Opinion issued November 7, 2017




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-16-00664-CR
                           ———————————
                 JOHNNY MELCHOR MACIAS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1481127


                                 OPINION

      A jury convicted appellant, Johnny Melchor Macias, of the third-degree

felony offense of indecency with a child and, after appellant pleaded true to the

allegations in two enhancement paragraphs, assessed his punishment at thirty-five
years’ confinement.1 In three issues, appellant contends that (1) his trial counsel

rendered constitutionally ineffective assistance of counsel when he failed to object

to the forensic interviewer’s testimony concerning the credibility of the child

complainant; (2) the record does not demonstrate that the visiting judge who

presided over the trial took the constitutionally-required oath of office; and (3) the

$80 in court costs assessed against him for “summoning witness/mileage” is

unconstitutional as applied to him because it violated the confrontation clause and

the right to compulsory process.

      We affirm.

                                    Background

      Appellant and L.P. dated for over thirteen years, and they had four children

together, including the complainant, D.M., who was fourteen years old at the time

of trial. By the summer of 2014, appellant and L.P. had ended their relationship, but

their children still saw appellant. On June 16, 2014, when D.M. was twelve years

old, L.P. left her children alone with her cousin, and when she returned to the house

she found D.M. in tears. D.M. told L.P. that her cousin had said inappropriate things

to her and had made her feel uncomfortable, but D.M. kept crying and eventually

told L.P. that “two other people . . . were inappropriate with her.” D.M. told L.P.

that her eighteen-year-old cousin was exposing himself to her and that her father,


1
      See TEX. PENAL CODE ANN. § 21.11(a)(2) (West 2011).
                                          2
appellant, “was exposing himself to her and was trying to get her to touch him.” L.P.

testified that she had never heard anything about appellant’s touching D.M.

inappropriately other than his attempting to force her to touch him. L.P. immediately

called the police. In September 2014, L.P. took D.M. to the Children’s Assessment

Center for a forensic interview and a medical exam.

      Initially, the State charged appellant solely with the offense of indecency with

a child by exposure. D.M. met with the prosecutor in June 2016, and, as a result of

this meeting, the State also charged appellant with the offense of indecency with a

child by contact.

      Appellant’s trial was presided over by the Honorable Reagan Clark, a retired

district judge who had taken senior status and was sitting by assignment. The record

does not reflect that appellant ever objected to Judge Clark’s presiding over his trial,

and he never raised any complaint in the trial court concerning Judge Clark’s

qualifications.

      D.M. testified at trial that, in June 2014, she told L.P. that appellant was

touching her and exposing himself to her. D.M. could not remember the exact age

that she was when appellant began acting inappropriately with her, but she estimated

that she was around seven years old. D.M. testified that she would be in the living

room watching television with her brothers and sister, and appellant would call her

into his bedroom, close the door, and expose himself to her. She stated that appellant


                                           3
would grab her hand and try to make her touch his penis. D.M. also testified that

appellant would reach underneath her shirt and touch her breasts and he would touch

her vagina, both over and underneath her clothes. D.M. testified that this behavior

occurred for years and did not stop until appellant had begun dating his current

girlfriend.

       Erika Gomez conducted D.M.’s forensic interview at the Children’s

Assessment Center. Gomez testified that D.M. spoke with her about an incident

involving her father. Gomez and the State then had the following exchange:

       [The State]:      Again, without going into detail as to what [D.M.]
                         told you, at some point you end the interview; is that
                         correct?
       [Gomez]:          Yes.
       [The State]:      Now, during your interview with her, did you find
                         her to be credible in what she was telling you?
       [Gomez]:          Yes.
       [The State]:      When your interview was over, did you find her to
                         be consistent with what she told you in the interview
                         room, with what she had told police officers and
                         what you had learned during your staffing process?
       [Gomez]:          I cannot recall the staffing. So, I don’t know, per
                         se, what the law enforcement said. So, I can’t recall.
       [The State]:      That’s fair. But you found her to be credible when
                         you were done; and after you spoke with police
                         officers, you had no reason to disbelieve she was a
                         credible little girl?
       [Gomez]:          Yes.

Defense counsel did not object to this testimony.
                                         4
      On cross-examination, Gomez testified that D.M. did not report that appellant

had touched her inappropriately. Gomez also testified that “[i]t’s not [her] job to say

whether a child is lying or telling the truth” and that she has had occasions where

she believed a child was lying to her during an interview and occasions where she

could not tell if a child was lying. When asked how she can tell whether a child is

being truthful, Gomez responded: “Consistency. The details, the sensories. A lot of

it goes into the sensory details. And if more than one time the child is able to detail

more than one time and it is different, you know, something different was said or

something different was done.” Defense counsel asked Gomez how she could

determine if consistency existed when she does not view police reports before

conducting forensic interviews, and Gomez stated, “Because the child narrates to me

everything that has happened to him or her and they’re able to take me through

different times.”

