London v. State
| Citation | 526 S.W.3d 596 |
| Decision Date | 27 June 2017 |
| Docket Number | NO. 01-13-00441-CR.,01-13-00441-CR. |
| Parties | Joshua LONDON, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Jani Maselli Wood, Assistant Public Defender, 1201 Franklin Street, 13th Floor, Houston, TX 77002, for Appellant.
Kim Ogg, District Attorney—Harris County, 1201 Franklin, Suite 600, Houston, TX 77002, Eric Kugler, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002, for Appellee.
Panel consists of Justices Jennings, Massengale, and Brown.
The sole issue in this appeal is an as-applied constitutional challenge to the imposition of statutory court costs for witness subpoenas in a criminal case. The appellant contends that his constitutional rights to compulsory process to secure favorable witnesses and to confront adverse witnesses1 were violated by a statute which requires a defendant, upon conviction of a crime, to pay "$5 for summoning a witness."2
The appellant pleaded guilty before trial. He has failed to identify any witness he would have called but for the prospect of postjudgment liability for a $5 per witness fee. He also has failed to demonstrate how he was denied the opportunity to confront witnesses against him. As such, we conclude no constitutional harm has been shown by the assessment of court costs, as applied in this case. Accordingly, we affirm.
Appellant Joshua London was arrested for possession of cocaine. The trial court found that he was unable to afford an attorney and appointed counsel to represent him. London never attempted to subpoena or present any witnesses. Instead, on the eve of trial, he pleaded guilty to possession of a controlled substance in an amount between one and four grams,3 without an agreed recommendation as to punishment.
The trial court sentenced him to 25 years in prison and ordered him to pay $329 in court costs. The judgment did not contain any itemization of how these costs were calculated.
London filed a notice of appeal. The district clerk provided him with a bill of costs that described each component of his court costs. These included $35 in fees for summoning seven witnesses for the State and paying for the expense of serving subpoenas, listed as "Summoning Witness/Mileage."4 Because the statutory fee for each of the seven witnesses was $5, it does not appear any fees actually were assessed for mileage.
On appeal, London challenges the imposition of statutory court costs for witness subpoenas pursuant to article 102.011(a)(3) of the Code of Criminal Procedure, as applied to him in this case, as a violation of his constitutional rights to compulsory process and confrontation of witnesses.
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, "the accused shall enjoy the right ... to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor."5 Using nearly identical language, the Texas Bill of Rights provides that "the accused ... shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor...."6
A litigant raising an "as applied" challenge to a statute concedes the statute's general constitutionality, "but asserts that the statute is unconstitutional as applied to his particular facts and circumstances."7 The burden rests on the challenger to establish the statute's unconstitutionality.8 "Courts must evaluate the statute as it has been applied in practice against the particular challenger."9 Because the scope of an as-applied challenge is narrow, a court of appeals may not "entertain hypothetical claims" or consider the potential impact of the statute on a potential future claimant, third party, or anyone other than the challenger presently before the court.10
Article 102.011 provides, in relevant part:
London asserts that these statutory subpoena fees are unconstitutional as applied to him because he is indigent. He claims that the fees violate his constitutional right to compulsory process as well as his constitutional right to confront his accusers.
The Compulsory Process Clause guarantees "the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt."12 This right is limited to compulsory process for obtaining witnesses "whose testimony would be both material and favorable to the defense."13 In order to secure compulsory process, the defendant must make a preliminary showing of the "materiality and favorableness" of the witnesses he seeks.14 "Were the burden of showing materiality and favorableness not placed on the defendant, ‘frivolous and annoying requests [c]ould make the trial endless and unduly burdensome on the Court and all officers thereof.’ "15
London has not identified, either at trial or on appeal, any material and favorable witnesses he wished to present. He did not attempt to issue any subpoenas or compel process for any potential witnesses. Instead, he asserts on appeal that his "constructive notice" of the $5 witness fee precluded him from presenting an adequate defense.16 This argument ignores 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."17 Without a showing that material, favorable witnesses were available to be called by London, 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."18
The Confrontation Clause generally requires face-to-face confrontation at trial, and "an encroachment upon face-to-face confrontation is permitted only when necessary to further an important public interest and when the reliability of the testimony is otherwise assured."21
London does not provide a clear argument about how the statutory $5 witness fee operated to deny him his right to confrontation. The fees were assessed only after he pleaded guilty, as specified by the statute.22 Because these fees are only "assessed on conviction," his opportunity to confront or cross-examine the State's witnesses was not contingent on his postjudgment ability to pay the witness fees.23 Beyond the bare assertion that requiring him to pay the costs for summoning witnesses is "unfair and unconstitutional," London 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."24
London asserts that the constitutional harm to him is apparent from his indigence. He relies on the Sixth Amendment and Gideon v. Wainwright25 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 further suggests that his indigence itself is the constitutional "harm." Yet he provides no argument or evidence that he was deprived of his confrontation rights because of the prospect of being assessed a $5 witness fee after the conclusion of trial, if he were convicted.26 He also provides 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.
London's appeal is premised on a conclusory assertion that it is "unfair and unconstitutional" to assess court costs against an indigent defendant. That assertion is not supported by any legal analysis. Some courts of appeals have held that indigence does not preclude the recovery of court costs, so long as they are not required to be paid in advance.27 London's counsel did not disclose these contrary authorities, nor did counsel attempt to distinguish them or argue that they were wrongly decided.
Finally, London notes that indigent litigants in other contexts are not charged a witness fee, such as under the Federal Rules of Criminal Procedure and the recently amended Texas Rules of Civil Procedure.28 London may have identified an evolving policy trend toward not charging court costs of this type, but that is no argument that the opposite policy choice, to charge the $5 witness fee, is unconstitutional.29
In this particular case, which is an as-applied challenge, we need not decide whether indigence is a categorical barrier to assessing (or ultimately...
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...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. Re......
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...based on the statute’s hypothetical application are not relevant to an as-applied challenge. London v. State , 526 S.W.3d 596, 599 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd).We have previously rejected the same as-applied challenge in a similar case. Id. In London , we observed that t......
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