Opinion issued April 16, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00441-CR

———————————

JOSHUA LONDON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Case No. 1367861

MEMORANDUM OPINION

Appellant Joshua London pleaded guilty to possession of a controlled 

substance (cocaine) in an amount between one and four grams, without an agreed 

recommendation as to punishment. See TEX. HEALTH & SAFETY CODE 
2

§§ 481.102(3)(D), 481.112(c). London elected sentencing by the trial court, and he 

pleaded true to enhancement allegations that he was previously convicted of the 

felony offenses of “bail jumping” and “evading.” The trial court sentenced London 

to 25 years in prison and signed an order to withdraw funds from his inmate trust 

account for the purpose of paying his court costs. See TEX. PENAL CODE §§ 12.32, 

12.33, 12.42(b). London filed a pro se notice of appeal, along with motions for bail 

and to withdraw his guilty plea. On appeal, London argues that he was not 

adequately represented during a critical stage of the proceedings, the motion for 

new trial stage. He also argues that the statutory sheriff’s witness fees are 

unconstitutional as applied to him. 

London did not rebut the presumption of representation, and he waived his 

as-applied constitutional challenge by failing to raise it in the trial court. We 

affirm.

Background

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 changed his plea to guilty, without an agreed recommendation as to punishment. 

The trial court found him guilty and assessed punishment at 25 years in prison. 

That same day, London’s attorney submitted a fee voucher for payment.
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Twelve days after the trial court’s judgment, London filed a pro se notice of 

appeal and a motion to withdraw his guilty plea. His notice of appeal was a 

handwritten document in which he made general allegations about his counsel’s 

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 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. Similarly, three boxes were checked indicating that London was indigent, 

wished to have a court-appointed attorney and a free copy of the record, and 

requested bail. On the line provided for the defendant’s signature, the words “in 

custody” were written by hand.

London’s motion to withdraw his guilty plea alleged that his counsel was 

deficient because he failed to take “affirmative actions to preserve and protect” his

“valuable rights,” review the case with him outside of court proceedings, object to 

prosecutorial actions, and introduce evidence and testimony on his behalf. London

also alleged that “[t]here appeared to be personal bias and/or prejudice against”

him, there was a reasonable probability that the result of the trial would have been 

different but for his counsel’s errors, he “was never able to work with, assist, or 
4

even place his trust with counsel,” and his counsel “demeaned” him. Finally, he 

stated that his guilty plea was not intelligent and voluntary because highly 

prejudicial prior convictions were improperly used against him and the court 

“failed to take steps to assure [him] a fair opportunity to present [a] defense.” The 

motion was not verified or accompanied by an affidavit or sworn statement setting 

forth a factual basis to support his motion. The record does not include a ruling on 

the motion to withdraw the guilty plea, nor does it include a motion to withdraw 

from representation signed by trial counsel. 

This court abated the appeal to allow the trial court to correct an error in the 

certification of London’s right to appeal. Approximately three months after 

London filed the motion to withdraw his guilty plea and a notice of appeal, the trial 

court held an abatement hearing. London and his trial counsel appeared at the 

hearing. London confirmed that he wished to pursue his appeal. During an 

exchange between London’s counsel and the court pertaining to the certification of 

the right to appeal, the attorney stated, “I’ve told my client they’ll appoint an 

attorney for him.” The trial court appointed appellate counsel and certified the right 

to appeal, and we reinstated the appeal.

Analysis

London raises two issues on appeal. He argues that he was not represented 

during the motion for new trial stage, a critical stage of the proceedings. He further 
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contends that the statutory witness fee, as applied to him, violated his rights to 

confrontation and compulsory process.

I. Adequacy of representation during motion for new trial stage

London argues that he was unrepresented during the 30-day period after 

entry of judgment during which he could have filed a motion for new trial. To 

support this contention, he relies on the following facts: (1) his attorney submitted 

a voucher for payment on the day of the trial court’s judgment, (2) he filed his own 

notice of appeal and motion to withdraw his guilty plea, and (3) an unsigned 

motion to withdraw dated 19 days after the trial court’s judgment appears in the 

record. 

