No. PD-0480-15

In the

Court of Criminal Appeals



No. 01-13-00441-CR

In the Court of Appeals for the 

Fourteenth District of Texas at Houston



No. 1367861

In the 260th District Court of 

Harris County, Texas



JOSHUA LONDON

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S BRIEF ON DISCRETIONARY REVIEW



DEVON ANDERSON

District Attorney

Harris County, Texas

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

TBC No. 796910

kugler_eric@dao.hctx.net

1201 Franklin, Suite 600

Houston, Texas 77002

Tel.: 713-755-5826

FAX: 713-755-5809

Counsel for Appellee

ORAL ARGUMENT PERMITTED

PD-0480-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/26/2015 2:23:33 PM

Accepted 8/26/2015 2:37:22 PM

ABEL ACOSTA

CLERK
STATEMENT REGARDING ORAL ARGUMENT

This Court has permitted oral argument in this case.

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Eric Kugler  Assistant District Attorney on appeal

Chris Morton  Assistant District Attorney at trial

Appellant or criminal defendant:

Joshua London

Counsel for Appellant:

Jani Wood  Assistant Public Defender on appeal

Charles Brown  Counsel at trial

Trial Judge:

Hon. Jim Anderson  Presiding Judge (visiting)

Hon. Brad Hart  Presiding Judge (elected)
2

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT.................................................1

IDENTIFICATION OF THE PARTIES ....................................................................1

INDEX OF AUTHORITIES......................................................................................3

STATEMENT OF THE CASE...................................................................................5

ISSUE PRESENTED.................................................................................................5

The Court of Appeals determined that the constitutional challenge to the 

Sheriff’s fees could not be raised for the first time on appeal. The basis for the 

challenge was not available to Mr. London until 19 days after the judgment was 

signed. Did the Court of Appeals err in refusing to consider a challenge that was 

only available post-trial, in derogation of Landers v. State?..................................5

SUMMARY OF THE ARGUMENT.........................................................................5

ARGUMENT.............................................................................................................6

The appellant did not preserve the issue he raised on appeal because he failed to 

object in the trial court on the same basis and failed to develop a record on how 

the court costs were applied to him........................................................................6

PRAYER ..................................................................................................................13

CERTIFICATE OF SERVICE AND COMPLIANCE.............................................14
3

INDEX OF AUTHORITIES

CASES

Brady v. Fourteenth Court of Appeals, 

795 S.W.2d 712 (Tex. 1990).................................................................................11

Cardenas v. State, 

423 S.W.3d 396 (Tex. Crim. App. 2014)................................................................8

Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 

826 S.W.2d 489 (Tex. 1992).................................................................................11

Clark v. State, 

305 S.W.3d 351 (Tex. App.—

Houston [14th Dist.] 2010).....................................................................................7

Curry v. State, 

910 S.W.2d 490 (Tex. Crim. App. 1995)............................................................7, 8

Johnson v. State, 

14-14-00475-CR (Tex. App.

– Houston [14th Dist.] Aug. 25, 2015, no pet. h.).................................................9

Johnson v. State, 

423 S.W.3d 385 (Tex. Crim. App. 2014)................................................................8

Landers v. State, 

10-11-00408-CR, 2012 WL 3799212 (Tex. App.—

Waco Aug. 30, 2012)..............................................................................................9

Landers v. State, 

402 S.W.3d 252 (Tex. Crim. App. 2013)....................................................9, 11, 12

London v. State, 

01-13-00441-CR, 2015 WL 1778583 (Tex. App.—

Houston [1st Dist.] Apr. 16, 2015, pet. granted)....................................................5

Mayer v. State, 

309 S.W.3d 552 (Tex. Crim. App. 2010)..............................................................10
4

Moff v. State, 

131 S.W.3d 485 (Tex. Crim. App. 2004)................................................................8

Rylander v. Caldwell, 

23 S.W.3d 132 (Tex. App.—

Austin 2000, no pet.)............................................................................................11