      Dr. Marcella Donaruma, the attending physician at the Children’s Assessment

Center, met with D.M. Dr. Donaruma testified that D.M. disclosed to her that

appellant had exposed himself to her and tried to make her touch his penis. Dr.

Donaruma asked D.M. if appellant had ever touched her inappropriately, and D.M.

responded, “No.” Dr. Donaruma did not conduct a physical exam of D.M.

      Appellant testified on his own behalf. He testified that he did not have a good

relationship with L.P. after they separated, and L.P. usually spoke with his girlfriend,


                                           5
instead of him, over matters concerning their children. Appellant testified that he

first learned about D.M.’s allegations against him in 2015 when Child Protective

Services called him for an interview. He stated that he cooperated with their

investigation and with the police investigation. He testified that D.M.’s allegations

were not truthful, and he denied exposing himself to D.M., trying to make D.M.

touch him, or touching her.

      Ultimately, the jury found appellant guilty of indecency with a child by

exposure, but it was unable to reach a verdict on the charge of indecency with a child

by contact, and the trial court declared a mistrial as to that charge. After appellant

pleaded true to the allegations in two enhancement paragraphs, the jury assessed his

punishment at thirty-five years’ confinement.

      After the trial court signed the judgment of conviction, a total of $759 in court

costs was assessed against appellant, which included $80 for “summoning

witness/mileage.” Appellant did not file a motion for new trial or other post-

judgment motion. This appeal followed.

                         Ineffective Assistance of Counsel

      In his first issue, appellant contends that his trial counsel rendered ineffective

assistance during the guilt-innocence phase of trial when Gomez, the forensic

interviewer, twice testified that she found D.M. to be credible, but trial counsel did




                                           6
not object. Appellant further contends that this testimony constitutes fundamental

error.

A.       Standard of Review

         To establish that trial counsel rendered ineffective assistance, an appellant

must demonstrate, by a preponderance of the evidence, that (1) his counsel’s

performance was deficient and (2) there is a reasonable probability that the result of

the proceeding would have been different but for his counsel’s deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010);

Cannon v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s

failure to make either of the required showings of deficient performance or sufficient

prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong.”). “If it is easier

to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.” Cox v. State, 389 S.W.3d 817, 819

(Tex. Crim. App. 2012) (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

         The appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness based on prevailing professional norms.


                                           7
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State,

9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland requires

the appellant to demonstrate prejudice—“a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at

812. A reasonable probability is a probability sufficient to undermine confidence in

the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, the appellant must

overcome the presumption that the challenged conduct constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review

is highly deferential to counsel. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002). To prevail on an ineffective assistance claim, the appellant must

provide an appellate record that affirmatively demonstrates that counsel’s

performance was not based on sound trial strategy. Mallett v. State, 65 S.W.3d 59,

63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813 (holding that record must

affirmatively demonstrate alleged ineffectiveness). In the majority of cases, the

record on direct appeal is undeveloped and cannot adequately reflect the motives

behind trial counsel’s actions. Mallet, 65 S.W.3d at 63. Because the reasonableness

of trial counsel’s choice often involves facts that do not appear in the appellate


                                         8
record, the Court of Criminal Appeals has stated that trial counsel should ordinarily

be given an opportunity to explain his actions before a court reviews the record and

determines that counsel was ineffective. See Rylander, 101 S.W.3d at 111; Bone,

77 S.W.3d at 836.      However, when no reasonable trial strategy could justify

counsel’s conduct, counsel’s performance falls below an objective standard of

reasonableness as a matter of law, regardless of whether the record adequately

reflects counsel’s subjective reasons for acting as he did. Andrews v. State, 159

S.W.3d 98, 102 (Tex. Crim. App. 2005).

B.    Failure to Object to Testimony Concerning Credibility of Complainant

      To be admissible, expert testimony must “assist” the trier of fact. Schutz v.

State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); see TEX. R. EVID. 702 (“A witness

who is qualified as an expert by knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise if the expert’s scientific, technical,

or other specialized knowledge will help the trier of fact to understand the evidence

or to determine a fact in issue.”). Expert testimony must aid, but not supplant, the

jury’s decision. Schutz, 957 S.W.2d at 59. “Expert testimony does not assist the

jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s

allegations.” Id. (quoting Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App.

