Opinion
NO. 01-16-00084-CR
02-28-2017
FRANK HAMILTON HARDY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas
Trial Court Case No. 1395118
MEMORANDUM OPINION
In 2013, appellant, Frank Hamilton Hardy, pleaded guilty to the second-degree felony offense of possession of between four and two hundred grams of a controlled substance, and he pleaded true to the allegations contained in two enhancement paragraphs. The trial court deferred adjudication of guilt and placed appellant on community supervision for four years. In 2015, the State moved to adjudicate guilt, alleging that appellant had violated the terms of his community supervision by committing a new offense. The trial court granted the motion to adjudicate and assessed appellant's punishment at forty years' confinement. In two issues, appellant contends that (1) the trial court abused its discretion by denying trial counsel's motion to withdraw; and (2) his trial counsel rendered constitutionally ineffective assistance.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West 2010).
We affirm.
Background
In 2013, the State charged appellant with the offense of possession of a controlled substance. Appellant pleaded guilty to this offense, and, upon the recommendation of the State, the trial court deferred adjudication of guilt and placed appellant on community supervision for four years. The terms and conditions of appellant's community supervision required him to refrain from committing a new offense against the laws of Texas, refrain from using or consuming alcoholic beverages, and refrain from possessing a firearm.
On October 19, 2015, the State moved to adjudicate guilt, alleging that appellant had violated the terms of his community supervision by committing a new offense of deadly conduct. Specifically, the State alleged that appellant, on or about October 16, 2015, "unlawfully recklessly engage[d] in conduct that placed Lloyd Henry Eubanks . . . in imminent danger of serious bodily injury, namely, by firing a gun in the air." The State also alleged that appellant violated the terms of his community supervision by failing to pay court costs and by failing to pay restitution. The State supplemented its motion to adjudicate and alleged two further violations: (1) that appellant consumed and was under the influence of an alcoholic beverage on October 3, 2015, and (2) that appellant possessed a firearm on October 16, 2015.
Appellant retained counsel on December 2, 2015. Appellant's retained counsel appeared on his behalf on that date and requested that the hearing on the State's motion to adjudicate be reset until December 18, 2015. The trial court approved this request. At this time, retained counsel was already representing appellant in a separate case.
On December 18, 2015, the day of the hearing on the motion to adjudicate, retained counsel filed a motion to withdraw. Counsel alleged that appellant had failed to make any payment beyond his initial down payment and that this failure "has created discord and conflict of personalities [such] that it has destroyed the attorney-client relationship and further legal representation is untenable." She stated that appellant had advised her via text message that he no longer desired her representation. Counsel also alleged:
Defendant, in addition to not paying his attorney, has failed to follow the legal advice of the attorney, accused the attorney of not working in his best interest, been argumentative and uncooperative and this discord and conflict has prevented the attorney from being able to provide the Defendant with effective assistance of counsel in this very serious legal matter and consequently, the attorney is not ready to try his case or provide Defendant with adequate legal representation in his Motion to Adjudicate Hearing wherein the Defendant faces a minimum of 25 years to life in prison.
Before the adjudication hearing began, retained counsel stated on the record that appellant contacted her two days before the hearing and informed her he would be getting a new attorney, "so [she] didn't think [she] was going to have to be here since [appellant] effectively fired [her]." Retained counsel also stated that she was in New York the day before the hearing and that, on the flight back, she started feeling ill as a result of her chronic diabetes. She stated, "[I]n light of the fact that [appellant] does not have confidence in me to go to trial, I don't want to go to trial with him. He hasn't paid me. He hasn't been cooperative. He hasn't done the things I've asked him to." She further stated that, after appellant contacted her two days before the hearing, she "just stopped working on this case," and therefore she was not ready to represent appellant at the hearing. She stated, "I don't think he has any witnesses here. I don't think he has any evidence. He did disclose to me some issues that prompted me to prepare a motion to suppress evidence, which I'd like for it to be considered before you do anything, and I would like to also have my motion to withdraw ruled on." Counsel also informed the trial court that appellant told her while at the adjudication hearing that he planned to file a State Bar complaint against her.
