved by the Texas Commission on Alcohol and Drug Abuse, to conduct an evaluation to determine the appropriateness of, and a course of conduct necessary for, alcohol or drug rehabilitation for a defendant and to report that evaluation to the judge.

TEX. CODE CRIM. PROC . art. 42.12, § 9(h).3

Likewise, as to mental health evaluations, section 9(i) of article 42.12 provided that:

> [a] presentence investigation conducted on any defendant convicted of a felony offense who appears to the judge through its own observation or on suggestion of a party to have a mental impairment shall include a psychological evaluation which determines, at a minimum, the defendant's IQ and adaptive behavior score. The results of the evaluation shall be included in the report to the judge....

TEX. CODE CRIM. PROC . art. 42.12, § 9(i).

**2. Analysis**

Castello forfeited his first argument by failing to raise it below. It is undisputed that Castello neither objected to the PSI report nor requested the inclusion of a psychological or drug and alcohol abuse evaluation in the report.

On appeal, Castello argues that he could not have forfeited this argument. In so arguing, he urges us to rely on a 1991 San Antonio Court of Appeals case, *Garrett v. State* , 818 S.W.2d 227 (Tex. App.-San Antonio 1991, no pet.).

Binding precedent squarely rejects his contention. It is well-settled in both our Court and our sister Court that mental health and alcohol and drug evaluations in the PSI report may be forfeited. *See, e.g.* , *Cain v. State* , 525 S.W.3d 728, 730-31 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd) (confirming "that a defendant can waive the right to complain about psychological and substance abuse evaluations being left out of his PSI"); *Morris v. State* , 496 S.W.3d 833, 837-38 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (disagreeing with *Garrett* and holding that "complaints concerning the absence of a PSI report or challenges to the adequacy of a psychological evaluation are subject to procedural waiver"); *Welch v. State* , 335 S.W.3d 376, 382 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd) (similar); *Nguyen v. State* , 222 S.W.3d 537, 541 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd) (concluding defendant waived right to complain about omission of psychological evaluation part of PSI report, noting "[t]he right to a psychological report can be forfeited, just *618as the right to a presentence investigation generally").

Our Court has made clear that "[t]o preserve error, a party must specifically object to the omission of" the evaluation from the PSI report. *Morris* , 496 S.W.3d at 837. Because there is no dispute that Castello failed to object here, he forfeited this claim.

We overrule Castello's first issue.

**B. Ineffective Assistance of Counsel**

Next, Castello asserts that if he forfeited his first issue by failing to preserve error, his counsel was ineffective on this basis, requiring reversal of his sentence and remand to the trial court for a new sentencing hearing. We again disagree.

**1. Standard of Review and Applicable Law**

We evaluate claims of ineffective assistance of counsel under the two-prong test from *Strickland v. Washington* , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). *See**Hernandez v. State* , 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999) ; *Goody v. State* , 433 S.W.3d 74, 78 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd). To show ineffective assistance, an appellant must establish that (1) counsel's performance was deficient such that it fell below an objective standard of reasonableness, and (2) the deficiency prejudiced defendant-that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. *See**Ex parte Bryant* , 448 S.W.3d 29, 39-40 (Tex. Crim. App. 2014) ; *Hernandez* , 988 S.W.2d at 770 n.3 ; *Goody* , 433 S.W.3d at 78. A reasonable probability is a probability sufficient to undermine confidence in the outcome; counsel's errors must be so serious as to deprive appellant of a fair trial. *Smith v. State* , 286 S.W.3d 333, 340 (Tex. Crim. App. 2009).

"[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." *Goodspeed v. State* , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting *Rylander v. State* , 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) ). Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." *Id.* (quoting *Garcia v. State* , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), *cert. denied* , 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003) ).

Furthermore, we indulge a strong presumption that counsel's conduct fell within the wide range of reasonable assistance. *Jackson v. State* , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To defeat this presumption, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." *Thompson v. State* , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable." *Mallett v. State* , 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (citing *Thompson* , 9 S.W.3d at 813 ). "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." *Id.* (citing *Thompson* , 9 S.W.3d at 813-14 ).

**2. Analysis**

Castello argues that his counsel was ineffective because he failed to request psychological and substance abuse evaluations or to object to the alleged lack of those evaluations. We disagree.

*619As an initial matter, the record shows that Castello's counsel in fact moved the court to appoint Dr. Brown as a defense mental health expert and included his evaluation in the PSI report. The record also reflects that the PSI report included information regarding Castello's drug and alcohol use.

Beyond what appears in the PSI report, the record is silent as to Castello's trial counsel's actions in this regard. Castello did not file a motion for new trial. Thus, counsel had no opportunity to explain why he did not request additional evaluations. Castello also offered no evidence as to what information could have been gleaned from such evaluations (beyond the material already in the PSI) if they had been requested.

