IKEMERE v. STATE (2025)

OPINION

A jury found appellant guilty of capital murder predicated on aggravated robbery. The trial court imposed an automatic sentence of imprisonment for life without parole. In its judgment, the court ordered appellant to pay $290 in court costs and $2,855 in reimbursement fees. In his first four issues, appellant contends that the trial court erred by admitting irrelevant and unduly prejudicial evidence during the trial. In his fifth and final issue, appellant challenges the imposition of court costs and reimbursement fees. We affirm the judgment except for the reimbursement fees, and we remand that issue to the trial court for a recalculation of reimbursement fees.

I. Admission of Evidence

In his first four issues, which he argues together, appellant contends that the trial court erred by admitting irrelevant and unduly prejudicial evidence that appellant pawned a handgun after the murder and that a handgun was found in the trunk of his car when he was arrested.

A. Background

1. Appellant's Story

Appellant testified at trial that he knew the complainant, thought the complainant was “cool,” and looked up to him. The pair would do illegal activities together such as “sell drugs, you know, things like that, of that nature.” The pair would scam people with counterfeit money.

He testified that on the night of the murder, he and the complainant went to a dice game at an apartment complex and met three or four other men there. Appellant didn't know the location of the apartment. He didn't know the names of any of the other men. When the complainant lost about $2,000 on the dice game, appellant loaned him $3,000 and took the complainant's expensive and custom-made jewelry as collateral.

Appellant then drove the pair to a location that appellant did not know to meet a member of a drug cartel whom appellant did not know with the intent to scam the cartel member out of drugs with counterfeit money. Appellant testified that the cartel member got in the back seat of appellant's car and started yelling and moving around after realizing the money was counterfeit. Appellant left the complainant behind when appellant dashed out of the car, hopped a fence, and hid behind a generator. He heard gunshots and the cartel member's car leave. When appellant returned to his car, the complainant had been shot in the head at close range and was dead.

Appellant didn't call for an ambulance. He didn't call for the police. Nor for that matter did he call anyone to tell them what happened. Instead, he drove to another location—a dark roadway without much traffic, with the admitted intent to conceal himself—and dumped his friend's body on the side of the road. There was a lot of blood in the car, so he went to clean it out. A few days later, he went to a car wash to clean it out again.

Within days of the murder, appellant went to multiple pawn shops to sell some of the complainant's jewelry. He admitted to lying to the complainant's mother and friend about what happened that night, claiming that he last saw the complainant take an Uber to a Burger King.

2. The Other Story

Appellant's ex-girlfriend testified that she knew the complainant as appellant's good friend from childhood. Appellant was “infatuated” and “obsessed” with the complainant's lifestyle, always talking about what the complainant was doing.

During the year or so that she and appellant had dated, she had never known appellant to have large sums of money. But not long after the murder, appellant called her and told her that he “got money now.” Appellant told her how the complainant fell asleep in appellant's car, and appellant shot the complainant four times in the head before dragging his body outside of the car and taking all of the complainant's stuff.

3. Objections to Handgun Evidence

Outside the jury's presence, appellant objected to the anticipated testimony from one police officer that a handgun was found in the trunk of appellant's car when he was arrested. He argued that the evidence was irrelevant, and its prejudicial value outweighed its probative value. He also objected to the admission of body-cam footage and a picture of the trunk and gun on the same grounds. The trial court overruled the objections.

During the testimony of a Houston Forensic Science Center (HFSC) employee who participated in a search of appellant's car, appellant objected to the admission of two photographs depicting the handgun found in appellant's car and to the admission of the gun itself. The trial court overruled the objections.

Appellant similarly objected outside the jury's presence to the anticipated testimony from a second police officer that appellant pawned a handgun soon after the murder. Appellant objected to the admission of the gun itself and a pawn slip documenting the sale. The trial court overruled the objections.

4. Other Handgun Evidence

Appellant did not object to testimony from the second police officer that a gun was found in the trunk of appellant's car and that it was determined not to be the murder weapon. Appellant did not object to testimony from the HFSC employee that a gun was found inside the trunk of appellant's car.

Appellant elicited testimony on cross-examination from an HFSC firearms examiner that she was asked to compare four bullets with two guns submitted to the lab, and she determined that the bullets were not fired from either gun.

Appellant admitted while testifying that there was evidence he possessed a gun in the trunk of his car when he was arrested. He admitted to pawning a gun.

B. Preserved vs. Unpreserved Error

On appeal, it appears from appellant's brief that he contends the trial court erred by admitting all the evidence discussed above concerning the two handguns. However, appellant's objections to the evidence discussed in Part I.A.3 of this opinion did not preserve error regarding the evidence discussed in Part I.A.4. See, e.g., Ross v. State, 154 S.W.3d 804, 811–12 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (objection outside the jury's presence to testimony of one witness does not preserve error for admission of testimony of another witness about the same subject matter); cf. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (objection to two exhibits—photographs depicting the defendant with people showing gang signs—did not preserve error for other gang-related testimony).

