London, Joshua ( 2015 )


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  •                                                                            PD-0480-15
    PD-0480-15                                COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 4/30/2015 1:46:05 PM
    Accepted 5/1/2015 10:39:45 AM
    ABEL ACOSTA
    PD ________                                                CLERK
    IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    _______________________________________________
    JOSHUA LONDON,
    Appellant,
    v.
    THE STATE OF TEXAS,
    Appellee.
    _______________________________________________
    On Petition for Discretionary Review from the
    First Court of Appeals in No. 01-13-00441-CR
    affirming the conviction in cause number 1367861,
    From the 230th District Court of Harris County, Texas
    _______________________________________________
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    _______________________________________________
    ORAL ARGUMENT NOT REQUESTED             ALEXANDER BUNIN
    Chief Public Defender
    Harris County, Texas
    JANI MASELLI WOOD
    Assistant Public Defender
    Harris County, Texas
    TBN. 00791195
    1201 Franklin Street, 13th Floor
    May 1, 2015                         Houston, Texas 77002
    Phone: (713) 368-0016
    Fax: (713) 368-9278
    Counsel for Appellant
    January 25, 2015
    IDENTITY OF PARTIES AND COUNSEL
    APPELLANT:                         Joshua London
    TDCJ# 01856820
    Beto Unit
    1391 FM 3328
    Tennessee Colony, TX 75880
    PRESIDING JUDGE:                   Hon. Brad Hart, Presiding Judge
    Hon. Jim Anderson, Visiting Judge
    230th District Court
    Harris County, Texas
    1201 Franklin, 16th floor
    Houston, Texas 77002
    TRIAL PROSECUTOR:                  Mr. Chris Morton
    APPELLATE PROSECUTOR:              Mr. Eric Kugler
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin, 6th Floor
    Houston, Texas 77002
    DEFENSE COUNSEL AT TRIAL:          Mr. Charles A. Brown, Jr.
    708 Main Street, Suite 7
    Houston, Texas 77002
    DEFENSE COUNSEL ON APPEAL:         Jani Maselli Wood
    Assistant Public Defender
    Harris County, Texas
    1201 Franklin, 13th Floor
    Houston, Texas 77002
    -2-
    TABLE OF CONTENTS
    PAGE
    Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    6
    Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    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?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    The Court of Appeals held error was waived. . . . . . . . . . . . . . . . . . . . . . . . . 8
    The error was preserved based upon precedent from this Court.. . . . . . . . . 8
    No objection was necessary in the trial court.. . . . . . . . . . . . . . . . . . . . . . . . 9
    -3-
    Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
    Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
    Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
    -4-
    INDEX OF AUTHORITIES
    PAGE
    Cases:
    Cardenas v. State,
    
    423 S.W.3d 396
    (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
    Johnson v. State,
    
    423 S.W.3d 385
    (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
    Landers v. State,
    
    402 S.W.3d 252
    (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9
    London v. State,
    01-13-00441-CR, 
    2015 WL 1778583
          (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no. pet. h.). . . . . . . . . . . . . 7
    Statutes and Rules:
    TEX. CODE CRIM. PROC. ART. 102.011(A)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
    TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    -5-
    STATEMENT REGARDING ORAL ARGUMENT
    Oral argument is not requested.
    STATEMENT OF THE CASE
    This is an appeal from a conviction for possession of cocaine 1-4 grams. (C.R.
    at 77). Mr. London pleaded guilty without an agreed recommendation. (C.R. at 66).
    The judgment reflects he pleaded true to two enhancement paragraphs. (C.R. at 77).
    The court reporter was waived for the plea as well as for the sentencing. (C.R. at 106).
    The trial court sentenced Mr. London to 25 years imprisonment. (C.R. at 77). The
    trial court did not originally certify Mr. London’s right to appeal. (C.R. at 94). Mr.
    London timely filed a notice of appeal. (C.R. at 81). After the case was abated, the
    trial court provided a new certification giving Mr. London permission to appeal.