In response, the trial court stated, "What I'm unwilling to do is allow for [appellant] to continue to be on bond while facing a motion to adjudicate indefinitely. Unfortunately for you, you are the lawyer he chose. You signed on. You requested two weeks to prepare for a hearing, and we're going to have the hearing today." The trial court therefore denied counsel's motion to withdraw and proceeded with the hearing on the motion to adjudicate guilt.
Houston Police Department Officer K. Collier testified that he first had contact with appellant on October 3, 2015, when appellant called for police service at his house relating to a possible burglary. Officer Collier testified that he attempted to take information from appellant, but appellant smelled of alcohol, appeared to be intoxicated, and was volatile, aggressive, and uncooperative.
Lloyd Eubanks testified that on the evening of October 16, 2015, approximately two weeks after appellant's first contact with Officer Collier, he was visiting his nephew, who lived on the same street as appellant. Eubanks first heard appellant walking down the street, yelling to himself and cursing. Around five minutes later, appellant went inside his house, came back outside, started cursing again, and started shooting a firearm up in the air while standing in his driveway. Appellant shot his firearm six times, went back inside his house to reload his weapon, and came back outside and shot his weapon six more times. Eubanks called 9-1-1.
Wendell Brown testified that he lived across the street from appellant. While he was inside his house, he heard someone yelling, so he went outside and asked Eubanks what was going on. While Brown was talking to Eubanks, appellant came outside and shot his weapon in the air approximately five times, went inside his house, and then came back outside and shot his weapon approximately five more times. Brown heard appellant arguing with someone, although no one else was around appellant, and he could not tell what exactly appellant was saying.
Officer Collier testified that he received another dispatch on October 16, 2015, which caused him to return to appellant's street. He spoke with Eubanks, and, based on that conversation, he began looking for appellant, whom he saw trying to enter his house. Appellant told the officers that "he was the victim of somebody else shooting at him, and that he was attacked." Officer Collier did not see any injuries on appellant. Officer Collier testified that the officers asked appellant about the weapon he had allegedly used, and appellant responded that he had a weapon hidden underneath a pillow, and he gave officers consent to search his house. Officers did not find a weapon at appellant's house. While at appellant's house, Officer Collier observed twelve spent shell casings in a trash can outside of appellant's garage.
Retained counsel filed a motion to suppress this evidence, arguing that Houston Police Department officers forged his name on the consent-to-search form after he refused to allow the officers to search his property.
Appellant testified on his own behalf at the hearing. Appellant denied engaging in any of the conduct described in Eubanks', Brown's, or Officer Collier's testimony. He denied signing a consent-to-search form when the officers arrived at his house, and he stated that officers did not ask for his consent. He testified that he walked home from dinner between 8:30 and 9:30 p.m. on October 16, 2015, and, while he was walking with his headphones on, a man he did not know jumped out of a white car, pointed a weapon at him, and then fired it into the air before getting back into the car and driving away. Appellant testified that when he returned home he searched for his phone on his front porch and saw Officer Collier in his front yard. He denied firing a weapon that night.
The trial court found the allegations in the State's motion to adjudicate true and adjudicated appellant guilty of the charged offense of possession of a controlled substance. Based on appellant's two prior felony convictions, the trial court assessed appellant's punishment at forty years' confinement. Appellant did not move for a new trial.
Denial of Motion to Withdraw
In his first issue, appellant contends that the trial court abused its discretion by denying retained counsel's motion to withdraw as counsel.
