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London, Joshua

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,

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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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.

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