    (Supp. C.R. at 5).
    STATEMENT OF THE PROCEDURAL HISTORY
    In an unpublished opinion, the First Court of Appeals affirmed Mr. London’s
    conviction.     London v. State, 01-13-00441-CR, 
    2015 WL 1778583
                     (Tex.
    App.—Houston [1st Dist.] Apr. 16, 2015, no. pet. h.). No motion for rehearing was
    filed. This petition is timely if filed on or before May 16, 2015.
    -6-
    GROUND FOR REVIEW
    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?
    REASON FOR REVIEW
    The First Court of Appeals has decided an important question of state
    or federal law in a way that conflicts with the applicable decisions of the
    Court of Criminal Appeals or the Supreme Court of the United States.
    TEX. R. APP. P. 66.3(c).
    STATEMENT OF FACTS RELATIVE TO GROUND RAISED
    Mr. London was ordered to pay court costs totaling $329 including a $35
    “Summoning Witness/Mileage” cost. (C.R. at 80). The cost bill was prepared
    nineteen days after the judgment was filed. (C.R. at 77-80). There is no record this
    cost bill was ever sent to Mr. London or his attorney. The record and cost bill are
    silent as to whether the $35 fee was for the State’s subpoenas or the defense
    subpoenas.
    The Code of Criminal Procedure mandates the following fee:
    (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.
    -7-
    TEX. CODE CRIM. PROC. ART. 102.011(A)(3)(emphasis supplied).
    “Summoning Witness/Mileage” cost is one of a number of costs that courts
    order defendants to pay upon conviction of a crime. Mr. London challenged this fee
    as unconstitutional as-applied to him because he is indigent.
    The Court of Appeals held error was waived.
    The Court of Appeals refused to consider this challenge, holding the error was
    waived because it was not raised in the trial court:
    London argues, with little more explanation, that article 102.011(a)(3) is
    unconstitutional as applied to him because he is indigent. London did
    not raise this complaint in the trial court. A defendant may not raise for
    the first time on appeal an as-applied challenge to constitutionality of a
    statute. Curry v. State, 
    910 S.W.2d 490
    , 496 (Tex.Crim.App.1995).
    However, he argues that under Johnson v. State, 
    423 S.W.3d 385
    (Tex.
    Crim. App.2014), error preservation is not required in this circumstance.
    In Johnson, the Court of Criminal Appeals held that a challenge to the
    factual basis for assessment of statutory court costs could be raised for
    the first time on appeal. 
    Id. at 390.
    The Court did not address whether
    a challenge to the constitutionality of the underlying statute could be
    raised for the first time on appeal, and it did not overrule Curry. See 
    id. Because London
    did not raise his as-applied constitutional challenges in
    the trial court, we hold that this issue is waived, and we overrule it.
    London v. State, 
    2015 WL 1778583
    , at *4.
    The error was preserved based upon precedent from this Court.
    This Court explained that challenges to court costs can be raised for the first
    time on appeal and “[c]onvicted defendants have constructive notice of mandatory
    court costs set by statute and the opportunity to object to the assessment of court
    -8-
    costs against them for the first time on appeal or in a proceeding under Article
    103.008 of the Texas Code of Criminal Procedure.” Cardenas v. State, 
    423 S.W.3d 396
    ,
    399 (Tex. Crim. App. 2014). In a companion case decided the same day, Johnson v.
    State, the Court further explained that because the cost bill is most likely unavailable
    at the time of the judgment, an “Appellant need not have objected at trial to raise a
    claim challenging the bases of assessed costs on appeal.” Johnson v. State, 
    423 S.W.3d 385
    , 391 (Tex. Crim. App. 2014).
    No objection was necessary in the trial court.
    This case is similar to Landers v. State where this Court explained that
    challenging the court cost for an attorney pro tem could be raised for the first time on
    appeal, holding:
    Since the fees were not imposed in open court and she was not required
    to file a motion for new trial, she has not forfeited the complaint on
    appeal.