1993)); Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (“It is generally improper for a witness to offer a direct opinion as to the


                                           9
truthfulness of another witness and such opinion is therefore inadmissible

evidence.”). The Court of Criminal Appeals has further held that an expert who

testifies that a class of persons to which the victim belongs, such as child sexual-

abuse complainants, is truthful is “essentially telling the jury that they can believe

the victim in the instant case as well,” and this is not expert testimony that will assist

the trier of fact. Yount, 872 S.W.2d at 711; Fuller v. State, 224 S.W.3d 823, 832

(Tex. App.—Texarkana 2007, no pet.) (stating that experts on child sexual abuse are

not “human lie detectors”).

      Here, Erika Gomez testified that she conducted the forensic interview of D.M.

During her testimony, she had the following exchange with the State:

      [The State]:         Again, without going into detail as to what [D.M.]
                           told you, at some point you end the interview; is that
                           correct?
      [Gomez]:             Yes.
      [The State]:         Now, during your interview with her, did you find
                           her to be credible in what she was telling you?
      [Gomez]:             Yes.
      [The State]:         When your interview was over, did you find her to
                           be consistent with what she told you in the interview
                           room, with what she had told police officers and
                           what you had learned during your staffing process?
      [Gomez]:             I cannot recall the staffing. So, I don’t know, per
                           se, what the law enforcement said. So, I can’t recall.
      [The State]:         That’s fair. But you found her to be credible when
                           you were done; and after you spoke with police


                                           10
                           officers, you had no reason to disbelieve she was a
                           credible little girl?
      [Gomez]:             Yes.

Appellant did not file a motion for new trial, and, thus, the record is silent concerning

trial counsel’s strategy in failing to object to this testimony. The State agrees with

appellant that this testimony constituted an impermissible direct opinion concerning

the truthfulness of D.M. The State disagrees, however, that defense counsel’s failure

to object to this testimony constituted ineffective assistance of counsel.

      Texas courts, including this Court, have previously held that defense

counsel’s failure to object to direct opinion testimony concerning the credibility of

a witness constitutes deficient performance because no reasonable trial strategy

would justify allowing this type of testimony before the jury. See, e.g., Lopez v.

State, 315 S.W.3d 90, 101–02 (Tex. App.—Houston [1st Dist.] 2010), rev’d, 343

S.W.3d 137 (Tex. Crim. App. 2011); Lane v. State, 257 S.W.3d 22, 27–29 (Tex.

App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that trial counsel’s failure to

object to improper opinion testimony constituted deficient performance but did not

prejudice defendant); Fuller, 224 S.W.3d at 835–36 (holding that trial counsel’s

failure to object to improper opinion testimony concerning child’s truthfulness

constituted deficient performance because no conceivable strategy or tactic would

justify allowing this testimony). However, the Court of Criminal Appeals reversed

this Court’s decision in Lopez, holding that because the record was silent as to why

                                           11
trial counsel failed to object to the improper opinion testimony (as well as to

inadmissible testimony from multiple outcry witnesses), the defendant had failed to

meet his burden under the first prong of Strickland to demonstrate deficient

performance. See 343 S.W.3d at 143–44; see also Menefield v. State, 363 S.W.3d

591, 593 (Tex. Crim. App. 2012) (stating, in case with ineffective assistance claim

based on confrontation clause, that court did not know why counsel failed to object

on confrontation grounds “because the record is silent on the matter” and holding

that record therefore failed to show deficient performance).

      In this case, appellant did not file a motion for new trial or other post-judgment

motion that raised his claim of ineffective assistance. Instead, he raised this claim

for the first time on direct appeal. While appellant is permitted to do this, the record

in this case is silent concerning trial counsel’s reasons for failing to object to

Gomez’s testimony regarding D.M.’s credibility.          In the absence of evidence

concerning trial counsel’s reasons for failing to object to this opinion testimony, we

conclude that appellant has failed to meet his burden under Strickland to show, by a

preponderance of the evidence, that his trial counsel rendered deficient performance.

See Lopez, 343 S.W.3d at 143–44; see also Menefield, 363 S.W.3d at 593 (stating,

while holding that silent record did not demonstrate deficient performance, that

“[n]either trial counsel nor the State have been given an opportunity” to respond to

defendant’s ineffective assistance allegations raised for first time on direct appeal).


                                          12
      Furthermore, even if the record is sufficient to determine that trial counsel’s

failure to object to Gomez’s testimony constituted deficient performance, appellant

has not demonstrated, by a preponderance of the evidence, that he was prejudiced

by this failure. To demonstrate prejudice, appellant was required to show that a

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

of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; Thompson, 9 S.W.3d at 812. Appellant makes no such showing, instead

merely arguing that “there is no fair assurance that [appellant’s] unique and diverse

frailties would not have warranted a different verdict or a less harsh sentence had the

State’s expert not explicitly vouched for the complainant’s credibility.”