State v. Rosseau, 

398 S.W.3d 769 (Tex. App.—

San Antonio 2011), aff ’d, 

396 S.W.3d 550 (Tex. Crim. App. 2013)..............................................................11

Sturdivant v. State, 

445 S.W.3d 435 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)....................10

STATUTES

TEX. CODE CRIM. PROC. art. 102.011(a)(3) (West 2010) ...........................................7

TEX. CODE CRIM. PROC. art. 102.011(b) (West 2010)................................................8

TEX. CODE CRIM. PROC. art. 103.008 (West 2010) ..................................................12

RULES

TEX. R. APP. P. 33.1(a)................................................................................................6

TEX. R. APP. P. 33.1(a)(1)(A) .....................................................................................7

TEX. R. APP. P. 44.2(a)..............................................................................................12
5

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

The appellant was charged with possession of cocaine (CR – 14). He pled 

“guilty” to the charge, and the court sentenced him to 25 years in prison (CR – 77). 

The court of appeals affirmed the conviction. London v. State, 01-13-00441-CR, 

2015 WL 1778583 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, pet. granted). 

But this Court granted review. 

ISSUE PRESENTED

The Court of Appeals determined that the constitutional challenge 

to the Sheriff’s fees could not be raised for the first time on

appeal. The basis for the challenge was not available to Mr. 

London until 19 days after the judgment was signed. Did 

the Court of Appeals err in refusing to consider a challenge 

that was only available post-trial, in derogation of Landers 

v. State?

SUMMARY OF THE ARGUMENT

The appellant challenged on appeal the constitutionality of the court cost 

statutes as applied to him. But he failed to object in the trial court, to file a formal 

bill of exception, or to otherwise take any steps to develop the record on how the 

court cost statutes were actually applied to him. Therefore, he failed to preserve 

the constitutional as-applied claim for appellate review, and the court of appeals 

properly dismissed that claim on that basis.
6

ARGUMENT

The appellant claims that the assessment of court costs for summoning 

witnesses is unconstitutional as applied to him. (App’nt PDR Brf. 7). Specifically, 

he complains that the assessment violated his rights to confrontation and 

compulsory process. This argument lacks merit because he failed to object to that 

specific court cost at trial, did not develop a record on how the court costs were 

applied to him, and did not preserve the constitutional issues for appellate review. 

A notation on the appellant’s written judgment states “Court Costs,” and the 

sum of “$294.00” is typed below that heading (CR – 35). That “$294.00” figure 

was then crossed out, and the number “329” was written in its place along with 

someone’s apparent initials (CR – 77). On the second page of the judgment, the 

“Court ORDERS Defendant to pay all fines, court costs, and restitution as 

indicated above.” (CR – 78) (emphasis in original). Finally, the district clerk 

prepared and filed a bill of costs that breaks down the $329 in assessed court costs, 

including $35 for “Summoning Witness/Mileage.” (CR – 80). 

The appellant did not preserve the issue he raised on appeal 

because he failed to object in the trial court on the same 

basis and failed to develop a record on how the court costs 

were applied to him.

The Texas Rules of Appellate Procedure require a party to preserve error for 

appellate review by demonstrating the error on the record. TEX. R. APP. P. 33.1(a); 
7

Clark v. State, 305 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 

365 S.W.3d 333 (Tex. Crim. App. 2012). The party must make the complaint in a 

timely manner and state the grounds for the ruling that the complaining party seeks 

from the trial court with sufficient specificity to make the trial court aware of the 

complaint, unless the specific grounds were apparent from the context. TEX. R.

APP. P. 33.1(a)(1)(A). 

In raising the complaint on appeal, the party must ensure the point of error is 

the same as the complaint or objection made during trial. Clark, 305 S.W.3d at 

354. Even constitutional errors can be waived if a party fails to properly object to 

the errors at trial. Id. at 355. A challenge to the constitutionality of a statute as 

applied to a defendant may not be raised for the first time on appeal. Curry v. State, 

910 S.W.2d 490, 496 (Tex. Crim. App. 1995). Therefore, if a party’s objection at 

trial does not correspond with its issue on appeal, the party has waived that issue. 