The United States and the Texas Constitution guarantee that a defendant in a criminal proceeding has the right to have assistance of counsel. Gonzalez v. State, 117 S.W.3d 831, 836 (Tex. Crim. App. 2003); see U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.05 (West 2005) (granting accused right to be heard by counsel in all criminal prosecutions). Included within this right is the defendant's right to secure counsel of his choice. United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561 (2006); Gilmore v. State, 323 S.W.3d 250, 264 (Tex. App.—Texarkana 2010, pet. ref'd).
This right, however, is not absolute. Gonzalez, 117 S.W.3d at 837; Gilmore, 323 S.W.3d at 264 ("The United State Supreme Court, though, specifically acknowledged the right [to counsel of one's own choice] 'is circumscribed in several important respects.'") (quoting Gonzalez-Lopez, 548 U.S. at 144, 126 S. Ct. at 2561). The right to counsel of one's choice "must be balanced with the trial court's need for prompt, orderly, effective, and efficient administration of justice." Brink v. State, 78 S.W.3d 478, 483 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (citing Emerson v. State, 756 S.W.2d 364, 369 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd)). A defendant may not manipulate the right to counsel "so as to obstruct the judicial process or interfere with the administration of justice." King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); see also Gonzalez-Lopez, 548 U.S. at 152, 126 S. Ct. at 2565-66 (noting that trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness and against demands of its calendar") (internal citations omitted).
The Court of Criminal Appeals has held that "personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal." King, 29 S.W.3d at 566. Courts have also held that retained counsel may be allowed to withdraw from representation "upon proof that the client deliberately disregarded a fee arrangement, but not upon a showing that the client was merely delinquent in satisfying his obligations to counsel." Riley v. State, 676 S.W.2d 178, 180 (Tex. App.—Dallas 1984, no pet.); see also Robinson v. State, 661 S.W.2d 279, 283 (Tex. App.—Corpus Christi 1983, no pet.) ("Retained counsel, even one who has not been fully compensated for past services, cannot wait until a critical stage of the proceedings is reached and attempt to withdraw from the case."). Furthermore, the filing of a grievance or civil action against a defense attorney "is not a per se conflict of interest warranting disqualification of counsel at the whim of a criminal defendant." McKinny v. State, 76 S.W.3d 463, 478 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Moreover, "A defendant cannot wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he or she may retain other counsel." Gilmore, 323 S.W.3d at 264.
The trial court has discretion to determine whether a defendant's counsel should be allowed to withdraw from a case, and therefore we review this decision for an abuse of discretion. King, 29 S.W.3d at 566; Gonzalez, 117 S.W.3d at 837 ("[W]hile there is a strong presumption in favor of a defendant's right to retain counsel of choice, this presumption may be overridden by other important considerations relating to the integrity of the judicial process and the fair and orderly administration of justice."). We should uphold the trial court's ruling if it falls within the zone of reasonable disagreement. Hobbs v. State, 359 S.W.3d 919, 926 (Tex. App.—Houston [14th Dist.] 2012, no pet.). However, if a trial court unreasonably or arbitrarily interferes with the defendant's right to choose his counsel, the court's actions rise to the level of a constitutional violation. Gonzalez, 117 S.W.3d at 837; Hobbs, 359 S.W.3d at 926.
The trial court originally set appellant's adjudication hearing for December 2, 2015. On that date, retained counsel appeared, informed the trial court that she had been hired by appellant, and requested a reset of the hearing for two weeks later, December 18, 2015. On the day of the hearing, retained counsel filed a motion to withdraw and stated to the trial court that appellant informed her two days before the hearing that he was going to hire a new attorney, that appellant had not fully paid her, that appellant had not been cooperative or "done the things [she had] asked him to," that she started feeling ill the day before the hearing due to her chronic diabetes, that she stopped working on appellant's case after he told her he wanted another attorney and before she started feeling ill, and that appellant planned to file a State Bar complaint against her. Texas courts have already determined that several of these reasons—including personality conflicts, disagreements about trial strategy, failure to pay the agreed-upon fee, and the filing of a grievance when a copy of the grievance is not included in the record—do not constitute valid grounds for withdrawal of counsel. See King, 29 S.W.3d at 566; McKinny, 76 S.W.3d at 478 (noting that because no copy of grievance filed by defendant was included in record, appellate court could not "ascertain the specific allegations of that grievance," and therefore defendant had shown "the mere possibility of a conflict of interest"); Riley, 676 S.W.2d at 180.