      This case, like many of the other cases in which courts have held that

counsel’s failure to object to direct expert opinions concerning the credibility of the

child complainant constituted deficient performance that prejudiced the defendant,

essentially involved a “swearing match” between the complainant, D.M., and

appellant, with no physical evidence or other eyewitness testimony to corroborate

D.M.’s allegations, and, thus, D.M.’s credibility was the ultimate issue before the

jury. See Fuller, 224 S.W.3d at 837; Sessums v. State, 129 S.W.3d 242, 248 (Tex.

App.—Texarkana 2004, pet. ref’d); Miller v. State, 757 S.W.2d 880, 884–85 (Tex.

App.—Dallas 1988, pet. ref’d). However, the cases from other courts, and even

Lopez from this Court, all involved situations in which multiple expert witnesses


                                          13
testified concerning the complainant’s credibility and that testimony was heavily

emphasized during closing argument. See Lopez, 315 S.W.3d at 101–02 (noting that

three witnesses testified to complainant’s outcry statements, two witnesses testified

that they believed complainant was truthful, and State “focused heavily” on

testimony during argument); Fuller, 224 S.W.3d at 837 (noting that four of State’s

five witnesses testified in some manner that child complainant was truthful and

credible witness and that trial counsel failed to object when State emphasized

testimony during argument); Sessums, 129 S.W.3d at 247–48 (noting that four

experts testified concerning complainant’s credibility and State emphasized in

argument that complainant must not be lying because he had convinced four experts

that he was telling truth); Miller, 757 S.W.2d at 885 (noting that three witnesses,

including two experts, testified to complainant’s credibility, and one expert testified

that she had “exceptional ability to judge truthfulness”).

      Here, appellant complains only of Gomez’s testimony on two occasions that

she found D.M. to be credible.2 Neither the State nor defense counsel emphasized,


2
      We note that this Court has, in two unpublished memorandum opinions, held that a
      defendant had not established prejudice as a result of trial counsel’s failure to object
      to a single witness’s improper opinion testimony concerning the child complainant’s
      credibility. See James v. State, No. 01-13-00770-CR, 2014 WL 2767396, at *3–4
      (Tex. App.—Houston [1st Dist.] June 17, 2014, pet. ref’d) (mem. op., not designated
      for publication); Rivera v. State, No. 01-10-00098-CR, 2010 WL 5187713, at *7–8
      (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, pet. ref’d) (expressly distinguishing
      this Court’s decision in Lopez and noting that opinion testimony from single lay
      witness was not “a barrage” of inadmissible testimony designed to support
      complainant’s credibility).
                                             14
or even mentioned, this testimony during argument. Instead, the State focused on

the consistency of D.M.’s statements to her mother, Gomez, and Dr. Donaruma.

Furthermore, we note that while the jury convicted appellant of the offense of

indecency with a child by exposure, it failed to reach a verdict on the offense of

indecency with a child by contact, indicating that the jury conducted its own review

of D.M.’s credibility and did not believe all of her testimony. See Schutz v. State,

63 S.W.3d 442, 445 (Tex. Crim. App. 2001) (noting, in holding that erroneous

admission of improper opinion testimony was harmless, that jury convicted

defendant of one charge but acquitted him of another, indicating that jury did not

“unconditionally believe” complainant, and that record did not support conclusion

that jury allowed improper expert opinion testimony “to supplant its own decision”).

      We therefore conclude that appellant has not established by a preponderance

of the evidence that a reasonable probability exists that, but for counsel’s failure to

object to Gomez’s testimony concerning D.M.’s credibility, the result of the

proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; Thompson, 9 S.W.3d at 812. We hold that appellant has not established that

his trial counsel rendered constitutionally ineffective assistance. See Strickland, 466

U.S. at 687, 104 S. Ct. at 2064; Perez, 310 S.W.3d at 892–93; Cannon, 252 S.W.3d

at 348–49.




                                          15
      Appellant also argues that, under Blue v. State, Gomez’s testimony

“irreparably invaded the province of the jury as to the credibility of witnesses” and

that this constitutes fundamental error to which appellant was not required to object

in the trial court. See 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.)