Clark, 305 S.W.3d at 354.

In the present case, the appellant claimed on appeal that Article 

102.011(a)(3) of the Texas Code of Criminal Procedure was unconstitutional as 

applied to him. (App’nt Brf. 8). Article 102.011(a)(3) provides that a “defendant 

convicted of a felony or a misdemeanor shall pay the following fees for services 

performed in the case by a peace officer...$5 for summoning a witness.” TEX.

CODE CRIM. PROC. art. 102.011(a)(3) (West 2010). Article 102.011(b) further
8

provides that a defendant is also required to 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,” and “all necessary and reasonable expenses for 

meals and lodging incurred by the officer in the performance of services under this 

subsection.” TEX. CODE CRIM. PROC. art. 102.011(b) (West 2010). There was no 

indication in the bill of costs how much of the $35 “Summoning Witness/Mileage”

fee was for summoning witnesses and how much was for mileage and expenses. 

Nevertheless, there is no evidence that the appellant ever objected to the 

assessment of such court costs on any basis. Therefore, his constitutional claims 

were not preserved for appellate review, and the court of appeals properly 

dismissed his claim. 

The appellant cites Cardenas v. State, 423 S.W.3d 396, 398–99 (Tex. Crim.

App. 2014), and Johnson v. State, 423 S.W.3d 385, 391–92 (Tex. Crim. App.

2014), in support of his argument that an objection was not required. (App’nt PDR 

Brf. 9). But those cases dealt with the sufficiency of the evidence to support court 

costs, not the constitutionality of the court-cost statutes themselves. It is wellsettled that no trial objection is required to challenge the sufficiency of the 

evidence on appeal. See Moff v. State, 131 S.W.3d 485, 488–89 (Tex. Crim. App.

2004). But it is equally well-settled that a trial objection is required to challenge 

the constitutionality of a statute as applied to a particular litigant. See Curry, 910 
9

S.W.2d at 496; see also Johnson v. State, 14-14-00475-CR, slip. op. at 6 (Tex. 

App. – Houston [14th Dist.] Aug. 25, 2015, no pet. h.) (“Because neither Johnson

nor Cardenas provides appellant with an exception to the requirement that he 

preserve his facial constitutional challenge in the trial court, we conclude that 

appellant failed to preserve error for appellate review.”). Therefore, a trial 

objection was required in the present case, and the appellant waived his complaint 

on appeal by failing to make such a trial objection. 

The appellant also cites Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 

2013), in support of his argument. (App’nt PDR Brf. 10). In Landers, court costs 

and included fees of $3,718.50 for an attorney pro tem and $440.00 for 

investigative costs of the prosecutor were assessed against Landers without notice. 

On appeal, the appellant challenged the statutory authority and sufficiency of the 

evidence to sustain the assessment. Landers v. State, 10-11-00408-CR, 2012 WL 

3799212, at *3 (Tex. App.—Waco Aug. 30, 2012). This Court held that Landers 

was not required to file a motion for new trial to challenge the assessment of such 

costs on appeal because his “complaint was one of law and not facts.” Landers, 

402 S.W.3d at 255. As in all sufficiency challenges, there could be no further 

factual development of the record because sufficiency challenges are based on the 

existing record. 
10

In the present case and unlike Landers, whether the appellant’s rights to 

confrontation and compulsory process were violated required further factual 

development. Specifically, as highlighted by the appellant, additional fact-finding 

was required on “whether this fee is for the State’s subpoenas or the defense 

subpoenas.” (App’nt Brf. 8). Additional fact-finding was also required on whether 

the appellant truly “cannot bear the costs associated with the defense of his 

constitutional rights,” as he claimed. (App’nt Brf. 10). Thus, because additional 

fact-finding was required in order to support the appellant’s as-applied 

constitutional challenge to the statutory court costs, the appellant should have filed 

a motion for new trial, or, in the alternative, a formal bill of exception. See id., 402 

S.W.3d at 256 (Keller, P.J., concurring). It simply defies logic to allow an asapplied challenge to proceed without an opportunity to develop the record on how 

the statute was applied to the facts of the particular case.