On this record, we cannot conclude that trial counsel's failure to object or request additional evaluations was outside the range of professionally competent assistance. *See**Cain* , 525 S.W.3d at 732 (record was insufficient to establish trial counsel's failure to object to absence of psychological and substance abuse evaluations was outside range of professionally competent assistance, despite statements by appellant and his mother in PSI regarding appellant's drug use and alleged need for mental health treatment). Counsel's actions were not "so outrageous that no competent attorney would have engaged in [them]." *Goodspeed* , 187 S.W.3d at 392.

Moreover, even if we were to assume that counsel's performance was deficient under *Strickland* 's first prong, Castello has not shown prejudice as the second prong of *Strickland* requires. First, the PSI report included a psychological evaluation that detailed Castello's psychological history and his reported medications. Notably, the clinical psychologists concluded that the only evidence of mental impairment was Castello's own self-report. They further cautioned that Castello appeared to be exaggerating his symptoms. Second, the trial court also had evidence before it about Castello's drug and alcohol abuse. Specifically, the PSI included Castello's self-report regarding his history of drug and alcohol use. And importantly, Castello presented no evidence as to what any additional evaluations might have shown.

Because the trial court had before it psychological and drug and alcohol abuse information to use in formulating Castello's sentence, and because Castello fails to show what additional evaluations might have offered, we cannot conclude that but for his counsel's failure to request additional evaluations, there is a reasonable probability that the result would have been different.

We overrule Castello's second issue.

**C. Imposition of Summoning Witness and Mileage Costs**

Finally, Castello argues that the Code of Criminal Procedure's witness and mileage fees are unconstitutional as applied to him. He argues that they violate his constitutional (1) right to compulsory process and (2) right to confrontation.

The question before us is not whether these statutorily required fees are good policy. Instead, the question is whether, as applied to Castello, they violate constitutional rights. Our Court and our sister Court have held these fees constitutional in the face of almost identical arguments, and Castello offers us no basis to reach a different conclusion in this case. *See**London v. State* , 526 S.W.3d 596, 598-604 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) ; *see also**Merrit v. State* , 529 S.W.3d 549, 557-59 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd).

**1. Relevant Law***620*Constitutional Provisions.* Both the Texas and United States Constitutions protect the right of an accused, in a criminal prosecution, to have compulsory process for obtaining witnesses in his favor and to be confronted with the witnesses against him. U.S. CONST . Amend. VI ; TEX. CONST . art. I § 10.

The Compulsory Process Clause guarantees the government's assistance in compelling the attendance at trial of witnesses "in [the defendant's] favor." *Id.* ; *see also**London* , 526 S.W.3d at 599. Importantly, however, the right is limited to compulsory process for obtaining witnesses "whose testimony would be both material and favorable to the defense." *London* , 526 S.W.3d at 599 (quoting *Coleman v. State* , 966 S.W.2d 525, 528 (Tex. Crim. App. 1998) ). Thus, the defendant must make a preliminary showing of the "materiality and favorableness" of the witnesses he seeks. *Id.* at 599-600.

The Confrontation Clause "provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." *Id.* at 600 (quoting *Pennsylvania v. Ritchie* , 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987) ).

*Texas Code of Criminal Procedure.* After a defendant is convicted of a felony or misdemeanor, Article 102.011 of the Texas Code of Criminal Procedure mandates the assessment of a fee for summoning witnesses and for mileage required for an officer to perform and to return from performing this service. TEX. CODE CRIM. PROC . art. 102.011(a)(3), (b). Specifically, article 102.011 provides, in relevant part:

> (a) A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer: ...

> (3) $5 for summoning a witness ...

> (b) In addition ... a defendant required to pay fees under this article shall also pay 29 cents per mile for mileage required of an officer to perform a service listed in this subsection and to return from performing that service.... This subsection applies to ...

> (3) traveling to execute criminal process, to summon or attach a witness, and to execute process not otherwise described by this article.

TEX. CODE CRIM. PROC . art. 102.011(a)(3), (b).

**2. Analysis**

Our Court has already rejected the precise arguments raised by Castello, and Castello provides us no basis to come to a different conclusion in this case. *See**London* , 526 S.W.3d at 598-604.

Castello asserts that the Code of Criminal Procedure's subpoena fees are unconstitutional as applied to him because he is indigent. In so arguing, he relies on the Sixth Amendment and *Gideon v. Wainwright* , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) for the proposition that "a man too poor to hire a lawyer should not be left at the mercy of the power of the State." He asserts generally that "[a] defendant who has to pay for each subpoena on the 'back end' is denied the right to subpoena and [sic] all witnesses he can find." He further argues that "[w]hether or not [he] would have subpoenaed other witnesses, the harm is that an indigent person should not be required to pay to confront his accuser or his right to compulsory process." Finally, he argues that he had constructive notice of the fees because the requirement appears in the statute.

