Aaron Michael Blay v. State ( 2018 )


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  • Affirmed and Memorandum Opinion filed July 10, 2018.
    In the
    Fourteenth Court of Appeals
    NO. 14-17-00173-CR
    AARON MICHAEL BLAY, Appellant
    v.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 177th District Court
    Harris County, Texas
    Trial Court Cause No. 1464213
    MEMORANDUM OPINION
    Appellant Aaron Michael Blay was convicted by a jury of capital murder. The
    trial court sentenced him to life imprisonment without parole under section
    12.31(a)(2) of the Texas Penal Code. See Tex. Penal Code § 12.31(a)(2) (West
    2017). Appellant challenges his sentence, arguing that the Texas capital-murder-
    sentencing scheme violates both the United States and Texas Constitutions.
    Appellant also contends that being charged $185 in court costs for “Summoning
    Witness/Mileage” under article 102.011(a)(3) and (b) of the Texas Code of Criminal
    Procedure violated his federal and state constitutional rights to compulsory process
    and to confrontation. See Tex. Code Crim. Proc. art. 102.011(a)(3), (b) (West 2017).
    We affirm.
    I.     BACKGROUND
    On April 8, 2015, appellant and two other individuals entered a smoke shop
    to commit a robbery. Appellant carried a .40-caliber firearm. Appellant fired at
    least one shot at the store owner, complainant Jacob Espinor, hitting him in the chest.
    By the time police arrived at the scene, complainant had died from his injuries.
    Appellant was indicted for capital murder and was convicted by a jury. The
    trial court sentenced appellant to life without parole in the Institutional Division of
    the Texas Department of Criminal Justice. Appellant was assessed fees in a criminal
    bill of cost, including a $185 fee for “Summoning Witness/Mileage.” Appellant
    timely noticed his appeal and now brings three issues.
    II.    ANALYSIS
    A. Facial challenges to mandatory life-without-parole sentence for adult capital
    felons
    In his first two issues, appellant argues that the automatic punishment of life
    imprisonment without parole violates the Eighth Amendment of the United States
    Constitution and article I, section 13, of the Texas Constitution. Appellant contends
    that the mandatory scheme under section 12.31(a)(2) of the Texas Penal Code is
    unconstitutional because there is no vehicle to consider mitigating evidence
    justifying a less-severe sentence, whether by the jury or by parole authorities. See
    Tex. Penal Code § 12.31(a)(2). Appellant asks this court to extend the United States
    Supreme Court’s holding in Miller v. Alabama to adult offenders. See 
    567 U.S. 460
    ,
    479, 489 (2012) (holding that imposing mandatory sentence of life without
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    possibility of parole on individuals who commit capital murder before age of
    eighteen violates Eighth Amendment).
    The State responds that appellant failed to object to his sentence on these
    grounds in the trial court and cannot challenge his sentence on appeal. We agree.
    Before a party may present a complaint for appellate review, generally the record
    must show that the complaint was made to the trial court by a timely request,
    objection, or motion. Tex. R. App. P. 33.1; Karenev v. State, 
    281 S.W.3d 428
    , 434
    (Tex. Crim. App. 2009) (“[A] defendant may not raise for the first time on appeal a
    facial challenge to the constitutionality of a statute.”); Cerna v. State, 
    441 S.W.3d 860
    , 867–68 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (defendant failed to
    preserve facial challenges to capital-sentencing statute); Sloan v. State, 
    418 S.W.3d 884
    , 891 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (same); Wilkerson v.
    State, 
    347 S.W.3d 720
    , 722 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
    (same).
    Appellant concedes that he did not raise these issues in the trial court, but
    argues preservation was not required because the errors are fundamental and because
    raising an objection would have been futile in light of controlling law. However,
    this court already has rejected substantially similar complaints. Cerna, 441 S.W.3d
    at 867–68 (rejecting appellant’s argument “that the errors he asserts amount to
    fundamental error and therefore preservation of error in the trial court is not
    necessary”); Sloan, 418 S.W.3d at 891–92 (rejecting appellant’s arguments that “he
    should be excepted from preserving error because any objection would have been
    futile at the time of sentencing and he now raises a ‘right not recognized’” and that
    Miller “weakened earlier precedent approving of mandatory sentencing”).
    Because appellant did not voice these facial constitutional complaints against
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    his sentence in the trial court, he failed to preserve error.1 We overrule appellant’s
    first and second issues.
    B. As-applied challenges to court costs for witness subpoenas and mileage
    In his third issue, appellant argues that the imposition of a $185 fee for
    “Summoning Witness/Mileage” is unconstitutional as applied to him as an indigent
    defendant because it violated his rights to compulsory process and to confront
    witnesses.2 See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim.
    Proc. art. 102.011(a)(3), (b) (mandating—after defendant is convicted of felony or
    misdemeanor—the assessment of $5 fee for summoning each witness and 29 cents-
    per-mile fee for mileage required for officer to perform this service).
    We have held these types of fees constitutional on an as-applied basis on
    almost identical grounds. Merrit v. State, 
    529 S.W.3d 549
    , 558–59 (Tex. App.—
    Houston [14th Dist.] 2017, pet. ref’d) (no violation of right to compulsory process
    where appellant did not “show[] that other material, favorable witnesses were
    available but not called by appellant due to his constructive notice of the witness and
    mileage fees”; no violation of right to confront witnesses where “appellant’s
    inability to pay the postjudgment fees could not have prevented him from
    confronting any witnesses at trial, before the fees were assessed”); Eugene v. State,
    
    528 S.W.3d 245
    , 250–51 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (same);
    see London v. State, 
    526 S.W.3d 596
    , 598–602 (Tex. App.—Houston [1st Dist.]
    1
    Even if error had been preserved, we consistently have held that an automatic sentence of
    life without parole is not unconstitutional when assessed against an adult offender convicted of
    capital murder. See Sloan, 418 S.W.3d at 891–92 (refusing to extend Miller to adult-offender
    context); Wilkerson, 
    347 S.W.3d at
    722–23 (holding that automatic sentence of life without parole
    did not violate either United States or Texas Constitution). Here, appellant was twenty-four years
    old when he committed the capital offense.
    2
    Appellant does not dispute that the record supports at least $185 in assessed “Summoning
    Witness/Mileage” fees.
    4
    2017, pet. ref’d). Likewise, appellant fails to explain what he would have done
    differently had he not been on constructive notice that, upon conviction, he would
    be assessed such fees—as required to meet his burden to prevail on his as-applied
    challenge. See Eugene, 
    528 S.W.3d at
    250–51.
    We overrule appellant’s third issue.
    III.   CONCLUSION
    Having overruled all of appellant’s issues, we affirm the trial court’s
    judgment.
    /s/       Marc W. Brown
    Justice
    Panel consists of Justices Boyce, Jamison, and Brown.
    Do Not Publish — TEX. R. APP. P. 47.2(b).
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