Opinion issued May 7, 2020




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-18-00945-CR
                             ———————————
                 MARK MICHAEL RICHARDSON, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Case No. 1557527


                                   OPINION

      Mark Michael Richardson appeals his felony conviction for driving while

intoxicated. See TEX. PENAL CODE §§ 49.04(a) (defining the offense of driving

while intoxicated), 49.04(b) (establishing that the offense is a third-degree felony if

the defendant has two prior driving while intoxicated convictions). He argues that
he received ineffective assistance of counsel, the court denied his right to due

process, and a $100 court cost levied against him is unconstitutional. We modify

the judgment and bill of costs to remove the $100 court cost and affirm the

judgment as modified.

                                   Background

      A Harris County Sheriff’s Deputy stopped Richardson for multiple traffic

violations, such as driving without headlights, failure to signal lane changes

multiple times, and speeding at 90 miles per hour. Richardson had red glassy eyes,

slurred speech, and a strong odor of an alcoholic beverage. He admitted that he had

consumed alcohol prior to driving, but he said he only had three drinks. He

displayed poor balance, difficulty complying with instructions, and became

agitated. He refused to provide a breath or blood specimen. After law enforcement

obtained a warrant, testing revealed his blood alcohol level was .164. The sample

was taken more than three hours after he was stopped.

      A grand jury indicted Richardson for the felony offense of driving while

intoxicated. In November 2017, while represented by an appointed attorney, he

pleaded guilty without an agreed punishment recommendation. In December 2018,

Richardson’s hired counsel substituted in for his appointed counsel. On January 31,

2018, an associate from the firm he hired appeared at the punishment hearing. The

associate stated that he did not intend to proceed with the hearing that day because


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he felt it would not be effective for his client. He moved to recuse the trial court

claiming bias because the trial court had reviewed the presentence report before the

punishment hearing and because the trial court had stated before hearing witnesses

that it would likely impose a sentence higher than the State’s suggestion. The trial

court denied Richardson’s oral motion, stating that Richardson’s counsel was only

trying to delay the proceeding, and the court reset the punishment hearing for the

following week.

      Richardson filed a motion to recuse the trial court, attaching the record from

the hearing and an affidavit from his attorney. The trial court denied the motion

and referred the matter to an administrative judge for hearing. In late April 2018,

Richardson filed a motion to withdraw his plea, which the court later denied. In

July 2018, the administrative judge heard the recusal motion. Another associate

from the same law firm appeared at the hearing. He claimed that he would be

ineffective if the hearing proceeded because he had not prepared for the hearing

and did not have notice of it. He stated that the associate who previously

represented Richardson had left the firm. The court responded that the law firm

had been called earlier in the week and agreed to the hearing date. The court denied

the attorney’s oral motion for a continuance. The court afforded Richardson’s

counsel an opportunity to review the relevant documents and information, held the

hearing, and denied the motion. In September 2018, the trial court held a


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punishment hearing and assessed punishment at 6 years’ imprisonment.

Richardson appeals.

                                     Due Process

      In his first issue, Richardson complains that he was denied the due process

right to a neutral judge at the recusal hearing because the court proceeded with the

hearing despite his counsel’s claim of prospective ineffectiveness. We disagree.

A.    Standard of Review

      The Fourteenth Amendment provides that the State may not “deprive any

person of life, liberty, or property, without due process of law.” U.S. CONST.

amend. XIV, § 1; see also TEX. CONST. art. I, § 19 (“No citizen of this State shall

be deprived of life, liberty, property, privileges or immunities, or in any manner

disfranchised, except by the due course of the law of the land.”). “A fair trial in a

fair tribunal is a basic requirement of due process.” Avilez v. State, 333 S.W.3d

661, 673 (Tex. App.—Houston [1st Dist.], pet. ref’d) (internal quotation and

citation removed). A trial court’s impartiality can be compromised when the judge

exhibits hostility toward the defendant or his lawyer. Id. at n.26. But not every

complaint about a judge or the conduct of a proceeding implicates constitutional

due process protections. Id. at 673. Most matters relating to judicial conduct within

the discretion afforded the court do not rise to a constitutional level. Id. at 675.




                                            4
      Richardson’s principal complaint is that the trial court did not continue the

hearing, interfering with his counsel’s ability to prepare. The record reflects that,

though Richardson moved for recusal in January 2018 and the motion was denied

in February, the hearing before the administrative judge did not take place until

July 2018. When counsel appeared and stated that he would be ineffective if the

hearing was held as scheduled because he was not prepared, the court informed

him that the firm had been called to schedule the hearing in advance and agreed

that the date was satisfactory. Rather than continuing the hearing, the trial court

allowed counsel time to review documents in the case. The record does not reflect

that the trial court interfered with Richardson’s ability to prepare for the hearing.