*London* forecloses these arguments. There, an appellant challenged the postjudgment imposition of fees for summoning witnesses, raising the arguments advanced *621by Castello here. *London* , 526 S.W.3d at 599-601. Our Court concluded that London failed to argue or provide evidence that he was deprived of his rights because of the $5 witness fee imposed after the conclusion of trial, and London provided no explanation of how his indigence itself could constitute the relevant harm when he did not argue that the $5 witness fee caused him to become indigent. *Id.* at 601-02. Thus, he had "not met his burden of showing that his constructive notice of the contingent possibility that in the event of his conviction he would be assessed a fee of $5 per witness had the actual [e]ffect, as applied to him in [that] case, of denying him compulsory process or confrontation of the witnesses against him." *Id.* at 602.

Similarly, here, Castello has not shown any constitutional violation as applied to him. With regard to his right to compulsory process, Castello has not identified, either at trial or on appeal, a single material and favorable witness he wished to present. *See**id.* at 601-02. He did not attempt to issue any subpoenas or compel process for any potential witnesses he did not call. Instead, he asserts on appeal that his "constructive notice" of the $5 witness fee precluded him from presenting an adequate defense. But as we explained in *London* , this argument disregards precedent that to exercise the right to compulsory process, the defendant bears the burden to "make a plausible showing to the trial court, by sworn evidence or agreed facts, that the witness' testimony would be both material and favorable to the defense." *Id.* at 600 (quoting *Coleman* , 966 S.W.2d at 528 ); *see also**Macias v. State* , 539 S.W.3d 410, 421-23 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) (following *London* ). "Without a showing that material, favorable witnesses were available to be called by [Castello], we cannot conclude that, as applied in this case, constructive notice of the $5 witness fee operated to deny his right to 'have compulsory process for obtaining witnesses in his favor.' " *London* , 526 S.W.3d at 600 (quoting U.S. CONST . Amend. VI ; TEX. CONST . art. I § 10 ).

Castello also fails to show a violation of his Confrontation Clause rights. It bears emphasizing that the fees at issue were assessed (as the statute requires) only *after* he pleaded guilty. Because these fees are "assessed on conviction," Castello's opportunity to confront or cross-examine the State's witnesses was not contingent on his postjudgment ability to pay the witness fees. *Id.* In other words, there was no requirement that he pay fees before he could confront witnesses. Instead, only later, after he was convicted, did the statutory fees become due. Therefore, even if he failed to pay the fees, this failure could not have inhibited his prior ability to confront witnesses at trial. Castello makes a general assertion that requiring him to pay the costs for summoning witnesses is unfair and unconstitutional, but he has not established how, as applied in this case, constructive notice of the $5 witness fee operated to prevent him from exercising his rights to "be confronted" with or by "the witnesses against him." *See**id.* at 600-01.

As in *London* , Castello asserts that the constitutional harm to him is apparent from his indigence. "Yet he provides no argument or evidence that he was deprived of his constitutional rights because of the prospect of being assessed a $5 witness fee after the conclusion of trial, if he were convicted." *Id.* at 601. He likewise offers no explanation of how his indigence itself could constitute the relevant harm when he does not suggest that the $5 witness fee caused him to become indigent. *Id.*

Castello has failed to explain why his case is different from *London* . He has not *622established that the statute deprived him of his rights to compulsory process and confrontation of adverse witnesses such that it is unconstitutional as it was applied to him. *See id.; see, e.g.* , *Macias,*539 S.W.3d at 421-24 (witness fee did not deny appellant his right to compulsory process where appellant did not show "material and favorable witnesses" not subpoenaed because of cost; case was "indistinguishable" from *London* ); *see also**Eugene v. State* , 528 S.W.3d 245, 250-51 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (rejecting constitutional challenge to constitutionality of fees for summoning witnesses and mileage); *Merrit* , 529 S.W.3d at 557-59 (same).

We overrule Castello's third issue.

**III. Conclusion**

We affirm the judgment of the trial court.

1

Before Castello pleaded guilty, Castello's counsel moved the court to appoint Dr. Brown as a defense mental health expert.

2

This article was repealed by the Texas Legislature, effective September 1, 2017, and recodified as its own chapter, chapter 42A, of the Texas Code of Criminal Procedure. The substantive content referenced herein survives. *See* Tex. Code Crim. Proc . arts. 42A.253(a)(6), 42A.257(a).

3

Such an evaluation shall be made "after arrest and before conviction, if requested by the defendant" or "after conviction and before sentencing, if the judge assesses punishment in the case." *See* Tex. Code Crim. Proc . art. 42A.257(a).

Jennings, J., concurring.

