Opinion issued July 30, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00368-CR
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EDIN PALACIOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1510153
MEMORANDUM OPINION
Edin Palacios pleaded guilty to felony murder, and the court sentenced him
to 32 years’ imprisonment. On appeal, he asserts that the trial court erred by
refusing his request on the day of trial for additional time to retain a new attorney.
He also challenges the constitutionality as applied to him of two court costs
assessed following his conviction. We affirm.
Background
Palacios was indicted for felony murder following a deadly car accident in
May 2016. While speeding away from a police officer, Palacios’s car collided with
another car, killing its passenger. Because he was indigent, the court appointed
counsel to represent him. On February 28, 2018, Palacios filed a pro se motion
requesting that the court dismiss his appointed attorney and appoint new counsel.
At a pretrial hearing on the day of trial, he reiterated his request to the court. The
court responded that the case was “preferentially set for trial,” that he had two
years to hire an attorney, and that his appointed attorney was one of the best
attorneys in the courthouse. When the court did not replace his appointed counsel,
he requested time to hire an attorney instead. The trial court denied his request.
Later that day, Palacios pleaded guilty without an agreed punishment
recommendation. After a punishment hearing, the court sentenced him to 32 years’
imprisonment.
He asserts two issues on appeal: (1) the trial court erred by refusing his
request for more time to hire an attorney and (2) certain fees assessed as court costs
are unconstitutional as applied to him because he is indigent. We affirm.
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Choice of Counsel
In his first issue, Palacios alleges that the trial court erred by denying his
request for more time to hire an attorney. We disagree.
A. Applicable Law and Standard of Review
The denial of a continuance resulting in an appellant claiming a deprivation
of his counsel of choice is reviewed for abuse of discretion. See Rosales v. State,
841 S.W.2d 368, 374 (Tex. Crim. App. 1992). “The right to counsel of one’s
choice is not absolute, and may under some circumstances be forced to bow to ‘the
general interest in the prompt and efficient administration of justice.’” Id. (quoting
Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). For example, “an
accused may not wait until the day of trial to demand different counsel or to
request that counsel be dismissed so that he may retain other counsel.” Webb v.
State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976).
B. Analysis
In March 2016, the court appointed counsel for Palacios. On March 7, 2018,
Palacios filed a motion asking the trial court to appoint new counsel, but he did not
request a hearing. At a pretrial hearing on April 2, 2018, he told the court about his
motion. When the court explained that he did not have the right to request a
different appointed attorney, he requested time to hire an attorney. The court
denied his request. The court explained that Palacios did not ask to hire an attorney
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during the two years that the case was pending, but only on the day that the case
was preferentially set for trial.
The Court of Criminal Appeals outlined the following nonexclusive factors
that inform whether to grant a continuance due to the absence of counsel of
defendant’s choice:
(1) the length of delay requested;
(2) whether other continuances were requested and whether they
were denied or granted;
(3) the length of time in which the accused’s counsel had to prepare
for trial;
(4) whether another competent attorney was prepared to try the
case;
(5) the balanced convenience to inconvenience to the witnesses, the
opposing counsel, and the trial court;
(6) whether the delay is for legitimate or contrived reasons;
(7) whether the case was complex or simple;
(8) whether the denial of the motion resulted in some identifiable
harm to the defendant;
(9) the quality of legal representation actually provided.
Rosales, 841 S.W.2d at 374 (quoting Ex parte Windham, 634 S.W.2d 718, 720
(Tex. Crim. App. 1982)); James v. State, 506 S.W.3d 560, 565 (Tex. App.—
Houston [1st Dist.] 2016, no pet.).
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Considering these factors as applied to this case, we observe that:
(1) Palacios requested “some time” to retain new counsel but did
not specify the length of delay he needed;
(2) the docket sheet reflected that Palacios had not requested resets
before;
(3) appointed counsel represented Palacios for about two years;
(4) no other attorney was prepared to try the case;
(5) the record is silent as to the convenience to witnesses and
counsel but the court noted that the case was “preferentially set
for trial” on the date of Palacios’s oral request to hire an
attorney and the request was made 11 months after the case was
initially set for trial;
(6) Palacios’s initial motion for new appointed counsel contained
his reasons, but his oral request to hire an attorney came only
after he learned he would not be allowed to switch appointed
attorneys;
(7) the case was somewhat complex and involved evading arrest by
car as well as death and injury resulting from a crash caused by
Palacios;
(8) the record does not show that the court’s denial of the request
resulted in any identifiable harm to Palacios;
(9) despite his contention in the written motion, Palacios received
quality legal representation as demonstrated by his attorney’s
knowledge of his case and the motions she filed.
