PD ________

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

Houston, Texas 77002

Phone: (713) 368-0016

Fax: (713) 368-9278

Counsel for Appellant

January 25, 2015

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

CLERK
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

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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 complieswith 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)

2015 WL 1778583

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND

SIGNING OF OPINIONS.

DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).

Court of Appeals of Texas, 

Houston (1st Dist.

Joshua London, Appellant

v.

The State of Texas, Appellee

NO. 01–13–00441–CR | Opinion issued April 16, 2015

On Appeal from the 230th District Court, Harris County,

Texas, Trial Court Case No. 1367861

Attorneys and Law Firms

Jani J. Wood, for Joshua London.

Alan Curry, Eric Kugler, Devon Anderson, for The State of

Texas.

Panel consists of Justices Jennings, Massengale, and Brown.

MEMORANDUM OPINION

Michael Massengale, Justice

*1 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 §§

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 hisinmate 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.

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 formincludes 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

 © 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

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 even place histrust 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.

*2 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 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). Thisis “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 expresslypermitted to withdraw, even if the appointment

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

(Tex. 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 himabout 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 himof hisrights. See

Bearman v. State, 425 S.W.3d 328, 330 (Tex.App.—Houston

[1st Dist.] 2010, pet. ref'd).

*3 In addition, an appellant who does successfully rebut the

presumption of representation during the motion for new trial

period must show that he was 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

 © 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

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 witnesswas 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 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. 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.

*4 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. 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 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

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London v. State, Not Reported in S.W.3d (2015)

knowledge of his appellate rights and support a presumption

that histrial counsel advised himabout 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 withdrawhis 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 hissecond 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

witnessis 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 himand 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 himbecause 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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