    Landers v. State, 
    402 S.W.3d 252
    , 255 (Tex. Crim. App. 2013). In Landers, the cost bill
    was available six days after the judgment and this Court explained:
    No notice of this document was given to the appellant or her attorney
    and no further proceedings were held. Consequently, the appellant was
    not given an opportunity to object to the imposition of these costs.
    Since she was not given the opportunity, the absence of an objection is
    not fatal to her appeal.
    -9-
    
    Landers, 402 S.W.3d at 255
    . This Court went on to declare that Landers was not
    required to object in a motion for new trial because there was no notice the cost bill
    had ever been created and it would “allow a judge to de facto alter the statutory time
    frame for motions for new trial.” 
    Landers, 402 S.W.3d at 255
    .
    The cost bill in this case was created on May 22, 2013, which was 19 days after
    the judgment was entered on May 3, 2013. (C.R. 77-80). This Court has held that Mr.
    London was not required to file a motion for new trial in order to preserve his
    challenge. The Court of Appeals erred in determining this issue was unpreserved.
    PRAYER FOR RELIEF
    For the reasons states above, Mr. London prays that this Court grant his
    petition and remand to the Court of Appeals for consideration of the merits of Mr.
    London’s challenge to the $35 Sheriff’s fee.
    -10-
    Respectfully submitted,
    Jani Maselli Wood
    _______________________________
    JANI J. MASELLI WOOD
    Assistant Public Defender
    Harris County, Texas
    Jani.Maselli@pdo.hctx.net
    TBN. 00791195
    1201 Franklin Street, 13th Floor
    Houston, Texas 77002
    Phone: (713) 368-0016
    Fax: (713) 368-9278
    Attorney for Appellant
    Joshua London
    -11-
    CERTIFICATE OF SERVICE
    Pursuant to Tex. R. App. Proc. 9.5, this certifies that on April 30, 2015, a copy of the
    foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the Harris
    County District Attorney’s Office through texfile.com at the following address:
    Eric Kugler
    Assistant District Attorney
    1201 Franklin Street, 6th Floor
    Houston, TX 77002
    kugler_eric@dao.hctx.net
    Lisa McMinn
    Lisa.McMinn@SPA.texas.gov
    Jani Maselli Wood
    _________________________________
    JANI J. MASELLI WOOD
    -12-
    CERTIFICATE OF COMPLIANCE
    Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
    petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).
    1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this
    petition contains 1128 words printed in a proportionally spaced typeface.
    2.     This petition is printed in a proportionally spaced, serif typeface using
    Garamond 14 point font in text and Garamond 14 point font in footnotes produced
    by Corel WordPerfect software.
    3.     Undersigned counsel understands that a material misrepresentation in
    completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
    Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
    the person who signed it.
    Jani Maselli Wood
    ____________________________
    JANI J. MASELLI WOOD
    -13-
    Appendix A
    Opinion London v. State
    London v. State, Not Reported in S.W.3d (2015)
    “bail jumping” and “evading.” The trial court sentenced
    
    2015 WL 1778583
                                   London to 25 years in prison and signed an order to withdraw
    Only the Westlaw citation is currently available.            funds from his inmate trust account for the purpose of paying
    his court costs. See Tex. Penal Code §§ 12.32, 12.33,
    SEE TX R RAP RULE 47.2 FOR DESIGNATION AND                      12.42(b). London filed a pro se notice of appeal, along with
    SIGNING OF OPINIONS.                                 motions for bail and to withdraw his guilty plea. on appeal,
    London argues that he was not adequately represented during
    DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).                    a critical stage of the proceedings, the motion for new trial
    stage. He also argues that the statutory sheriff's witness fees
    Court of Appeals of Texas,                        are unconstitutional as applied to him.
    Houston (1st Dist.