**CONCURRING OPINION**

Terry Jennings, Justice

I concur in the judgment of the Court and write separately to explain why although I would hold that appellant, Brian Castello, an indigent criminal defendant, has met his burden of establishing that Texas Code of Criminal Procedure article 102.011(a)(3) is unconstitutional as applied to him because it violates his right to confrontation, I agree that under this Court's precedent, we must, at this time, overrule his challenge. *See**London v. State* , 526 S.W.3d 596 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd).1

Appellant, without an agreed recommendation from the State, pleaded guilty to the felony offense of murder.2 After he pleaded true to the allegation in an enhancement paragraph that he had been previously convicted of a felony offense, the trial court assessed his punishment at confinement for fifty-five years. In his third issue, appellant contends that the "Summoning Witness/Mileage Fee"3 assessed against him, an indigent criminal defendant, by the trial court is unconstitutional as applied to him.

**Background**

A Harris County Grand Jury issued a true bill of indictment, accusing appellant of committing the felony offense of murder. The trial court, upon finding him indigent, appointed counsel to represent him at trial.4

*623Prior to trial, the State filed with the trial court its Application for Subpoena by State for Witness in the District Court, requesting that twenty-three witnesses be summoned by a peace officer to testify at trial.5 The trial court then issued twenty-three subpoenas for the State's witnesses, and a peace officer summoned those twenty-three witnesses.6 The peace officer filed his returns of service in the trial court.7

Subsequently, appellant pleaded guilty to the felony offense of murder. After his plea, but prior to his punishment hearing, the State filed with the trial court another Application for Subpoena by State for Witness in the District Court, requesting an additional witness be summoned by a peace officer to appear and provide appellant's "jail print cards." The trial court issued the subpoena, a peace officer summoned the witness, and he filed his return of service in the trial court.

Following a punishment hearing, the trial court sentenced appellant to confinement for fifty-five years and ordered him to pay $359 in court costs, which included a $120 charge for "[s]ummoning witness/[m]ileage."8

**Standard of Review**

We review the constitutionality of a criminal statute de novo as a question of law. *Ex parte Lo* , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ; *Maloney v. State* , 294 S.W.3d 613, 626 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). When presented with a challenge to the constitutionality of a statute, we presume that the statute is valid and the legislature has not acted unreasonably or arbitrarily. *Rodriguez v. State* , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) ; *Maloney* , 294 S.W.3d at 626. The party challenging the statute has the burden to establish its unconstitutionality. *Rodriguez* , 93 S.W.3d at 69 ; *Maloney* , 294 S.W.3d at 626. We must uphold the statute if we can apply a reasonable construction that will render it constitutional. *Ely v. State* , 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979) ; *see also**Maloney* , 294 S.W.3d at 626 (if statute can be interpreted two different ways, one of which sustains its validity, we apply interpretation sustaining its validity).

**Constitutionality of "Summoning Witness/Mileage Fee"**

In his third issue, appellant argues that the Summoning Witness/Mileage Fee assessed against him by the trial court violates his constitutional rights to compulsory process and confrontation because he is an indigent criminal defendant. *See* U.S. CONST. Amend. VI ; TEX. CONST. art. I, § 10 ; *see also* TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 2005).

"A litigant raising only an 'as applied' challenge concedes the general constitutionality of the statute, but asserts that the statute is unconstitutional as applied to his particular facts and circumstances." *State ex rel. Lykos v. Fine* , 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) ; *see also**Ploeger v. State* , 189 S.W.3d 799, 812 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Because a statute may be valid as applied to one set of facts and invalid as applied to another, a defendant must show that the challenged *624statute was unconstitutionally applied to him. *Lykos* , 330 S.W.3d at 910. It is not sufficient to show that a statute "*may* " operate unconstitutionally against the challenger or someone in a similar position in another case. *Id.* at 912 ; *see also**Vuong v. State* , 830 S.W.2d 929, 941 (Tex. Crim. App. 1992) ("That the statute may be, in its operation, unconstitutional as to others is not sufficient."). Courts must evaluate the statute as it has been applied in practice against the particular challenger. *Lykos* , 330 S.W.3d at 912.

Texas Code of Criminal Procedure article 102.011, titled "Fees for Services of Peace Officers," requires a defendant convicted of a felony to "pay ... for services performed in [his] case by a peace officer." TEX. CODE CRIM. PROC. ANN. art. 102.011(a) (Vernon 2018). Relevant to the instant case, subsection (a)(3) of article 102.011 requires a criminal defendant to pay $5 for each witness that is summoned by a peace officer, regardless of whether that witness is summoned on behalf of the State or on behalf of the defendant. *Id.* art. 102.011(a)(3). Here, the State issued subpoenas for twenty-four witnesses to either testify or produce documents on its behalf at trial, and upon appellant's conviction, the trial court ordered him to pay $120 in court costs for "[s]ummoning witness/[m]ileage."9 Thus, the trial court charged appellant $120 or, more specifically, $5 for each of the twenty-four witnesses that the State summoned to testify or produce documents against him at trial. *See id.*

Appellant argues that the Summoning Witness/Mileage Fee assessed against him by the trial court is unconstitutional because he, despite his indigence, must, for initially exercising his constitutional right to confrontation, bear the costs for the State's summoning of witnesses against him. In other words, appellant asserts that although "[t]he State ha[d] an absolute right to subpoena ... witnesses in order to present [its] case" against him, it is the requirement that he "pay for th[o]se [witnesses to be] subpoena[ed] [that] is unconstitutional."