(stating that trial judge’s comments tainted defendant’s presumption of innocence in

front of venire and constituted “fundamental error of constitutional dimension” that

required no objection to preserve error for appellate review). As the State points out,

however, the Court of Criminal Appeals has subsequently held that Blue was a

fractured decision in which it “is not possible to ascertain a majority holding or the

narrowest ground or rule that commands a majority of the court” and therefore Blue

has no precedential value, although it may be used as persuasive authority. See

Unkart v. State, 400 S.W.3d 94, 100–01 (Tex. Crim. App. 2013). This case is

factually distinguishable from Blue, which involved statements by the trial court

during voir dire that discussed efforts by the defendant and the State to reach a plea

agreement and the court’s preference that defendants plead guilty. See 41 S.W.3d at

130. We therefore will not treat the trial court’s admission of Gomez’s testimony

concerning D.M.’s credibility as fundamental error requiring no objection to

preserve the complaint for appellate review. See Brumit v. State, 206 S.W.3d 639,

644 (Tex. Crim. App. 2006) (noting that applicable test for determining when




                                          16
appellate court may consider unassigned error is familiar standard set forth in Marin

v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)).

        We overrule appellant’s first issue.

                           Visiting Judge’s Oath of Office

        In his second issue, appellant contends that the record does not reflect that the

visiting judge who presided over the trial took the constitutionally-required oath of

office. He argues that, as a result, the judgment of conviction entered against him is

void.

        The Texas Constitution requires that all elected and appointed officers take

two distinct oaths before beginning to perform the duties of their office. TEX. CONST.

art. XVI, § 1(a)–(b) (setting out oath of office and “anti-bribery” oath); see Prieto

Bail Bonds v. State, 994 S.W.2d 316, 320 (Tex. App.—El Paso 1999, pet. ref’d)

(holding that senior judges are “appointed officers” and must take oaths required by

Article XVI, Section 1); see also Murphy v. State, 95 S.W.3d 317, 319 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (noting that El Paso court in Prieto Bail Bonds

held that constitution requires visiting judges to take required oaths to have authority

to act on particular assignment). A challenge to a trial judge’s legal qualifications

may be raised for the first time on appeal. Murphy, 95 S.W.3d at 320 (citing Wilson

v. State, 977 S.W.2d 379, 380 n.3 (Tex. Crim. App. 1998)).




                                            17
      Appellant relies on Prieto Bail Bonds to argue that Judge Clark, as a retired

senior judge, was required to take the constitutional oaths of office and, because the

record fails to demonstrate that Judge Clark did so, Judge Clark was not qualified to

act in this case and appellant’s conviction was void. Assuming, without deciding,

that retired senior judges are required to take the constitutional oaths of office prior

to beginning their assignments, this Court and the Fourteenth Court of Appeals have

held on several occasions that “it has long been a ‘cardinal rule’ of appellate

procedure in Texas that we ‘must indulge every presumption in favor of the

regularity of the proceedings and documents’ in the trial court.” Murphy, 95 S.W.3d

at 320 (emphasis in original) (quoting McCloud v. State, 527 S.W.2d 885, 887 (Tex.

Crim. App. 1975)); see Simon v. State, 525 S.W.3d 798, 799–800 (Tex. App.—

Houston [14th Dist.] 2017, no pet.); see also Nealey v. State, No. 01-15-00999-CR,

2017 WL 3389636, at *4 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, no pet. h.)

(mem. op., not designated for publication); Murphy v. Countrywide Home Loans,

Inc., 199 S.W.3d 441, 444 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)

(following rationale of Murphy v. State in civil context).

      The presumption of regularity is a judicial construct that requires an appellate

court, “absent evidence of impropriety,” to indulge every presumption in favor of

the regularity of the trial court’s judgment. Murphy, 95 S.W.3d at 320 (emphasis in

original) (quoting Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000)). “We


                                          18
have consistently upheld the ‘presumption of regularity of the judgment and the

proceedings absent a showing to the contrary.’” Id. (quoting Dusenberry v. State,

915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d)). The burden

is on the appellant to overcome the presumption of regularity. Id. In Murphy, we

expressly held that the presumption of regularity of trial court judgments and

proceedings “applies to appellate challenges of visiting trial court judges for alleged

failures to take their constitutionally required oaths.” Id. We further held that an

appellant who raises such a challenge “must make a prima facie showing that the

trial judge did not take the required oaths before we will consider the issue on the

merits.” Id.; see Simon, 525 S.W.3d at 800 (“Merely alleging a failure to take oaths

is not sufficient to overcome the presumption of regularity.”).