    London did not rebut the presumption of representation, and
    he waived his as-applied constitutional challenge by failing to
    Joshua London, Appellant                             raise it in the trial court. We affirm.
    v.
    The State of Texas, Appellee                                                  Background
    NO. 01–13–00441–CR | Opinion issued April 16, 2015
    Two days after London's arrest for possession of a controlled
    substance, the trial court found that he was unable to afford an
    attorney and appointed counsel to represent him. London
    initially pleaded not guilty, but after a jury was impaneled he
    On Appeal from the 230th District Court, Harris County,
    changed his plea to guilty, without an agreed recommendation
    Texas, Trial Court Case No. 1367861
    as to punishment. The trial court found him guilty and
    assessed punishment at 25 years in prison. That same day,
    Attorneys and Law Firms
    London's attorney submitted a fee voucher for payment.
    Jani J. Wood, for Joshua London.
    Twelve days after the trial court's judgment, London filed a
    pro se notice of appeal and a motion to withdraw his guilty
    Alan Curry, Eric Kugler, Devon Anderson, for The State of
    plea. His notice of appeal was a handwritten document in
    Texas.
    which he made general allegations about his counsel's
    Panel consists of Justices Jennings, Massengale, and Brown.
    deficient performance and the fairness of the sentence
    imposed by the court. The record also includes a form notice
    of appeal, but it was not signed by either London or his trial
    counsel. The preprinted form includes check boxes to indicate
    whether the “undersigned attorney” “moves to withdraw” or
    MEMORANDUM OPINION
    will continue to represent the defendant on appeal. The box
    for “moves to withdraw” was checked, but the lines provided
    for an attorney's signature and contact information are blank.
    Michael Massengale, Justice
    Similarly, three boxes were checked indicating that London
    was indigent, wished to have a court-appointed attorney and
    *1 Appellant Joshua London pleaded guilty to possession of
    a free copy of the record, and requested bail. On the line
    a controlled substance (cocaine) in an amount between one
    provided for the defendant's signature, the words “in custody”
    and four grams, without an agreed recommendation as to
    were written by hand.
    punishment. See Tex. Health & Safety Code §§
    481.102(3)(D), 481.112(c). London elected sentencing by the
    London's motion to withdraw his guilty plea alleged that his
    trial court, and he pleaded true to enhancement allegations
    counsel was deficient because he failed to take “affirmative
    that he was previously convicted of the felony offenses of
    actions to preserve and protect” his “valuable rights,” review
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                               15
    -15-
    London v. State, Not Reported in S.W.3d (2015)
    the case with him outside of court proceedings, object to              A motion for new trial must be filed no later than 30 days
    prosecutorial actions, and introduce evidence and testimony            after a trial court “imposes or suspends sentence in open
    on his behalf. London also alleged that “[t]here appeared to           court.” Tex. R. App. P. 21.4(a). This is “a critical stage of the
    proceedings” during which a defendant “has a constitutional
    be personal bias and/or prejudice against” him, there was a
    right to counsel.” Cooks v. State, 
    240 S.W.3d 906
    , 911
    reasonable probability that the result of the trial would have         (Tex.Crim.App.2007). When a defendant is represented by
    been different but for his counsel's errors, he “was never able        counsel during a trial, there is “a rebuttable presumption that
    to work with, assist, or even place his trust with counsel,” and       this counsel continued to adequately represent the defendant
    his counsel “demeaned” him. Finally, he stated that his guilty         during this critical stage.” 