The Sixth Amendment to the United States Constitution provides:

> In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; *to be confronted with the witnesses against him* ; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. CONST. Amend. VI (emphasis added); *see also* TEX. CONST. art. I, § 10 ("In all criminal prosecutions the accused ... *shall be confronted by the witnesses against him* ...." (emphasis added) ); TEX. CODE CRIM. PROC. ANN. art. 1.05 ("In all criminal prosecutions the accused ... *shall be confronted with the witnesses against him* ...." (emphasis added) ).

As the United States Supreme Court has explained, the Confrontation Clause contained in the Sixth Amendment provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination.

*625*Pennsylvania v. Ritchie* , 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987) ; *see also**Crawford v. Washington* , 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004) (accused has right "to be confronted with the witnesses against him" (internal quotations omitted) ); *Coy v. Iowa* , 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988) (Confrontation Clause "guarantees [a] defendant a face-to-face meeting with witnesses appearing before the trier of fact"). "[I]t is this literal right to 'confront' [a] witness at the time of trial that forms the core of the values furthered by the Confrontation Clause[.]" *California v. Green* , 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (1970).

In *Pointer v. Texas* , the Supreme Court held that the Sixth Amendment's guarantee of a criminal defendant's right "to be confronted with the witnesses against him" is applicable to the states by virtue of the Fourteenth Amendment. 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). In doing so, the Court explained that "the Sixth Amendment's right of an accused to confront the witnesses against him is ... a *fundamental* right," as important as a criminal defendant's "Sixth Amendment[ ] right to the assistance of counsel" and his "Fifth Amendment[ ] guarantee against self-incrimination." *Id.* at 403, 85 S.Ct. at 1067-68 (emphasis added). Further, the Court emphasized that the fact that the right is found in the Bill of Rights "reflects [a] belief [by] the Framers [of the Constitution] ... that confrontation [i]s a *fundamental right essential to a fair trial in a criminal prosecution.* " *Id.* at 404, 85 S.Ct. at 1068 (emphasis added). In fact, there have been "few subjects, perhaps, upon which th[e] [Supreme] Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an *essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.* " *Id.* at 405, 85 S.Ct. 1068 (emphasis added); *see also**Alford v. United States* , 282 U.S. 687, 692, 51 S.Ct. 218, 219-20, 75 L.Ed. 624 (1931) (right of cross-examination is "a substantial right and ... essential to a fair trial"). Notably, the right of confrontation is necessary to "expos[e] falsehood[s] and bring[ ] out the truth in the trial of a criminal case." *Pointer* , 380 U.S. at 404, 85 S.Ct. at 1068.

The right to confrontation has a long history in this country as one of the rights that has been heavily guarded due to its importance. *See**Chambers v. Mississippi* , 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) ("The right[ ] to confront and cross-examine witnesses ... ha[s] long been recognized as essential to due process."). For instance, in 1899, the Supreme Court described the right of a criminal defendant to "be confronted with the witnesses against him" as "[o]ne of the *fundamental guaranties of life and liberty.* " *Kirby v. State* , 174 U.S. 47, 55, 19 S.Ct. 574, 577, 43 L.Ed. 890 (1899) (emphasis added). And the Court noted that because the right is "so essential" it was provided for in the Constitution to ensure that it would be protected from any legislative or judicial action which may seek to degrade it. *Id.* at 56, 19 S.Ct. at 577. Further, the Court has emphasized that a criminal defendant's "right to his day in court" encompasses his "right to examine the witnesses against him," a "basic [right] in our system of jurisprudence." *In re Oliver* , 333 U.S. 257, 273, 68 S.Ct. 499, 507-08, 92 L.Ed. 682 (1948). And the Supreme Court has explained that courts must be willing to act "zealous[ly]" to protect the right of confrontation from "erosion." *Greene v. McElroy* , 360 U.S. 474, 496-97, 79 S.Ct. 1400, 1413-14, 3 L.Ed.2d 1377 (1959) ; *see also**Barber v. Page* , 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968) ("The right of confrontation *626may not be dispensed with so lightly."). In fact, when the right to confrontation is denied or significantly diminished, "the ultimate integrity of the fact-finding process" is called into question. *Chambers* , 410 U.S. at 295, 93 S.Ct. at 1046 (internal quotations omitted).