      Richardson also suggests that the trial court asked counsel if he was making

an oral motion for a continuance and then denied that motion, knowing that an oral

motion would not preserve the issue for appellate review. This allegation is

unsupported by the record. “‘Judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion,’ and a trial court’s opinion would not

constitute bias unless it derives from ‘an extrajudicial source . . . [or] reveals[s]

such a high degree of favoritism or antagonism as to make fair judgment

impossible.’” Avilez, 333 S.W.3d at 675 (quoting Liteky v. United States, 510 U.S.

540, 555–56 (1994)). We hold that the record does not clearly demonstrate bias or




                                           5
a violation of Richardson’s due process rights. We overrule Richardson’s first

issue.

                         Ineffective Assistance of Counsel

         In his second and third issues, Richardson contends that he received

ineffective assistance of counsel. In his second issue, he asserts that he should

receive a new trial because his original attorney rendered ineffective assistance,

causing him to plead guilty. Specifically, Richardson argues that she did not

perform an adequate investigation and did not file motions in the case. In his third

issue, Richardson contends that he received ineffective assistance from his attorney

at the recusal hearing because the attorney did not call a witness and did not file a

proper motion for continuance. We disagree.

A.       Standard of Review

         To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) counsel’s performance was deficient and (2) a reasonable

probability exists that but for counsel’s deficient performance, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687, 694 (1984). The defendant bears the burden of proof on both issues, and

failure to make either showing by a preponderance of the evidence will defeat his

ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).


                                         6
      Under the first Strickland prong, any judicial review of whether counsel’s

performance was deficient must be highly deferential to trial counsel and avoid the

deleterious effects of hindsight. Id. We begin by presuming that trial counsel

performed within professional norms. Id. We do not assume that counsel lacked a

sound reason for making the choices he did; on the contrary, the defendant must

demonstrate that no plausible reason exists for a particular act or omission. Bone v.

State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v. State, 519 S.W.3d

273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). When the record is

silent as to trial counsel’s strategy, we will not conclude that appellant received

ineffective assistance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001). Rarely will the trial record contain sufficient information

to permit a reviewing court to fairly evaluate the merits of such a serious

allegation. See Bone, 77 S.W.3d at 833. In the majority of cases, the appellant is

unable to meet the first prong of the Strickland test because the record is

underdeveloped and does not adequately reflect the alleged failings of trial

counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).

      Usually under the second Strickland prong, a defendant must show that there

is a reasonable probability that but for his counsel’s deficient performance, the


                                         7
result of the proceeding would have been different. Strickland, 466 U.S. at 694.

But when counsel’s deficient performance might have caused the waiver of a

proceeding, the defendant’s burden is to demonstrate a reasonable probability that

the deficient performance caused the defendant to waive a judicial proceeding that

he was otherwise entitled to have. Miller v. State, 548 S.W.3d 497, 499–500 (Tex.

Crim. App. 2018). The focus is on the defendant’s decision making. Id. When a

defendant argues that his counsel did not properly advise him before he pleaded

guilty, the defendant must show a reasonable probability that but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.

Id. (citing Lee v. United States, 137 S. Ct. 1958, 1965 (2017)). While the “different

outcome” standard under Strickland is relevant to the extent it sheds light on

whether the deficient performance really did affect the defendant’s decision

making, it is not the measure of prejudice. Miller, 548 S.W.3d at 500. A reasonable

probability is probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694. “If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, that course should be followed.” Id. at

697.

B.     Assistance before Guilty Plea

       Richardson complains that his plea is “tainted” because his attorney was

unable to advise him. Specifically, he claims that she did not investigate, did not


                                          8
file motions, and did not call a potential witness. He suggests that had she

investigated, she would have been aware of blood test results and a potential

exculpatory witness.

      Based on the record, we are unable to determine that trial counsel’s pre-plea

investigation fell below an objective standard of reasonableness.1 As a general

matter, no reasonable trial attorney would wholly fail to investigate the facts of a

case. See Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).

Richardson does not point to any evidence in the record showing that trial counsel

failed to investigate the facts of this case, and we have found nothing in the record

to support that contention. There is nothing in the record to support that counsel

was unaware of any blood test results. There is also nothing in the record to

indicate that counsel was either aware or unaware of a potential exculpatory

witness. Richardson, however, was aware of the witness, and it is reasonable that

counsel became aware of his existence during her representation.