In denying retained counsel's motion to withdraw, the trial court stated, "What I'm unwilling to do is allow for [appellant] to continue to be on bond while facing a motion to adjudicate indefinitely." Retained counsel gave no indication in her written motion to withdraw or during argument on the motion before the adjudication hearing that appellant had retained another attorney to represent him. See Ibarra v. State, 456 S.W.3d 349, 354-55 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (considering fact that defendant had taken no steps to retain another attorney to represent him when determining that trial court did not abuse its discretion in denying counsel's motion to withdraw). Furthermore, retained counsel moved to withdraw on the date of the adjudication hearing. See Gilmore, 323 S.W.3d at 264 (stating that defendant cannot wait until date of trial to request that counsel be dismissed so he can retain new counsel). Thus, allowing retained counsel to withdraw when there was no indication that appellant had retained another attorney would have necessitated the postponement of the adjudication hearing indefinitely while appellant searched for a new attorney who would then need time to become familiar with appellant's case. See Ibarra, 456 S.W.3d at 354-55.
The Court of Criminal Appeals has stated that a defendant's right to counsel of his choice must be balanced with "considerations relating to the integrity of the judicial process and the fair and orderly administration of justice." Gonzalez, 117 S.W.3d at 837; see also King, 29 S.W.3d at 566 (stating that right to counsel "may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice"); Hobbs, 359 S.W.3d at 927 (stating that courts must balance right to counsel of defendant's own choice with trial court's "need for prompt, orderly, effective, and efficient administration of justice"). Under the facts of this case, in which retained counsel moved to withdraw on the date of the adjudication hearing, counsel gave no indication that appellant had retained new counsel, and counsel cited several grounds for withdrawal that courts have held do not present a valid basis for withdrawal, we hold that the trial court did not abuse its discretion when it denied retained counsel's motion to withdraw. See King, 29 S.W.3d at 566; Ibarra, 456 S.W.3d at 354-55; Hobbs, 359 S.W.3d at 927.
We overrule appellant's first issue.
In his appellate brief, appellant analyzes this issue based on six factors set out by the Fourteenth Court of Appeals in Johnson v. State, 352 S.W.3d 224 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). In Johnson, defense counsel moved to withdraw after a witness apparently testified inconsistently with what she had stated to counsel in a pretrial meeting, and counsel wished to impeach her by testifying that he had witnessed her prior inconsistent statement. Id. at 226-27. In analyzing whether the trial court abused its discretion by denying the motion to withdraw, the Fourteenth Court identified several relevant factors to consider, some of which, such as "a client's Sixth Amendment right to call witnesses in his own defense" and "the attorney's role, if any, in creating the need to withdraw," are better suited to that particular factual context instead of attorney-withdrawal cases in general. See id. at 228. As the State points out, no court has adopted this six-factor test as the standard to use when determining if the trial court abused its discretion in denying a motion to withdraw, and even the Fourteenth Court when deciding Hobbs a year later did not use this standard. See Hobbs v. State, 359 S.W.3d 919, 926-27 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We therefore decline to do so here.
Ineffective Assistance
In his second issue, appellant contends that his retained trial counsel failed to render constitutionally effective assistance. Specifically, appellant argues that, at the hearing on the motion to adjudicate, retained counsel did not call any witnesses or offer any evidence on his behalf, "which is indicative of a lack of proper investigation and preparation of [his] defense." 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. 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 and 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.").