      Here, appellant contends that the record does not affirmatively demonstrate

that Judge Clark, a retired senior judge, took the constitutionally-required oaths of

office, and, thus, Judge Clark was without authority to act and the judgment of

conviction is void. Appellant points to no evidence that Judge Clark failed to take

the oaths of office. Instead, he merely alleges, unsupported by any proof in the

record, that Judge Clark did not take the required oaths. Appellant bears the burden

of presenting evidence of an impropriety to overcome the presumption of regularity

of the trial court’s judgment and proceedings. See Murphy, 95 S.W.3d at 320; see

also Nealey, 2017 WL 3389636, at *5–6 (noting that because nothing in record


                                          19
indicated that visiting judge did not take constitutionally-required oaths, record did

not support defendant’s contention that visiting judge could not lawfully preside

over his trial); Simon, 525 S.W.3d at 800 (stating that defendant did not cite to any

proof in record that visiting judge did not take required oaths of office and that mere

allegation of failure to take oaths was insufficient to overcome presumption of

regularity). Because appellant has pointed to no evidence in the record that Judge

Clark did not take the oaths of office, we hold that appellant has not overcome the

presumption of regularity of the trial court judgment and proceedings. See Murphy,

95 S.W.3d at 320.

      We overrule appellant’s second issue.3

       As-Applied Challenge to Constitutionality of Certain Court Costs

      Finally, in his third issue, appellant contends that the assessment of $80 in

court costs against him for “summoning witnesses/mileage” was unconstitutional as

applied to him because he is indigent and requiring him to pay this item of costs

violated his confrontation rights and his right to compulsory process.


3
      To the extent appellant argues that the appellate record must affirmatively
      demonstrate that a visiting judge took the oaths of office, we note that a panel of
      this Court has recently stated, in an unpublished opinion, that “[t]he mere absence
      of proof in the record that a visiting judge took the judicial oath of office does not
      overcome the presumption” of regularity. See Smith v. State, No. 01-15-01055-CR,
      2017 WL 929544, at *1 (Tex. App.—Houston [1st Dist.] Mar. 9, 2017, pet. ref’d)
      (mem. op., not designated for publication). We agree. Appellant cites no authority
      requiring that the appellate record affirmatively demonstrate that visiting judges
      took the oaths of office prior to beginning their assignments. We decline to impose
      such a requirement here.
                                            20
      The Sixth Amendment to the United States Constitution provides that in all

criminal prosecutions, the accused shall enjoy the right “to be confronted with the

witnesses against him” and “to have compulsory process for obtaining witnesses in

his favor.” U.S. CONST. amend. VI. Similarly, the Texas Constitution provides that

in all criminal prosecutions the accused shall “be confronted by the witnesses against

him and shall have compulsory process for obtaining witnesses in his favor.” TEX.

CONST. art. I, § 10.

      The Confrontation Clause protects a criminal defendant’s right to physically

face those who testify against him as well as his right to conduct cross-examination.

Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998 (1987). The “essential

purpose” of the Confrontation Clause is

      to prevent deposition and ex parte affidavits, such as were sometimes
      admitted in civil cases, being used against the prisoner in lieu of a
      personal examination and cross-examination of the witness in which
      the accused has an opportunity, not only of testing the recollection and
      sifting the conscience of the witness, but of compelling him to stand
      face to face with the jury in order that they may look at him, and judge
      by his demeanor upon the stand and the manner in which he gives his
      testimony whether he is worthy of belief.

Woodall v. State, 336 S.W.3d 634, 641–42 (Tex. Crim. App. 2011) (quoting Mattox

v. United States, 156 U.S. 237, 242–43, 15 S. Ct. 337, 339 (1895)). The Compulsory

Process Clause guarantees “the right to the government’s assistance in compelling

the attendance of favorable witnesses at trial and the right to put before a jury

evidence that might influence the determination of guilt.” Ritchie, 480 U.S. at 56,
                                          21
107 S. Ct. at 1000.      The Court of Criminal Appeals has held that this right

“guarantees only compulsory process for obtaining witnesses whose testimony

would be both material and favorable to the defense.” Coleman v. State, 966 S.W.2d

525, 527–28 (Tex. Crim. App. 1998) (citing United States v. Valenzuela-Bernal, 458

U.S. 858, 867, 102 S. Ct. 3440, 3446 (1982)). The defendant bears the burden of

demonstrating materiality and favorability, for if the burden was not placed on the

defendant, “frivolous and annoying requests [c]ould make the trial endless and

unduly burdensome on the Court and all officers thereof.” Id. at 528 (quoting Ross

v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983)).

      The constitutionality of a criminal statute is a question of law that we review

de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). A litigant who

raises an “as applied” challenge to the constitutionality of a statute, as appellant does

here, concedes the statute’s general constitutionality, but “asserts that the statute is

unconstitutional as applied to his particular facts and circumstances.” See State ex

rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). We presume that

the statute is valid and that the Legislature has not acted unreasonably or arbitrarily.