      Similarly, Richardson alleges that his counsel was ineffective for failing to

file motions. In general, counsel’s failure to file pretrial motions does not result in

ineffective assistance. See Martinez v. State, 449 S.W.3d 193, 208 (Tex. App.—

1
      The record reflects that the attorney happened to be in the courtroom on another
      matter during the punishment hearing. The attorney testified during the PSI
      hearing, but the court stated that she was testifying regarding punishment, not her
      effectiveness. The court stated that it was not given notice that she would be a
      testifying witness and only granted the opportunity because she was in the
      courtroom.
                                           9
Houston [1st Dist.] 2014, pet. ref’d). Richardson does not identify any particular

motion that his counsel should have filed.

      Even if counsel’s representation was deficient, Richardson has not shown

that such deficiency caused him to forego his right to a trial by jury. See Miller,

548 S.W.3d at 502. Though not dispositive, the relative strengths and weaknesses

of a case are relevant to determining whether the defendant would have invoked

the right to trial by jury. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (stating in a

guilty plea case where the alleged error is failure to investigate, the determination

whether the defendant was prejudiced by causing him to plead guilty will depend

on the likelihood that discovery of the evidence would have led counsel to change

his recommendation as to the plea, which turns on whether it would change the

outcome of a trial).

      The evidence against Richardson was strong. He was stopped for multiple

traffic violations, such as driving without headlights, failure to signal lane changes

multiple times, and speeding at 90 miles per hour. Law enforcement observed that

he had red glassy eyes, slurred speech, and a strong odor of an alcoholic beverage.

He admitted that he had consumed alcohol prior to driving, but he said he only had

three drinks. He displayed poor balance, difficulty complying with instructions,

and became agitated. He refused to provide a breath or blood specimen. After law




                                         10
enforcement obtained a warrant, testing revealed his blood alcohol level was .164.

The sample was taken more than three hours after he was stopped.

      Richardson claimed that he blacked out and was suffering from a medical

condition, but the evidence to support blacking out was also consistent to support

consumption of alcohol. It also does not account for the various signs of alcohol

intoxication and his blood alcohol level.

      Richardson’s decision to plead guilty is also supported by the fact that

because of his criminal record, only the trial court, not the jury, could sentence him

to probation. TEX. CODE CRIM. PROC. art. 42A.0055(b)(1) (a defendant is ineligible

for community supervision recommended by a jury if he has been previously

convicted of a felony). Additionally, Richardson claims he did not know that he

was pleading guilty, but the record indicates otherwise. When he pleaded guilty,

Richardson acknowledged on the record that he had reviewed the paperwork with

his trial counsel, and that he was pleading guilty.

      Richardson has not met his burden to prove that his counsel’s performance

was deficient or that he was prejudiced by his counsel’s performance. We overrule

his second issue.

C.    Assistance at Recusal Hearing

      Richardson contends that he received ineffective assistance during the

recusal hearing before the administrative judge. Specifically, he claims that his


                                            11
counsel at that time was ineffective for not calling a previous attorney as a witness

and for failing to preserve his motion for continuance. We disagree.

      Richardson claims that recusal counsel was ineffective for failing to call his

previous attorney as a witness at the recusal hearing, but Richardson has not shown

how the outcome of the hearing would have been different if the attorney had

testified. A claim of ineffective assistance of counsel based on counsel’s failure to

call witnesses fails in the absence of a showing that such witnesses were available

to testify and that the defendant would have benefitted from their testimony.

Brennan v. State, 334 S.W.3d 64, 79 (Tex. App.—Dallas 2009, no pet.) (citing Ex

parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004)). The witness that

Richardson claims counsel should have called was an attorney who filed the

motion to recuse and subsequently left the law firm representing Richardson. Even

assuming the attorney was available, the record does not reflect what additional

testimony he would have presented that was not included in the motion or his

accompanying affidavit. Both the affidavit and a transcript of the prior proceeding

were attached to Richardson’s motion to recuse. The recusal court stated that these

materials had been considered when it denied the motion. Richardson has not

stated what details additional testimony would have provided. He has not met his

burden to show ineffective assistance on this ground.




                                         12
      Richardson also claims that the attorney was ineffective for failing to

properly file a motion for continuance. Recusal counsel made an oral request for a

continuance, which was denied. “A motion for continuance not in writing and not

sworn preserves nothing for review.” Dewberry v. State, 4 S.W.3d 735, 755 (Tex.

Crim. App. 1999). To establish ineffective assistance of counsel, the appellant

must demonstrate that the trial court would have erred in denying a properly filed

written motion. See Vaughn v. State, 888 S.W.2d 62, 74 (Tex. App.—Houston [1st

Dist.] 1994) aff’d, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996) (holding that to

prove ineffectiveness for failure to object, defendant must demonstrate that the trial

court would have erred in overruling the objection). Appellate courts review the

trial court’s decision to deny a motion for continuance for abuse of discretion.

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). A defendant must

show that he was actually prejudiced by the denial of the motion. Id.