C. Harmless Error

Assuming without deciding that the trial court erred by admitting the evidence discussed in Part I.A.3 of this opinion, we must disregard the non-constitutional error unless it affected appellant's substantial rights. See Tex. R. App. P. 44(b). Error affects substantial rights if the error had a substantial and injurious effect or influence in determining the jury's verdict. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). If we have a fair assurance from examining the record as a whole that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction. Id. Often the erroneous admission of evidence is harmless if similar evidence is admitted without objection. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010); see also Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (“It is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged.” (quotation omitted)).

The jury heard, without objection, testimony that appellant possessed a gun in the trunk of his car and pawned a gun. This evidence was very similar to the evidence about which he complains on appeal. Considering the entire record, we have a fair assurance that any error in the admission of evidence concerning appellant's possession of two handguns that were not the murder weapon did not influence the jury or had but a slight effect. See Alanis v. State, 891 S.W.2d 737, 741–42 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (erroneous admission of evidence that the defendant was in possession of a gun unconnected to the offense at the time of his arrest was rendered harmless in light of other evidence that the defendant possessed a gun); see also Leday, 983 S.W.2d at 717; Sanchez v. State, 595 S.W.3d 331, 339–40 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

Appellant's first four issues are overruled.

II. Costs and Fees

In his fifth issue, appellant contends that the trial court erred by rendering a judgment and ordering appellant to pay $290 in court costs and $2,855 in reimbursement fees.

A. Background

The trial court's judgment orders appellant to pay $290 in court costs and $2,855 in reimbursement fees. The Clerk's Record includes a bill of costs as follows:

The record also includes about sixty returns for executed witness subpoenas signed by a deputy in the name of the sheriff of Harris County. Each return indicates that the subpoena was “emailed to witness and/or designated recipient.”

B. Court Costs

The parties agree that the judgment's $290 in court costs comprises the state and local consolidated court costs, respectively $185 and $105 from the bill of costs. See Tex. Loc. Gov't Code §§ 133.102(a)(1), 134.101(a). The parties also agree that the local cost should be deleted and the state cost reduced to $133 because appellant's offense occurred before the effective date—January 1, 2020—of a statutory amendment to the Cost Act setting the costs at $185 and $105. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 1.03, 1.05, 5.01, 2019 Tex. Gen. Laws 3981, 3982, 3985, 4035.

However, after the parties filed their briefs, the Court of Criminal Appeals clarified that the new cost amounts in the Cost Act should apply regardless of the date of the offense if the defendant was convicted after January 1, 2020. See Bradshaw v. State, 707 S.W.3d 412, –––– (Tex. Crim. App. 2024). Although Bradshaw only addressed the $185 state consolidated court cost, the same rationale applies to the $105 local consolidated court cost. See Joseph v. State, No. 01-23-00937-CR, 2025 WL 714982, at *3 (Tex. App.—Houston [1st Dist.] Mar. 6, 2025, no pet. h.) (mem. op., not designated for publication) (en banc, per curiam) (applying Bradshaw’s reasoning to the $105 state consolidated court cost).¹ This court is not bound by the State's concession of error. See Oliva v. State, 548 S.W.3d 518, 520 (Tex. Crim. App. 2018); see also Hankston v. State, 656 S.W.3d 914, 918–19 (Tex. App.—Houston [14th Dist.] 2022, pet. ref'd) (declining to apply a constitutional harm analysis, despite the State's concession, because the Court of Criminal Appeals issued a contrary opinion after the parties filed their briefs).

Accordingly, the trial court did not err by including $290 in court costs in the judgment.

C. Reimbursement Fees

The remaining fees in the bill of costs total the $2,855 reimbursement fee included in the judgment. Appellant does not contest the $5 charges for (1) “LEA – Arrest w/out Capias,” see Tex. Code Crim. Proc. art. 102.011(a)(1); (2) “LEA – Commitment Fee,” see id. art. 102.011(a)(6); (3) “LEA – Release Fee,” see id. art. 102.011(a)(6); and (4) “LEA – Summon Jury,” see id. art 102.011(a)(7). But, appellant contends that there is no statutory basis for the $2,835 fee for “LEA – Attach/Convey Witness,” and he contends, “The record contains no request for nor the issuance of an order for the attachment of any witness.”

We disagree with appellant's contention regarding the lack of a statutory basis for the attach/convey witness fee. Under Article 102.011, a defendant is required to pay certain fees for services performed by a peace officer, such as (1) $5 for summoning a witness; (2) $35 for serving a writ; (3) $0.29 per mile for mileage required to serve a writ or to “summon or attach a witness”; and (4) $10 per day spent by an officer who attaches and conveys a witness outside the county, plus actual necessary travel expenses. See id. art. 102.011(a)(3)–(4), (b), (c); see also Rhodes v. State, 676 S.W.3d 228, 233 (Tex. App.—Houston [14th Dist.] 2023, no pet.).² Thus, there is a statutory basis for reimbursing peace officers for attaching and conveying witnesses.