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). Thus, the burden rests

upon the individual challenging the statute to demonstrate its unconstitutionality.

Id.; see Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim. App. 2016). We must

evaluate the statute as it has been applied in practice against the particular challenger.


                                           22
Lykos, 330 S.W.3d at 912. We may not entertain hypothetical claims, and it is not

sufficient to show that the statute may operate unconstitutionally against the

challenger or someone in a similar position in another case. Id.

      Code of Criminal Procedure article 42.16 requires, in cases in which the

punishment is other than a fine, that the trial court’s judgment assess costs against

the defendant and “order the collection thereof as in other cases.” TEX. CODE CRIM.

PROC. ANN. art. 42.16 (West 2006). “Only statutorily authorized court costs may be

assessed against a criminal defendant.” Johnson v. State, 423 S.W.3d 385, 389 (Tex.

Crim. App. 2014). A “mandatory” court cost is a cost, other than attorney’s fees,

“that is a predetermined, legislatively mandated obligation imposed upon

conviction.” Id. Court costs are “not part of the guilt or sentence of a criminal

defendant, nor must they be proven at trial; rather, they are ‘a nonpunitive

recoupment of the costs of judicial resources expended in connection with the trial

of the case.’” Id. at 390 (quoting Armstrong v. State, 340 S.W.3d 759, 767 (Tex.

Crim. App. 2011)). Convicted defendants have “constructive notice” of mandatory

court costs that are set by statute. Cardenas v. State, 423 S.W.3d 396, 399 (Tex.

Crim. App. 2014).

      Code of Criminal Procedure article 102.011(a) requires a defendant convicted

of a felony to pay several fees for “services performed in the case by a peace officer,”

including $5 for “summoning a witness.”          TEX. CODE CRIM. PROC. ANN. art.


                                          23
102.011(a)(3) (West Supp. 2016). Article 102.011(b) requires a defendant who must

pay fees under that article to pay “29 cents per mile for mileage required of an officer

to perform a service listed in this subsection and to return from performing that

service.” Id. art. 102.011(b) (providing that subsection applies to traveling to

summon witnesses). Article 102.011 “does not condition the imposition of the

witness/mileage fee upon which party summoned the witnesses.” London v. State,

490 S.W.3d 503, 510 (Tex. Crim. App. 2016) (“London I”).

      This Court recently addressed whether article 102.011(a)(3) and (b) violates

a defendant’s constitutional right of confrontation and right of compulsory process.

London v. State, — S.W.3d —, No. 01-13-00441-CR, 2017 WL 2779907 (Tex.

App.—Houston [1st Dist.] June 27, 2017, pet. filed) (“London II”). In that case,

London pleaded guilty shortly before trial to the offense of possession of a controlled

substance. Id. at *1. The trial court’s judgment ordered London to pay $329 in court

costs, and the itemized bill of costs provided to him demonstrated that this amount

included $35 for summoning seven witnesses for the State. Id. In his sole issue on

appeal, London challenged the constitutionality of article 102.011(a)(3), arguing

that, because he was indigent, the statute violated his rights of confrontation and of

compulsory process. Id.

      In holding that he had not met his burden to establish that article 102.011(a)(3)

was unconstitutional as applied to him, this Court noted that London had not


                                          24
identified any material and favorable witnesses he had wished to present, but could

not, and London had not attempted to issue any subpoenas or compel process for a

potential witness. Id. at *2. Instead, London argued on appeal that “constructive

notice” of the $5 fee for summoning witnesses precluded him from presenting an

adequate defense. Id. The burden was on London to “make a plausible showing to

the trial court, by sworn evidence or agreed facts, that the witness’ testimony would

be both material and favorable to the defense.” Id. (quoting Coleman, 966 S.W.2d

at 528). This Court held that, without this showing, it could not conclude that

London’s constructive notice of the fee for summoning witnesses denied him his

right to have “compulsory process for obtaining witnesses in his favor.” Id.