The United States Supreme Court is not alone in recognizing the significance of a criminal defendant's right to confrontation, as the Texas Court of Criminal Appeals and the Texas Supreme Court have also noted its importance. *See**Shelby v. State* , 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) ("The Sixth Amendment's right of confrontation is a *fundamental right* ...." (emphasis added) ); *Ex parte Johnson* , 654 S.W.2d 415, 421 (Tex. 1983) ("The right to be present at trial and confront witnesses is *fundamental and essential to a fair trial.* " (emphasis added) ); *see also**In re R.S.* , No. 01-98-00939-CV, 1999 WL 417347, at *3 (Tex. App.-Houston [1st Dist.] June 24, 1999, no pet.) (not designated for publication) (same). In fact, the court of criminal appeals has characterized "[t]he right to confront and cross-examine witnesses" as a right that is "essential to due process and a fair trial." *Coulter v. State* , 494 S.W.2d 876, 881 (Tex. Crim. App. 1973).

Notably, appellant's argument in this case presupposes an understanding of the historical roots and widely acknowledged importance of a criminal defendant's right to confrontation.

Here, a grand jury indicted appellant for the felony offense of murder. After finding that appellant was indigent, the trial court appointed counsel to represent him at trial. *See* TEX. CODE CRIM. PROC. ANN. art. 1.051(c) (Vernon Supp. 2017) (indigent defendant entitled to appointed counsel); *see also id.* art. 26.04 (Vernon Supp. 2017) (titled "Procedures for Appointing Counsel"). In determining appellant's indigence, the trial court necessarily considered his income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of his dependents, and any spousal income that may have been available to appellant. *See id.* art. 26.04(m); *McFatridge v. State* , 309 S.W.3d 1, 6 (Tex. Crim. App. 2010). The trial court could not have found appellant indigent without appellant making a prima facie showing of indigence. *See**Whitehead v. State* , 130 S.W.3d 866, 874 (Tex. Crim. App. 2004). And once the trial court determined that appellant was indigent, he was presumed to remain indigent for the remainder of the proceedings. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) ; *see also**London v. State* , 490 S.W.3d 503, 509 (Tex. Crim. App. 2016) (explaining defendant declared indigent prior to pleading "presumed to remain indigent for the remainder of the proceedings in the case unless a material change in [his] financial circumstances occur[red]" (internal quotations omitted) ).

After the trial court found appellant indigent, the State determined that it, in order to present and prove its case against him, needed to summon twenty-four witnesses to testify and produce documents at trial. Accordingly, the State notified both the trial court and appellant of its decision to subpoena these twenty-four witnesses, and it instructed a peace officer to summon them. Because of the State's independent decision, appellant became responsible for the cost of summoning the State's witnesses against him.

What makes article 102.011(a)(3) unconstitutional as applied to appellant is that it required him, an indigent criminal defendant, to pay for the witnesses that the State subpoenaed to testify against him. In other words, although appellant had a fundamental constitutional right to physically confront the witnesses who were to testify *627and produce documents against him, the only way he was able to secure that right was by bearing the State's costs for it. In effect, he is being penalized for initially setting his case for trial and having a punishment hearing. Given appellant's inability to pay such costs, article 102.011(a)(2) is unconstitutional as applied to him.10

Importantly, in this country's federal system, a criminal defendant, whether indigent or not, is not required to bear the cost of the United States government's decision to summon a witness to testify at trial against that defendant. *See*28 U.S.C. § 1825 (titled "Payment of fees"). Instead, the United States government is required to pay its own fees for the witnesses that it decides must appear at trial and testify. Specifically, "[i]n any case in which the United States or an officer or agency of the United States is a party, the United States marshal for the district *shall pay all fees of witnesses* on the certificate of the United States attorney or assistant United States attorney...." 28 U.S.C. § 1825(a) (emphasis added). A criminal prosecution by the United States government constitutes a case in which the United States is a party, and thus the United States government must "pay all fees of [the] witnesses" testifying on its behalf against a criminal defendant. *See**U.S. Marshals Serv. v. Means* , 741 F.2d 1053, 1060 (8th Cir. 1984) (Gibson, J., concurring) (in criminal cases, "[t]he United States is [a] party"; it is "the party prosecuting a criminal case"); *Davis v. Bolger* , 496 F.Supp. 559, 566 n.33 (D.D.C. 1980) (under 28 U.S.C. § 1825, "in any case in which the United States is a party," the United States marshal "pay[s] all fees of witnesses" testifying on government's behalf); *see also**Coson v. United States* , 533 F.2d 1119, 1120 (9th Cir. 1976) (where government issues subpoena to witness before grand jury, it bears cost pursuant to 28 U.S.C. § 1825 ).