A motion for new trial must be filed no later than 30 days after a trial court 

“imposes or suspends sentence in open court.” TEX. R. APP. P. 21.4(a). This is “a 

critical stage of the proceedings” during which a defendant “has a constitutional 

right to counsel.” Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007). 

When a defendant is represented by counsel during a trial, there is “a rebuttable 

presumption that this counsel continued to adequately represent the defendant 

during this critical stage.” Id. “The rebuttable presumption of adequate 

representation arises, in part, because appointed counsel remains as the defendant’s 

counsel for all purposes until expressly permitted to withdraw, even if the 

appointment is for trial only.” Smallwood v. State, 296 S.W.3d 729, 734 (Tex. 
6

App.—Houston [14th Dist.] 2009, no pet.); see TEX. CODE CRIM. PROc. art. 

26.04(j)(2) (“An attorney appointed under this subsection shall . . . represent the 

defendant until charges are dismissed, the defendant is acquitted, appeals are 

exhausted, or the attorney is permitted or ordered by the court to withdraw as 

counsel for the defendant after a finding of good cause is entered on the record.”).

The appellant has the burden to produce evidence to rebut the presumption 

of continued adequate representation. Green v. State, 264 S.W.3d 63, 69 (Tex. 

App.—Houston [1st Dist.] 2007, pet. ref’d). A pro se filing, without more, is 

insufficient to rebut the presumption of representation because rather than 

conclusively establishing a lack of representation, it raises the issue of hybrid 

representation. Id. at 70. To rebut the presumption of continued adequate 

representation, the appellant must produce evidence that his attorney did not advise 

him about the potential merits of a motion for new trial or about his appellate 

rights. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). An 

appellant’s pro se filing of a notice of appeal, which shows he had knowledge of 

the appellate process and deadlines, has been held to support a presumption that his 

counsel informed him of his rights. See Bearman v. State, 425 S.W.3d 328, 330 

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

In addition, an appellant who does successfully rebut the presumption of 

representation during the motion for new trial period must show that he was 
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harmed. Cooks, 240 S.W.3d at 911. In a motion for new trial a defendant may raise 

matters not determinable from the record and establish grounds upon which he

may be entitled to relief. See Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. 

App. 2009). For example, a defendant could argue in a motion for new trial that his 

guilty plea was involuntary based on erroneous information conveyed by his 

counsel. See Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.] 

2009, pet. ref’d). An appellant also can demonstrate harm from the lack of 

adequate representation during the motion for new trial stage by showing that he 

has a “facially plausible” claim that could have been raised in a motion for new 

trial. See Cooks, 240 S.W.3d at 911–12.

Conversely, a conclusory allegation that trial counsel failed to call or 

subpoena witnesses or conduct an investigation—without setting forth what 

exculpatory facts would have been elicited or determined—is not sufficient to raise 

a facially plausible claim of ineffective assistance of counsel. See Cooks, 240 

S.W.3d at 912; Bearman, 425 S.W.3d at 331; Ex parte Ramirez, 280 S.W.3d 848, 

853 (Tex. Crim. App. 2007) (per curiam) (defendant challenging trial counsel’s 

failure to call a particular witness must show that witness was available to testify 

and testimony would have benefited him); Stokes v. State, 298 S.W.3d 428, 432 

(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (defendant challenging trial 
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counsel’s failure to investigate must show “what the investigation would have 

revealed that reasonably could have changed the result of the case”).

In this case, London was represented by appointed counsel at trial. The

record does not conclusively demonstrate that his counsel moved to withdraw from 

representation. The only motion to withdraw appearing in the record was not 

signed by London, his trial counsel, or the trial court judge. The Code of Criminal 

Procedure requires pleadings and motions filed on behalf of a defendant to be 

signed. See TEX. CODE CRIM. PROC. art. 1.052. London argues that if the unsigned 

motion “has any meaning” then he “was definitely denied counsel for 11 days of 

the 30 day motion period.” We decline to impute to London’s counsel an unsigned 

form notice of appeal signifying a motion to withdraw. Cf. id. art. 1.052. Even if 

the form was checked and filed by the attorney, the record does not indicate that a 

motion to withdraw was granted.