The appellant cites Sturdivant v. State, 445 S.W.3d 435 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d), in support of his claim that a formal bill of 

exception was not required to develop the record. But like Landers, Sturdivant was 

challenging the sufficiency of the evidence to support the assessed fees under 

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010), rather than the 

constitutionality of the court cost statute as applied to him. Thus, there could be no 

further factual development of the record. As-applied constitutional challenges, on 
11

the other hand, require a factual development. See State v. Rosseau, 398 S.W.3d 

769, 774 (Tex. App.—San Antonio 2011), aff’d, 396 S.W.3d 550 (Tex. Crim. App. 

2013) (“Rosseau’s motion to quash only raised an ‘as-applied’ challenge to the 

constitutionality of section 22.011(f), which could not be determined pre-trial 

because it depends on the facts developed at trial.”); see also Carrollton-Farmers 

Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 551 

(Tex. 1992) (“determination of whether statute as applied violates Constitution 

‘requires a fully-developed factual record.’”) (citing Brady v. Fourteenth Court of 

Appeals, 795 S.W.2d 712 (Tex. 1990)). Because the appellant’s claim required full 

factual development, he should have filed a formal bill of exception to develop the 

record. His failure to do so waived the issue for appellate review. See Landers, 

402 S.W.3d at 255 (“A motion for new trial is required to preserve error only when

it is necessary to adduce facts not in the record.”). 

Finally, the appellant cites a civil case, Rylander v. Caldwell, 23 S.W.3d 132 

(Tex. App.—Austin 2000, no pet.), in support of his claim that he could not have 

challenged the constitutionality of Article 102.011(a)(3) under the procedure 

established by Article 103.008. (App’nt PDR Brf. 11). Article 103.008 provides:

“On the filing of a motion by a defendant not later than one year after the date of 

the final disposition of a case in which costs were imposed, the court in which the 

case is pending or was last pending shall correct any error in the costs.” TEX. CODE 
12

CRIM. PROC. art. 103.008 (West 2010). The Rylander court held that “seeking a 

declaration that the statute imposing the costs is unconstitutional” did not 

constitute “error” under Article 103.008. Rylander, 23 S.W.3d at 137. But the 

term “error” has traditionally included both constitutional and non-constitutional 

errors. TEX. R. APP. P. 44.2(a). And if a court cost should not have been assessed 

because it was unconstitutional, then surely there would be an error in the assessed 

costs, which could be challenged and corrected under Article 103.008. Thus, 

Rylander is incorrect and should be repudiated by this Court. Nevertheless, 

Rylander is ultimately irrelevant to this case because the appellant was required to 

develop the record in order to support his as-applied challenge to the statute and to 

preserve the issue for appellate review. Landers, 402 S.W.3d at 255. The 

appellant failed to develop such a record. Therefore, his claim was not preserved 

for appellate review, and the court of appeals properly rejected it.
13

PRAYER 

It is respectfully submitted that the court of appeals properly affirmed the 

judgment in this case. Therefore, this Court should affirm the ruling of the lower 

court of appeals for the reasons stated. 

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

kugler_eric@dao.hctx.net

TBC No. 796910
14

CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program 

used to prepare this document reports that there are 2,611 words in it; and (b) a 

copy of the foregoing instrument will be served by efile.txcourts.gov to:

Jani Wood

Assistant Public Defender

Harris County, Texas

1201 Franklin, 13th Floor

Houston, Texas 77002

Jani.Maselli@pdo.hctx.net

Lisa McMinn

State Prosecuting Attorney

P.O. Box 13046

Austin, Texas 78711

Lisa.McMinn@SPA.texas.gov

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 796910

Date: August 26, 2015