      Richardson has not met his burden to show that he was entitled to a

continuance and that the court would have abused its discretion if it denied a

written continuance. The court allowed the attorney representing Richardson to

review the relevant documents before proceeding with the hearing. Counsel did not

alert the trial court that he was given insufficient time to do so nor did he state

specifically how he would be prospectively ineffective if the hearing proceeded.

The record does not demonstrate a sufficient reason to seek a continuance or what


                                         13
would have happened if additional time would have been given. Therefore,

Richardson has not shown that he was prejudiced by his attorney’s failure to file a

written motion. Id. We overrule Richardson’s third issue.

                         Constitutionality of Court Cost

      In his fourth issue, Richardson alleges that the “EMS Trauma Fund” cost is

facially unconstitutional because it does not relate to the administration of the

criminal-justice system. A facial challenge is an attack on the statute itself as

opposed to a particular application. Salinas v. State, 523 S.W.3d 103, 106 (Tex.

Crim. App. 2017). It is a challenge to the statute in all its applications. Id.

Richardson’s facial constitutional challenge is grounded on separation of powers

between the branches of government, which the Texas Constitution expressly

guarantees. TEX. CONST. art. II, §1. “One way the Separation of Powers provision

is violated is when one branch of government assumes or is delegated a power

more properly attached to another branch.” Salinas, 523 S.W.3d at 106–07

(internal quotation and citation removed). Although courts may not operate as tax

gatherers, which is a function reserved to the executive branch, “courts may collect

fees in criminal cases as part of its judicial function ‘if the statute under which

court costs are assessed (or an interconnected statute) provides for an allocation of

such court costs to be expended for legitimately criminal justice purposes.’” Casas




                                         14
v. State, 524 S.W.3d 921, 926 (Tex. App.—Fort Worth 2017, no pet.) (quoting

Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).

      The version of the statute authorizing the cost in effect at the time imposed

an additional $100 court cost upon conviction for an intoxication offense to be

allocated for emergency-medical services, trauma facilities, and trauma-care

systems. Act of June 1, 2003, 78th Leg., R.S., ch. 1213, § 4, 2003 Tex. Sess. Law

Serv. Ch. 1213, amended by Act of May 5, 2011, 82nd Leg., R.S., ch. 91, § 6.007,

2011 Tex. Sess. Law Serv. Ch. 91. (This statute was again amended in 2019. See

Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 2.38, 2019 Tex. Sess. Law. Serv.

Ch. 1352, current version at TEX. CODE CRIM. PROC. art. 102.0185). Attendant

statutes direct the comptroller to deposit the monies collected in an account in the

general revenue fund established for the same services, facilities, and systems. Id.;

see also TEX. HEALTH & SAFETY CODE § 773.006(a). The commissioner of state

health services is directed to use the monies deposited in the reserved account “to

fund county and regional emergency medical services, designated trauma facilities,

and trauma care systems” in accordance with certain statutory percentages and to

maintain a $500,000 reserve. TEX. HEALTH & SAFETY CODE § 773.122(a)–(f).

      Richardson urges us to follow the Fort Worth and Texarkana Courts of

Appeals, which relied on Salinas and held that the prior version of article 102.0185

of the Code of Criminal Procedure, directing the collection of the $100 “EMS


                                         15
Trauma Fund” cost, is unconstitutional. See Casas, 524 S.W.3d at 927; see also

Waddell v. State, No. 02-14-00372-CR, 2017 WL 4819373, at *1 (Tex. App.—Fort

Worth Oct. 26, 2017, no pet.) (mem. op., not designated for publication); Robinson

v. State, No. 06-17-00082-CR, 2017 WL 4655107, at *4 (Tex. App.—Texarkana

Oct. 18, 2017, pet. ref’d) (mem. op., not designated for publication). In Casas, the

Fort Worth Court of Appeals held that the statute was unconstitutional because the

Legislature did not explicitly direct that the funds be used for criminal-justice

purposes and reasoned that it was insufficient that some of the money collected

could ultimately be spent on a legitimate criminal-justice purpose, such as victims

of a drunk-driving accident. Casas, 524 S.W.3d at 927 (quoting Salinas, 523

S.W.3d at 107–109).

      We agree with our sister courts of appeals. The former version of article

102.0185 of the Code of Criminal Procedure is facially unconstitutional because

neither the statute nor its attendant statutes explicitly direct that the court cost

collected be used for a criminal-justice purpose. See Casas, 524 S.W.3d at 927. We

sustain Richardson’s fourth issue.




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                                    Conclusion

      We modify the trial court’s bill of costs to subtract the $100 “EMS Trauma

Fund” cost from the $414.00 assessed and affirm the judgment of the trial court as

modified.




                                             Peter Kelly
                                             Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.

Publish. TEX. R. APP. P. 47.2(b).




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