Federal law, however, goes even further in protecting indigent criminal defendants. In fact, in addition to requiring the United States government to bear the costs for summoning its own witnesses to testify at a criminal defendant's trial, the government must also pay for the witnesses that are subpoenaed to testify on behalf of an indigent criminal defendant. *See* FED. R. CRIM. P. 17(b) ; *United States v. Denton* , 535 Fed.Appx. 832, 838 (11th Cir. 2013) ( rule 17"directs district courts to issue a subpoena" on behalf of indigent criminal defendant "at [the] government['s] expense"). As Federal Rule of Criminal Procedure 17 provides:

> [T]he court must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witness's fee and the necessity of the witness's presence for an adequate defense. If the court orders a subpoena to be issued, *the process costs and witness fees will be paid in the same manner as those paid for witnesses [that] the government subpoenas.*

FED. R. CRIM. P. 17(b) (emphasis added). In essence, rule 17 requires that "the costs of having witnesses testify [on a defendant's behalf] be covered by the government once *628a [criminal] defendant demonstrates an inability to pay and a need for the testimony." *United States v. Mata* , No. 15-68, 2015 WL 5552658, at *3 (E.D. La. Sept. 17, 2015) ; *see also**United States v. Persico* , 645 F.3d 85, 113 (2d Cir. 2011) (although "financially able criminal defendants must bear the cost of bringing their own witnesses to the trial," "a defendant can have the government bear the cost if he persuades the court that he is unable to pay and shows" necessity of witness's testimony (internal quotations omitted) ); *In re Pruett* , 133 F.3d 275, 279 (4th Cir. 1997) (issuance and service of subpoenas at government's expense upon showing criminal defendant unable to pay for such issuance and service of subpoenas necessary for defense). Importantly, federal law recognizes the need to "ease the financial burden" placed upon indigent criminal defendants and "assist them in presenting an effective defense." *United States v. Shayota* , No. 15-CR-00264-LHK, 2015 WL 9311922, at *3 (N.D. Cal. Dec. 23, 2015) (order).

Further, in our own state, the Texas Rules of Civil Procedure now make clear that an indigent litigant must not bear the burden of any "[c]ourt [c]osts." *See* TEX. R. CIV. P. 145 ; Supreme Court of Tex., *Final Approval of Amendments to the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure and of a Form Statement of Inability to Afford Payment of Court Costs* , Misc. Docket No. 16-9122 (Aug. 31, 2016) (http://www.txcourts.gov/media/1435934/169122.pdf). In fact, Texas Rule of Civil Procedure 145, titled "Payment of Costs Not Required," provides: "A party who files a Statement of Inability to Afford Payment of Court Costs cannot be required to pay costs," "[a] judgment must not require" such a party "to pay costs," and any "provision in [a] judgment purporting to do so is void."11 TEX. R. CIV. P. 145(a), (h). In explaining the need for rule 145, the Texas Supreme Court has emphasized that "[a]ccess to the civil justice system cannot be denied because a person cannot afford to pay court costs" and "[t]he issue is not merely whether a person can pay costs, but whether the person can afford to pay costs." Supreme Court of Tex., *Final Approval of Amendments to the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure and of a Form Statement of Inability to Afford Payment of Court Costs* , Misc. Docket No. 16-9122 (Aug. 31, 2016) (http://www.txcourts.gov/media/1435934/169122.pdf). Moreover, although "[a] person may have sufficient cash on hand to pay ... fees," that person "cannot afford [to pay] the fees if paying them would preclude [him] from paying for basic essentials, like housing or food."12*Id.* Not surprisingly, it is an abuse of discretion for a court to order an indigent litigant to pay costs when he has filed an uncontested affidavit of indigence pursuant to rule 145. *Campbell v. Wilder* , 487 S.W.3d 146, 151-52 (Tex. 2016).

*629Turning back to appellant's case, I would hold that he has met his burden of establishing that Texas Code of Criminal Procedure article 102.011(a)(3) is unconstitutional as applied to him, an indigent criminal defendant, because it violates his constitutional right to confrontation. However, I recognize that this Court has already rejected arguments identical to those presented by appellant in this case. *See**London* , 526 S.W.3d at 598-602, 604 ; *see also**Robles v. State* , No. 01-16-00199-CR, 2018 WL 1056482, at *6 (Tex. App.-Houston [1st Dist.] Feb. 27, 2018, pet. filed) (mem. op., not designated for publication); *Buford v. State* , No. 01-16-00727-CR, 2017 WL 6759199, at *6-7 (Tex. App.-Houston [1st Dist.] Dec. 28, 2017, pet. ref'd) (mem. op., not designated for publication); *Macias v. State* , 539 S.W.3d 410, 421-24 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) ; *Precedent* , BLACK'S LAW DICTIONARY (10th ed. 2014) (defining precedent as "[a] decided case that furnishes a basis for determining later cases involving similar facts or issues").