    Id. “The rebuttable
    presumption of
    plea was not intelligent and voluntary because highly                  adequate representation arises, in part, because appointed
    prejudicial prior convictions were improperly used against             counsel remains as the defendant's counsel for all purposes
    until expressly permitted to withdraw, even if the appointment
    him and the court “failed to take steps to assure [him] a fair
    is for trial only.” Smallwood v. State, 
    296 S.W.3d 729
    , 734
    opportunity to present [a] defense.” The motion was not                (Tex. App.—Houston [14th Dist.] 2009, no pet.); see Tex.
    verified or accompanied by an affidavit or sworn statement             Code Crim. Proc. art. 26.04(j)(2) (“An attorney appointed
    setting forth a factual basis to support his motion. The record        under this subsection shall ... represent the defendant until
    does not include a ruling on the motion to withdraw the guilty         charges are dismissed, the defendant is acquitted, appeals are
    plea, nor does it include a motion to withdraw from                    exhausted, or the attorney is permitted or ordered by the court
    representation signed by trial counsel.                                to withdraw as counsel for the defendant after a finding of
    good cause is entered on the record.”).
    *2 This court abated the appeal to allow the trial court to
    correct an error in the certification of London's right to
    The appellant has the burden to produce evidence to rebut the
    appeal. Approximately three months after London filed the
    presumption of continued adequate representation. Green v.
    motion to withdraw his guilty plea and a notice of appeal, the
    State, 
    264 S.W.3d 63
    , 69 (Tex.App.—Houston [1st Dist.]
    trial court held an abatement hearing. London and his trial
    2007, pet. ref'd). A pro se filing, without more, is insufficient
    counsel appeared at the hearing. London confirmed that he
    to rebut the presumption of representation because rather than
    wished to pursue his appeal. During an exchange between
    conclusively establishing a lack of representation, it raises the
    London's counsel and the court pertaining to the certification
    issue of hybrid representation. 
    Id. at 70.
    To rebut the
    of the right to appeal, the attorney stated, “I've told my client
    presumption of continued adequate representation, the
    they'll appoint an attorney for him.” The trial court appointed
    appellant must produce evidence that his attorney did not
    appellate counsel and certified the right to appeal, and we
    advise him about the potential merits of a motion for new trial
    reinstated the appeal.
    or about his appellate rights. See Oldham v. State, 
    977 S.W.2d 354
    , 363 (Tex.Crim.App.1998). An appellant's pro se
    Analysis
    filing of a notice of appeal, which shows he had knowledge of
    the appellate process and deadlines, has been held to support
    London raises two issues on appeal. He argues that he was not
    a presumption that his counsel informed him of his rights. See
    represented during the motion for new trial stage, a critical
    Bearman v. State, 
    425 S.W.3d 328
    , 330 (Tex.App.—Houston
    stage of the proceedings. He further contends that the
    [1st Dist.] 2010, pet. ref'd).
    statutory witness fee, as applied to him, violated his rights to
    confrontation and compulsory process.
    *3 In addition, an appellant who does successfully rebut the
    presumption of representation during the motion for new trial
    I. Adequacy of representation during motion for new
    period must show that he was harmed. Cooks, 240 S.W.3d at
    trial stage
    911. In a motion for new trial a defendant may raise matters
    London argues that he was unrepresented during the 30–day
    not determinable from the record and establish grounds upon
    period after entry of judgment during which he could have
    which he may be entitled to relief. See Hobbs v. State, 298
    filed a motion for new trial. To support this contention, he
    S.W.3d 193, 199 (Tex.Crim.App.2009). For example, a
    relies on the following facts: (1) his attorney submitted a
    defendant could argue in a motion for new trial that his guilty
    voucher for payment on the day of the trial court's judgment,
    plea was involuntary based on erroneous information
    (2) he filed his own notice of appeal and motion to withdraw
    conveyed by his counsel. See Starz v. State, 
    309 S.W.3d 110
    ,
    his guilty plea, and (3) an unsigned motion to withdraw dated
    118 (Tex.App.—Houston [1st Dist.] 2009, pet. ref'd). An
    19 days after the trial court's judgment appears in the record.
    appellant also can demonstrate harm from the lack of
    adequate representation during the motion for new trial stage
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   16
    -16-
    London v. State, Not Reported in S.W.3d (2015)
    by showing that he has a “facially plausible” claim that could        be a client and had continued to give him legal advice.