      Similarly, with respect to London’s argument that article 102.011(a)(3) denied

him his constitutional right of confrontation, this Court noted that the fee for

summoning witnesses was only assessed after London pleaded guilty, or “on

conviction.” Id. at *3. London’s opportunity to confront or cross-examine the

State’s witnesses “was not contingent on his postjudgment ability to pay the witness

fee.” Id. London asserted that requiring him to pay this fee was “unfair and

unconstitutional,” but he did not demonstrate how the fee prevented him from

exercising his right to be confronted by the witnesses against him. Id. This Court

also noted that while London’s appeal was “premised on a conclusory assertion that

it is ‘unfair and unconstitutional’ to assess court costs against an indigent defendant,”


                                           25
several of our sister courts have held that “indigence does not preclude the recovery

of court costs, so long as they are not required to be paid in advance.” Id. at *4; see,

e.g., Allen v. State, 426 S.W.3d 253, 258–59 & n.14 (Tex. App.—Texarkana 2013,

no pet.) (“[A] trial court can order an indigent defendant to pay court costs provided

payment is not demanded before the trial court proceedings have concluded.”);

Williams v. State, 332 S.W.3d 694, 700 (Tex. App.—Amarillo 2011, pet. denied)

(stating that legislatively mandated fees and court costs may be withdrawn from

inmate’s account without regard to inmate’s ability to pay). This Court concluded,

“London 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

of $5 per witness had the actual effect, as applied to him in this case, of denying him

compulsory process or confrontation of the witnesses against him.” London II, 2017

WL 2997707, at *4.

      London is indistinguishable from this case. After his conviction, appellant

was assessed $80 for “summoning witness/mileage.” The record reflects that the

State subpoenaed sixteen witnesses on three separate occasions; however, the cost

assessed is consistent with charging appellant solely for the subpoenas issued for his

actual trial date. The record also reflects that appellant subpoenaed two witnesses

and that the subpoenas were given to a private process server—not a peace officer—

for execution.    Neither of these two witnesses for whom appellant obtained


                                          26
subpoenas testified at trial, and the record includes no explanation as to why these

witnesses were not called.

      Appellant has failed to identify any “material and favorable” witness who he

had wished to subpoena but was unable to subpoena because of the cost of

summoning the witness. See id. at *2; see also Coleman, 966 S.W.2d at 527–28

(stating that Compulsory Process Clause “guarantees only compulsory process for

obtaining witnesses whose testimony would be both material and favorable to the

defense”). Because appellant has not made a showing that material and favorable

witnesses were available to be called by him, we cannot conclude that the $5 fee for

summoning witnesses, as applied in this case, operated to deny appellant his right to

“have compulsory process for obtaining witnesses in his favor.” See London II, 2017

WL 2779907, at *2.

      Furthermore, the State called four witnesses to physically appear and testify

at trial against appellant, and appellant had the opportunity to, and did, cross-

examine each witness. See id. at *3 (noting that because witness fees are only

assessed upon conviction, defendant’s ability to confront or cross-examine State’s

witnesses was not contingent on postjudgment ability to pay fees). Appellant has

not established how constructive notice of the $5 fee for summoning witnesses

prevented him from exercising his constitutional right to be confronted with the




                                         27
witnesses against him.4 See id.; see also Lykos, 330 S.W.3d at 912 (stating that, in

as-applied constitutional challenge, courts must evaluate constitutionality of statute

“as it has been applied in practice against the particular challenger”).

      We therefore conclude, pursuant to London, that appellant has not

demonstrated that article 102.011(a)(3), as applied to him, operated to deny him his

constitutional rights to confront the witnesses against him or to have compulsory

process for obtaining witnesses in his favor. See London II, 2017 WL 2779907, at

*7; see also Eugene v. State, — S.W.3d —, No. 14-16-00391-CR, 2017 WL

3441207, at *4–5 (Tex. App.—Houston [14th Dist.] Aug. 10, 2017, no pet. h.)

(following London and stating that for defendant to meet his burden on his as-applied

challenge to article 102.011(a)(3), defendant “needed to state what he would have

done differently had he not been on constructive notice that upon conviction, he

would be assessed fees for summoning witnesses”); Merrit v. State, — S.W.3d —,

No. 14-16-00426-CR, 2017 WL 3159861, at *6–7 (Tex. App.—Houston [14th Dist.]

July 25, 2017, no pet. h.) (likewise rejecting defendant’s as-applied challenge to




4
      In an unpublished memorandum opinion, the Fourteenth Court of Appeals recently
      stated that “an indigent defendant is not deprived of the ability to confront witnesses
      merely because the defendant knows that he or she might someday be required to
      pay the costs of summoning those witnesses after a conviction.” Jones v. State, No.
      14-16-00444-CR, 2017 WL 3567911, at *6 (Tex. App.—Houston [14th Dist.] Aug.
      17, 2017, no pet. h.) (mem. op., not designated for publication).
                                            28
article 102.011(a)(3) on basis that it denied him his confrontation rights and right to

have compulsory process to obtain favorable witnesses).

      We overrule appellant’s third issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Publish. Tex. R. App. P. 47.2(b).




                                          29