The appellant must first show that his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms. 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 action 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, and we do not speculate regarding counsel's trial strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (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 strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see 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. Mallett, 65 S.W.3d at 63. Because the reasonableness of trial counsel's choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain her actions before a court reviews the record and concludes counsel was ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. B. Failure to Present Witnesses or Evidence
"The decision whether to present witnesses is largely a matter of trial strategy." Lopez v. State, 462 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd)). A defendant complaining about trial counsel's failure to call witnesses "must show the witnesses were available and that he would have benefitted from their testimony." Cantu v. State, 993 S.W.2d 712, 719 (Tex. App.—San Antonio 1999, pet. ref'd) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)); see Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (per curiam).
Trial counsel must "have a firm command of the facts as well as the governing law before he can render reasonably effective assistance of counsel," which includes counsel's responsibility to seek out and interview potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 394 (Tex. Crim. App. 1990). However, an ineffective assistance claim "based on trial counsel's general failure to investigate the facts of the case fails absent a showing of what the investigation would have revealed that reasonably could have changed the result of the case." Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd); see Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007) (holding that appellant did not establish facially plausible claim of ineffective assistance based on failure to investigate when appellant did not demonstrate evidence or information that investigation "would have revealed that reasonably could have changed the result of this case"); Paez v. State, 995 S.W.2d 163, 171 (Tex. App.—San Antonio 1999, pet. ref'd) ("When alleging ineffective assistance based on counsel's failure to conduct a sufficient investigation, the appellant must show how his representation would have benefitted from the additional consultation.").
In arguing on appeal that his retained counsel rendered ineffective assistance, appellant focuses on counsel's statements at the adjudication hearing that she was not prepared and that she did not think that appellant had any witnesses or evidence in his defense. Appellant argues that while he testified at the hearing, retained counsel did not call any other witnesses or offer any evidence, which he contends "is indicative of a lack of proper investigation and preparation of [his] case."
Appellant, however, did not move for a new trial, and he makes no argument on appeal concerning the availability of particular witnesses, whether the testimony of these witnesses would have been beneficial to him, what evidence retained counsel should have offered on his behalf, or what facts an investigation by counsel would have revealed. Retained counsel's statement that she was not prepared, by itself and in the absence of evidence concerning the availability of witnesses and evidence that would have been beneficial to appellant, does not establish that counsel's actions fell below an objective standard of reasonableness. See Ramirez, 280 S.W.3d at 853 (noting that when basing ineffective assistance claim on failure to call particular witness, defendant must show that witness had been available to testify and that testimony would have been of some benefit to defense); Cantu, 993 S.W.2d at 719 (noting same). Furthermore, to the extent appellant argues that retained counsel did not sufficiently investigate his case, he makes no showing of what an investigation would have revealed that reasonably could have changed the outcome of his case. See Cooks, 240 S.W.3d at 912; Stokes, 298 S.W.3d at 432; Paez, 995 S.W.2d at 171.
We note that retained counsel filed a motion to suppress the spent shell casings found in the trash can near appellant's garage; she made objections; she cross-examined each of the State's witnesses; she questioned appellant, who testified on his own behalf; and, after the trial court granted the State's motion to adjudicate guilt, she argued in favor of a minimum sentence, emphasizing appellant's clean urinalysis results and his compliance with most of the conditions of his community supervision. Appellant does not identify a specific action that retained counsel should have taken, and he does not demonstrate how, but for retained counsel's alleged deficient performance, the results of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding that record must affirmatively demonstrate alleged ineffectiveness); see also Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006) (stating that, in revocation of community supervision cases, State's burden of proof to establish violation of condition of community supervision is preponderance of evidence).
Based on this record, we conclude that appellant has not demonstrated by a preponderance of the evidence that retained counsel's actions or omissions fell below an objective standard of reasonableness and constituted deficient performance. We therefore hold that appellant has not demonstrated that retained counsel rendered constitutionally ineffective assistance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Robertson, 187 S.W.3d at 483; Thompson, 9 S.W.3d at 812.
We overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Higley, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).