    have been raised in a motion for new trial. See Cooks, 240            Neither the attorney fee voucher nor the unsigned motion to
    S.W.3d at 911–12.                                                     withdraw rebut the presumption that London was represented
    during the motion for new trial stage. See Oldham, 977
    Conversely, a conclusory allegation that trial counsel failed to      S.W.2d at 363.
    call or subpoena witnesses or conduct an
    investigation—without setting forth what exculpatory facts            *4 London also argues that his pro se notice of appeal and
    would have been elicited or determined—is not sufficient to           motion to withdraw his guilty plea show that he was
    raise a facially plausible claim of ineffective assistance of         unrepresented. He urges us to follow Prudhomme v. State, 28
    counsel. See 
    Cooks, 240 S.W.3d at 912
    ; Bearman, 
    425 S.W.3d 114
    (Tex.App.—Texarkana 2000, no pet.), abate his
    S.W.3d at 331; Ex parte Ramirez, 
    280 S.W.3d 848
    , 853                  appeal, and remand the case for the filing of a motion for new
    (Tex.Crim.App.2007) (per curiam) (defendant challenging               trial. This is problematic for two reasons. First, in
    trial counsel's failure to call a particular witness must show        Prudhomme, the Texarkana court of appeals held that a
    that witness was available to testify and testimony would have        defendant's pro se motion to withdraw his guilty plea was
    benefited him); Stokes v. State, 
    298 S.W.3d 428
    , 432                  effectively a pro se motion for new trial, the filing of which
    (Tex.App.—Houston [14th Dist.] 2009, pet. ref'd) (defendant           rebutted the presumption that he was adequately counseled
    challenging trial counsel's failure to investigate must show          about his appellate rights. See 
    Prudhomme, 28 S.W.3d at 120
    .
    “what the investigation would have revealed that reasonably           In Green v. State, 
    264 S.W.3d 63
    (Tex.App.—Houston [1st
    could have changed the result of the case”).                          Dist] 2007, pet. ref'd), this court rejected Prudhomme 's
    holding that a pro se motion for new trial rebuts the
    In this case, London was represented by appointed counsel at          presumption of continued representation by trial counsel
    trial. The record does not conclusively demonstrate that his          because a “pro se filing, without more, raises the issue of
    counsel moved to withdraw from representation. The only               hybrid representation, not a lack of representation.” Green,
    motion to withdraw appearing in the record was not signed 
    by 264 S.W.3d at 70
    .
    London, his trial counsel, or the trial court judge. The Code
    of Criminal Procedure requires pleadings and motions filed            The second problematic aspect of London's argument is that
    on behalf of a defendant to be signed. See Tex. Code Crim.            his case is factually distinguishable from Prudhomme, in
    Proc. art. 1.052. London argues that if the unsigned motion           which the pro se motion for new trial set forth a factual basis
    “has any meaning” then he “was definitely denied counsel for          for the defendant's claim of ineffective assistance of counsel.
    11 days of the 30 day motion period.” We decline to impute            
    Prudhomme, 28 S.W.3d at 120
    –21. Prudhomme argued that
    to London's counsel an unsigned form notice of appeal                 he would not have pleaded guilty but for his counsel's
    signifying a motion to withdraw. Cf. 
    id. art. 1.052.
    Even if the      erroneous advice that he would be given a probated sentence,
    form was checked and filed by the attorney, the record does           a circumstance that the court of appeals labeled “a facially
    not indicate that a motion to withdraw was granted.                   plausible claim that his guilty plea was involuntary.” 