The State contends, “Appellant's brief does not argue that the record lacks support for reimbursement costs for law enforcement agency fees.” We disagree with the State because appellant contends in his brief that (1) court costs may not be assessed for a service not performed, and (2) the record does not show that any witness was attached.

The Court of Criminal Appeals has classified the peace-officer reimbursement statute as a “mandatory cost,” i.e., a cost that is a “predetermined, legislatively mandated obligation imposed upon conviction.” Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014) (citing Tex. Code Crim. Proc. arts. 102.001–.022). Such court costs “are not part of the guilt or sentence of a criminal defendant, nor must they be proven at trial.” Id. at 390. Thus, “we review the assessment of court costs on appeal to determine if there is a basis for the cost, not to determine if there was sufficient evidence offered at trial to prove each cost” under a traditional evidence-sufficiency standard. Id. Nonetheless, a reviewing court may be asked to determine whether “the assessed court costs are supported by facts in the record.” Id. at 395. An appellant may bring a “challenge to a specific cost or basis for the assessment of that cost.” Id. at 396.

For example, this court in Rhodes reviewed a $185 “Attach/Convey Witness” fee and modified the judgment to delete the fee when there was “nothing in the record demonstrating that a peace officer served a subpoena on a witness or conveyed or attached any witness.” 676 S.W.3d at 234.

Here, the State does not point to any record support for the $2,835 attach/convey witness fee. The record contains about sixty returns for subpoenas to witnesses, served by email. Although the service of a subpoena and the summoning a of witness are not equivalent to the attachment and conveyance of a witness,³ this court has suggested that an attach/convey witness fee may be supported when the record contains subpoenas for witnesses. See Rhodes, 676 S.W.3d at 234 (noting the absence of anything in the record demonstrating the service of a “subpoena” when evaluating the attach/convey witness fee); see also Harrideo v. State, No. 14-23-00478-CR, 2024 WL 3948215, at *2 (Tex. App.—Houston [14th Dist.] Aug. 27, 2024, pet. ref'd) (mem. op., not designated for publication) (per curiam) (affirming $295 attach/convey witness fee when the record included twenty-three applications for witness subpoenas, and the bill of costs did not separately assess a fee for summoning witnesses).

The bill of costs in this case does not identify a witness summoning fee separate from the attach/convey witness fee. But, the roughly sixty returns of service for witness subpoenas—served by email and thus incurring no mileage—alone do not support the entire $2,835 attach/convey witness fee. See Tex. Code Crim. Proc. art. 102.011(a)(3) (authorizing $5 per summons).

Under these circumstances, either (1) the record supports some, but not all, of the attach/convey witness fee; or (2) the record does not support any attach/convey witness fee, but the record does support unassessed mandatory fees for summoning witnesses. In either scenario, we will reverse the trial court's award of the reimbursement fees and remand for a redetermination of mandatory reimbursement fees. See, e.g., Frazier v. State, No. 14-22-00472-CR, 2024 WL 117395, at *5 (Tex. App.—Houston [14th Dist.] Jan. 11, 2024, pet. ref'd) (mem. op., not designated for publication) (remanding for assessment of court costs when the trial court assessed costs that should not have been assessed, but also “there were likely costs that should have been assessed”); Authorlee v. State, No. 14-20-00821-CR, 2022 WL 220267, at *4 (Tex. App.—Houston [14th Dist.] Jan. 25, 2022, pet. ref'd) (mem. op., not designated for publication) (remanding for a proper calculation of court costs when the trial court erroneously assessed some costs but did not assess other mandatory court costs); cf. Johnson, 423 S.W.3d at 396 (Cochran, J., concurring) (suggesting that “appellate courts may order an abatement to the trial court to address evidentiary sufficiency or financial ability issues”); Welch v. State, 668 S.W.3d 54, 56 (Tex. App.—Waco 2022, no pet.) (abating, over dissent, for the trial court to “review, and if necessary, correct only the assessed mandatory court costs”).

Appellant's fifth issue is sustained in part.

III. Conclusion

We affirm the judgment of conviction and sentence. We reverse the portion of the judgment assessing the $2,855 reimbursement fee and remand to the trial court for recalculation of the reimbursement fee.

FOOTNOTES

1.   We cite unpublished opinions in this decision not for precedential value, but for illustrative and comparative purposes. See Roberson v. State, 420 S.W.3d 832, 837 (Tex. Crim. App. 2013).

2.   The statute refers to reimbursable fees for “conveying the witness” and “conveying a prisoner ․ to the court or jail.” Tex. Code Crim. Proc. art. 102.011(b), (c). As used here, “convey” means “to bear from one place to another” or to “transport.” Convey, Webster's Third New International Dictionary 499 (2002).

3.   A subpoena is used to summon a person to appear before a court and testify. See Tex. Code Crim. Proc. art. 24.01(a). An attachment is a writ “commanding some peace officer to take the body of a witness and bring him before such court ․ to testify.” Id. art. 24.11; see also id. arts. 24.12, 24.14, 24.111 (describing some procedural requirements for the request and issuance of a writ of attachment under various circumstances).

Ken Wise, Justice