On this record, the court did not abuse its discretion in denying Palacios’s request.
Constitutionality of Court Costs for Indigent Defense
In his second issue, Palacios challenges the constitutionality of the statutory
court costs for indigent defense pursuant to TEX. LOC. GOV’T CODE §§ 133.102 and
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133.107, as applied to him in this case, as a violation of his constitutional right to
the appointment of counsel as an indigent defendant. He disputes the $2.00 fee to
fund indigent defense representation and $23.73 of the $133.00 consolidated court
cost allotted for the fair defense fund. We hold that he has not met his burden to
establish an as-applied challenge to the statutes.
A. Applicable Law and Standard of Review
The Sixth Amendment to the United States Constitution provides that, in all
criminal prosecutions, “the accused shall enjoy the right . . . to have the assistance
of counsel for his defense.” U.S. CONST. amend VI. The Due Process Clause of the
Fourteenth Amendment guarantees the same right to assistance of counsel,
including the right to the appointment of counsel in the case of an indigent
defendant in criminal prosecutions. Thomas v. State, 550 S.W.2d 64, 67 (Tex.
Crim. App. 1997).
A litigant raising an as-applied challenge to a statute concedes the statute’s
general constitutionality, “but asserts that the statute is unconstitutional as applied
to his particular facts and circumstances.” State ex rel. Lykos v. Fine, 330 S.W.3d
904, 910 (Tex. Crim. App. 2011). The burden rests on the challenger to establish
the statute’s unconstitutionality. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim.
App. 2002). “Courts must evaluate the statute as it has been applied in practice
against the particular challenger.” Lykos, 33 S.W.3d at 912. Because the scope of
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an as-applied challenge is narrow, a court of appeals may not “entertain
hypothetical claims” or consider the potential impact of the statute on a potential
future claimant, third party, or anyone other than the challenger presently before
the court. Id. at 912.
B. Analysis
Palacios contests the constitutionality of two statutes as applied to him. First,
section 133.107(a) of the Local Government Code provides:
A person convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a court cost,
in addition to other costs, a fee of $2 to be used to fund indigent
defense representation through the fair defense account established
under Section 79.031, Government Code.
TEX. LOC. GOV’T CODE § 133.107(a). Second, section 133.102 requires that a
person convicted of a felony pay $133 in court costs, 17.8448 percent ($23.73) of
which is allocated to the fair defense account. TEX. LOC. GOV’T CODE
§ 133.102(a),(e). The fair defense account funds the Texas Indigent Defense
Commission. See TEX. GOV’T CODE § 79.034(a).
Palacios asserts that these statutory fees are unconstitutional as applied to
him because he is indigent. He relies on the Sixth Amendment and Gideon v.
Wainwright, 372 U.S. 335 (1963). He argues that “a man too poor to hire a lawyer
should not be left at the mercy of the power of the State.” Yet he provides no
argument or evidence that he was deprived of his right to counsel by the prospect
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of being assessed a total of $25.73 in court costs toward indigent defense at the
conclusion of trial if he were convicted. See London v. State, 526 S.W.3d 596, 601
(Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). He does not suggest that the fees
caused him to become indigent, and he provides no explanation of how his
indigence itself could constitute the relevant harm.
Palacios’s appeal is premised on a conclusory assertion that it is
unconstitutional to assess court costs against an indigent defendant. But several
courts of appeals have held that indigence does not preclude the recovery of
statutory court costs, so long as they are not required to be paid in advance. See
London, 526 S.W.3d at 601 (stating same and listing in footnote cases from sister
courts of appeals holding same). In this particular case, which raises an as-applied
challenge, we need not decide whether indigence is a categorical barrier to
assessing or collecting any particular cost of court.
Palacios has not met his burden of showing that his constructive notice of
the contingent possibility that in the event of his conviction he would be assessed a
fee to support indigent defense had the actual effect, as applied to him in this case,
of denying him the right to counsel. See London, 526 S.W.3d at 602. We overrule
his second issue.
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Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Keyes, Kelly, and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
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