Accordingly, I respectfully request that the Texas Court of Criminal Appeals overrule this Court's decision in the current case. *See**Benge v. Williams* , 472 S.W.3d 684, 738 (Tex. App.-Houston [1st Dist.] 2014) (Jennings, J., dissenting from denial of en banc reconsideration) (although "we are not free to disregard binding precedent," as appellate court justices, "we ... are certainly free to point out any flaws in the reasoning of the [binding] opinions"), *aff'd* , No. 14-1057, 548 S.W.3d 466, 2018 WL 2374640 (Tex. May 25, 2018) ; *Jones v. State* , 962 S.W.2d 96, 99 (Tex. App.-Houston 1997) (Taft, J., concurring) (noting although "we are bound by precedent ..., we are not gagged" by it), *aff'd* , 984 S.W.2d 254 (Tex. Crim. App. 1998). Further, I continue to urge the legislature to reevaluate the fee system currently in place in light of the enormous, and potentially unjustified, burden it too often imposes "on the poorest members of society ensnared in Texas' criminal justice system."13

1

*See also**Robles v. State* , No. 01-16-00199-CR, 2018 WL 1056482, at *6 (Tex. App.-Houston [1st Dist.] Feb. 27, 2018, pet. filed) (mem. op., not designated for publication) (relying on *London v. State* , 526 S.W.3d 596 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) and overruling defendant's argument "that the statute authorizing the $25 court fee imposed in th[e] case for 'Summoning Witness/Mileage' is unconstitutional as applied" to him because he is indigent and "could not bear the costs associated with his defense-in particular, the costs ... of exercising his right to confront witnesses"); *Buford v. State* , No. 01-16-00727-CR, 2017 WL 6759199, at *6-7 (Tex. App.-Houston [1st Dist.] Dec. 28, 2017, pet. ref'd) (mem. op., not designated for publication); *Macias v. State* , 539 S.W.3d 410, 421-24 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd).

2

*See*Tex. Penal Code Ann. § 19.02(b), (c) (Vernon 2011).

3

*See* Tex. Code Crim. Proc. Ann. art. 102.011(a)(3), (b) (Vernon 2018) (imposing $5 charge on defendant convicted of felony "for summoning a witness" and requiring defendant to pay "29 cents per mile for mileage required of an officer to perform a service ... and to return from performing that service").

4

*See id.* art. 1.051(c) (Vernon Supp. 2017) (indigent defendant entitled to appointed counsel); *see also id.* art. 26.04 (Vernon Supp. 2017) (detailing procedures for appointing counsel and explaining defendant determined indigent by trial court presumed indigent for remainder of proceedings).

5

*See id.* arts. 24.01 (issuance of subpoenas), 24.03 (Vernon 2009) (subpoena and application therefor).

6

*See id.* art. 24.04 (Vernon 2009) (service and return of subpoena).

7

*See id.*

8

*See**id.* art. 102.011(a)(3), (b).

9

A criminal defendant "shall also pay 29 cents per mile for mileage required of an officer to perform a service" in the defendant's case "and to return from performing that service." *Id.* art. 102.011(b). However, it does not appear in the instant case that the trial court actually assessed any fees against appellant for mileage.

10

The majority, as it did in *London* , emphasizes that appellant was not required to pay the $120 in advance of his trial. However, this is irrelevant. It is the fact that appellant is forced to pay to exercise his constitutional right to confrontation, at any time, that renders article 102.011(a)(3) unconstitutional as applied to him. Further, prior to trial, appellant had, at the very least, constructive notice, if not actual notice based on the State's filings in the trial court, of the costs to be assessed against him for the State's summoning of witnesses. *See**Cardenas v. State* , 423 S.W.3d 396, 398-99 (Tex. Crim. App. 2014) ; *Johnson v. State* , 423 S.W.3d 385, 389 (Tex. Crim. App. 2014).

11

"Costs" are defined as "*any fee charged by the court or an officer of the court that could be taxed in a bill of costs* , including, but not limited to, filing fees, fees for issuance and service of process, fees for a court-appointed professional, and fees charged by the clerk or court reporter for preparation of the appellate record." Tex. R. Civ. P. 145(c) (internal quotations omitted). In the instant case, the trial court taxed the $120 Summoning Witness/Mileage Fee in the "Criminal Bill of Cost" against appellant.

12

The Texas Supreme Court has noted that rule 145 is a "manifestation of the open courts guarantee that 'every person ... shall have remedy by due course of law.' " *Campbell v. Wilder* , 487 S.W.3d 146, 151-52 (Tex. 2016) (alteration in original); *see also* Tex. Const. art. 1, § 13 (open courts provision).

13

Matt Clarke, *Texas Criminal Court Fees are a Tax on Poor Defendants* , Prison Legal News (Mar. 15, 2014), https://www.prisonlegalnews.org/news/2014/mar/15/texas-criminal-court-fees-are-a-tax-on-poor-defendants/ (because "people who have been convicted of crimes elicit much less sympathy," "the myriad of criminal court fees and their misuses will most likely continue unabated"); *see also* Eric Dexheimer, *Hard-up Defendants Pay as State Siphons Court Fees for Unrelated Uses* , Statesman (Sept. 20, 2012), https://www.statesman.com/news/special-reports/hard-defendants-pay-state-siphons-court-fees-for-unrelated-uses/o Nyf6HCFKbA4Nlq0UCLiRM/ ("We're trying to squeeze more money from people who have a hard time getting jobs because they have a criminal record, or have mental illness problems or substance abuse problems.... These fees are taxes on the poor." (quoting executive director of the Texas Criminal Justice Coalition) ).