    Id. Conversely, London
    has not asserted a facially plausible
    London argues that his trial counsel's submission of a fee            claim that should have been raised in a motion for new trial.
    payment voucher shows that he was unrepresented during the            London's pro se motion to withdraw his guilty plea consists of
    motion for new trial stage. Although the voucher itself does          conclusory, general assertions that amount to allegations of
    not appear in the record, the docket sheet indicates that             failure to investigate and proffer evidence on his behalf. His
    London's counsel submitted a request for payment on the date          motion does not set forth any factual basis for these
    that judgment was rendered. Submission of a voucher for               allegations: he does not point out any potentially exculpatory
    payment of fees is not one of the ways the Code of Criminal           evidence or identify any witnesses who could have testified
    Procedure provides for terminating representation when an             on his behalf and summarize what would have been the
    attorney is appointed by the court to represent an indigent           substance of their testimony. London's conclusory allegations
    defendant. See 
    id. art. 26.04(j)(2).
    This fact alone does not         are not sufficient to raise a facially plausible claim of
    demonstrate that London's counsel stopped representing him            ineffective assistance of counsel.See Cooks, 240 S.W.3d at
    at that time, especially in light of the record which does not        911–12 (holding that deprivation of counsel during motion
    show that London's counsel was expressly permitted to                 for new trial stage was “harmless beyond a reasonable doubt”
    withdraw prior to the abatement hearing. See Smallwood, 296           because defendant did not raise a facially plausible claim of
    S.W.3d at 734. London's trial counsel appeared at the                 ineffective assistance of counsel); Bearman, 425 S.W.3d at
    abatement hearing and told the court that he had informed his         331.
    “client” that he would be appointed new counsel for appeal.
    This leads to a reasonable conclusion that at the time of the         Though London's pro se filings may raise an issue of hybrid
    abatement hearing, London's trial counsel considered him to           representation, they also demonstrate that London had some
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 17
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    London v. State, Not Reported in S.W.3d (2015)
    knowledge of his appellate rights and support a presumption
    that his trial counsel advised him about the appellate timeline.
    See 
    Bearman, 425 S.W.3d at 330
    ; 
    Green, 264 S.W.3d at 70
    .
    We conclude that London's motion to withdraw his guilty plea
    does not rebut the presumption that he was represented during
    the motion for new trial stage, and we overrule his first issue.
    II. As-applied challenge to statutory fees
    In his second issue, London argues that, as applied to him, the
    assessment of $35 in statutory witness fees violated the
    Confrontation Clause and the right to compulsory process.
    Article 102.011 of the Code of Criminal Procedure sets forth
    statutory fees for services performed by a peace officer which
    are to be paid by a defendant convicted of a felony or
    misdemeanor. T ex. C ode C rim. P roc. art. 102.011. Among
    other things, it imposes a fee of $5 for summoning a witness.
    
    Id. art. 102.011(a)(3).
    This provision assesses $5 each time a
    witness is summoned. See Ramirez v. State, 
    410 S.W.3d 359
    ,
    366 (finding $100 fee for summoning witnesses was
    supported by sufficient evidence when record showed that it
    was incurred 20 times).
    A criminal defendant has the right to be confronted with the
    witnesses against him and the right to compulsory process for
    obtaining witnesses in his favor. U.S. Const., amends. VI &
    XIV; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 1.05.
    London argues, with little more explanation, that article
    102.011(a)(3) is unconstitutional as applied to him because he
    is indigent. London did not raise this complaint in the trial
    court. A defendant may not raise for the first time on appeal
    an as-applied challenge to constitutionality of a statute. Curry
    v. State, 
    910 S.W.2d 490
    , 496 (Tex.Crim.App.1995).
    However, he argues that under Johnson v. State, 
    423 S.W.3d 385
    (Tex.Crim.App.2014), error preservation is not required
    in this circumstance. In Johnson, the Court of Criminal
    Appeals held that a challenge to the factual basis for
    assessment of statutory court costs could be raised for the first
    time on appeal. 
    Id. at 390.
    The Court did not address whether
    a challenge to the constitutionality of the underlying statute
    could be raised for the first time on appeal, and it did not
    overrule Curry. See 
    id. Because London
    did not raise his
    as-applied constitutional challenges in the trial court, we hold
    that this issue is waived, and we overrule it.
    Conclusion
    *5 We affirm the judgment of the trial court.
    End of Document                                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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