Opinion issued July 30, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00368-CR
                            ———————————
                          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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