London argues that his trial counsel’s submission of a fee payment voucher 

shows that he was unrepresented during the motion for new trial stage. Although 

the voucher itself does not appear in the record, the docket sheet indicates that 

London’s counsel submitted a request for payment on the date that judgment was 

rendered. Submission of a voucher for payment of fees is not one of the ways the 

Code of Criminal Procedure provides for terminating representation when an 

attorney is appointed by the court to represent an indigent defendant. See id. art. 
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26.04(j)(2). This fact alone does not demonstrate that London’s counsel stopped 

representing him at that time, especially in light of the record which does not show 

that London’s counsel was expressly permitted to withdraw prior to the abatement 

hearing. See Smallwood, 296 S.W.3d at 734. London’s trial counsel appeared at the 

abatement hearing and told the court that he had informed his “client” that he 

would be appointed new counsel for appeal. This leads to a reasonable conclusion 

that at the time of the abatement hearing, London’s trial counsel considered him to 

be a client and had continued to give him legal advice. Neither the attorney fee 

voucher nor the unsigned motion to withdraw rebut the presumption that London 

was represented during the motion for new trial stage. See Oldham, 977 S.W.2d at 

363.

London also argues that his pro se notice of appeal and motion to withdraw 

his guilty plea show that he was unrepresented. He urges us to follow Prudhomme 

v. State, 28 S.W.3d 114 (Tex. App.—Texarkana 2000, no pet.), abate his appeal, 

and remand the case for the filing of a motion for new trial. This is problematic for 

two reasons. First, in Prudhomme, the Texarkana court of appeals held that a 

defendant’s pro se motion to withdraw his guilty plea was effectively a pro se 

motion for new trial, the filing of which rebutted the presumption that he was 

adequately counseled about his appellate rights. See Prudhomme, 28 S.W.3d at 

120. In Green v. State, 264 S.W.3d 63 (Tex. App.—Houston [1st Dist] 2007, pet. 
10

ref’d), this court rejected Prudhomme’s holding that a pro se motion for new trial 

rebuts the presumption of continued representation by trial counsel because a “pro 

se filing, without more, raises the issue of hybrid representation, not a lack of 

representation.” Green, 264 S.W.3d at 70. 

The second problematic aspect of London’s argument is that his case is 

factually distinguishable from Prudhomme, in which the pro se motion for new 

trial set forth a factual basis for the defendant’s claim of ineffective assistance of 

counsel. Prudhomme, 28 S.W.3d at 120–21. Prudhomme argued that he would not 

have pleaded guilty but for his counsel’s erroneous advice that he would be given a 

probated sentence, a circumstance that the court of appeals labeled “a facially 

plausible claim that his guilty plea was involuntary.” Id. Conversely, London has 

not asserted a facially plausible claim that should have been raised in a motion for 

new trial. London’s pro se motion to withdraw his guilty plea consists of 

conclusory, general assertions that amount to allegations of failure to investigate 

and proffer evidence on his behalf. His motion does not set forth any factual basis 

for these allegations: he does not point out any potentially exculpatory evidence or 

identify any witnesses who could have testified on his behalf and summarize what 

would have been the substance of their testimony. London’s conclusory allegations 

are not sufficient to raise a facially plausible claim of ineffective assistance of 

counsel. See Cooks, 240 S.W.3d at 911–12 (holding that deprivation of counsel 
11

during motion for new trial stage was “harmless beyond a reasonable doubt” 

because defendant did not raise a facially plausible claim of ineffective assistance 

of counsel); Bearman, 425 S.W.3d at 331. 

Though London’s pro se filings may raise an issue of hybrid representation, 

they also demonstrate that London had some 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. TEX. CODE CRIM. PROC. 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 
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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.
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Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice 

Panel consists of Justices Jennings, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).