Cortez Bowser v. State ( 2018 )

AFFIRMED; Opinion Filed July 20, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00504-CR
No. 05-17-00505-CR
CORTEZ BOWSER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F13-55659-R & F13-55761-R
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart
Cortez Bowser appeals the trial court’s judgments adjudicating guilt for possession of
cocaine and burglary of a habitation. In four issues, appellant argues the trial court erred by
denying his right to be represented by an attorney he hired, denying his oral motion for
continuance, and violating his statutory and common-law rights of allocution. We affirm the trial
court’s judgments.
In separate cause numbers, the State charged appellant with possession of cocaine in an
amount less than one gram (F13-55659-R) and burglary of a habitation (F13-55761-R). Both
indictments included enhancement paragraphs alleging prior felony convictions for aggravated
assault with a deadly weapon. Appellant executed judicial confessions, entered open pleas to the
charges, and pleaded true to the enhancement paragraphs. The trial court placed appellant on
deferred adjudication community supervision for both offenses.
On March 14, 2016, the State filed motions to revoke or proceed with an adjudication of
guilt on the grounds appellant violated conditions of supervision. On April 7, 2016, the State filed
amended motions to revoke or proceed with an adjudication of guilt. Appellant’s retained counsel,
David Patin, filed motions to withdraw on April 26, 2017, stating he could not remain appellant’s
counsel after joining a new law firm where he could not be an attorney of record on any criminal
case. No order on these motions appears in the record.
At the beginning of the hearing on May 4, 2017, Patin informed the Court he had “been
advised that Mr. Bowser has fired me as his attorney of record. That Mr. Bowser wants another
attorney to represent him, and he’s in fact contracted with Craig Watkins to be his attorney for all
his cases moving forward.” The trial court denied the request, stating it had not received notice
from Watkins who had not appeared in the case; Patin had tried a murder case for appellant that
resulted in a hung jury; the revocation hearing was set for more than one month; and appellant had
been incarcerated for a year. The trial court would not “allow this to hold up our docket” and “to
keep this case from unnecessary delay.” Patin then orally requested a two-day continuance to
allow Watkins to make an appearance. The trial court denied this request as well. The revocation
proceedings then continued with Patin acting as appellant’s counsel.
In his first issue, appellant argues he was denied his constitutional right to be represented
by the attorney of his choice. An appellate court reviews a trial court’s ruling on a motion to
substitute counsel for an abuse of discretion. Turner v. State, No. 05-07-00616-CR, 2008 WL
2502143, at *2 (Tex. App.—Dallas June 23, 2008, no pet.) (not designated for publication) (citing
Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)). A trial
court abuses its discretion when its decision is so clearly wrong as to lie outside the zone within
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which reasonable persons might disagree. Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App.
2005).
A trial court has essentially three options when confronted with an accused who makes an
eleventh hour request for change of counsel. Turner, 2008 WL 2502143, at *2 (citing Burgess v.
State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991)). First, at its discretion the court can appoint,
or allow the accused to retain, new counsel. Id. (citing Burgess, 816 S.W.2d at 428). Second,
should the trial court deny new counsel, and the accused unequivocally asserts his right to self-
representation, persisting in that assertion after proper admonishment, the court must allow the
accused to represent himself. Id. (citing Burgess, 816 S.W.2d at 418-19). Third, unless the trial
court allows new counsel, it must compel an accused who will not waive counsel and does not
unequivocally assert his right to self-representation to proceed to trial with the lawyer he has,
whether he wants to or not. Id. (citing Burgess, 816 S.W.2d at 429).
Here, as in Turner, appellant made his request to change counsel on the day of the
revocation hearing and at the “eleventh hour.” Id. (citing Burgess, 816 S.W.2d at 427-28). In
addition to the request being raised on the day of the hearing, the trial court noted appellant had
been incarcerated for one year and the court needed to keep the case from unnecessary delay.
Patin, counsel who appellant previously retained and who obtained a hung jury on appellant’s
behalf in a murder trial, stated he was prepared to proceed with the hearing and did not re-urge his
motion to withdraw that he filed on April 26. Based on the record, we cannot say the trial court
abused its discretion by denying the motion to change counsel. We overrule appellant’s first issue.
In his second issue, appellant argues the trial court erred by denying his motion for
continuance. “A criminal action may be continued on the written motion of the State or of the
defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion.” TEX.
CODE CRIM. PROC. ANN. art. 29.03. Article 29.08 requires all motions for continuance to be sworn
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to by a person with knowledge of the facts relied upon for the continuance. Id. art. 29.08. Because
of these procedural prerequisites, the court of criminal appeals has held that oral motions for
continuance preserve nothing for appellate review. See Dewberry v. State, 4 S.W.3d 735, 755–56
(Tex. Crim. App. 1999). Appellant does not dispute that he only made an oral motion. Because
the motion in question was oral and not sworn, we conclude this issue was not properly preserved
for appeal. We overrule appellant’s second issue.
In his third and fourth issues, appellant argues the trial court violated his statutory right to
allocution, codified in article 42.07 of the Texas Code of Criminal Procedure, and a common-law
right to allocution. Article 42.07 provides that prior to sentencing, a defendant shall be asked if
he has anything to say as to why the sentence should not be pronounced and provides a list of only
three reasons that may support such a statement. See TEX. CODE CRIM. PROC. ANN. art. 42.07.
Although appellant did not object to the trial court’s failure to make this inquiry, he insists the
error is reversible. We disagree.
An objection to a denial of allocution is required to preserve a complaint on appeal. See
Mendez v. State, No. 05-07-01624-CR, 2009 WL 606668, at *4 (Tex. App.—Dallas Mar. 11, 2009,
no pet.) (not designated for publication) (citing Tenon v. State, 563 S.W.2d 622, 623-24 (Tex.
Crim. App. 1978)); see also Amador v. State, No. 14-14-00405-CR, 2015 WL 4548967, at *2 (Tex.
App.—Houston [14th Dist.] July 28, 2015, pet. ref’d). Because appellant raised no objection, we
conclude nothing is presented for our review. Additionally, there was no contention then or now
that any of the statutory reasons not to impose the sentence ever existed. Mendez, 2009 WL
606668, at *4. Thus, we cannot conclude appellant was harmed by the trial court’s failure to follow
article 42.07. Id. (citing Hernandez v. State, 628 S.W.2d 145, 147 (Tex. App.—Beaumont 1982,
no pet.)). As stated by the court in Tenon, “[s]urely appellant would not have this court reverse
this cause and order a new sentencing so that when the court asks [him] if [he] has anything to say
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why sentence should not be pronounced against [him] he can then answer ‘Nothing.’” Tennon,
563 S.W.2d at624. We overrule appellant’s third issue.
Likewise, although appellant complains he was denied a common-law right to allocution,
he did not raise this complaint in the trial court.1 As a prerequisite to presenting a complaint for
appellate review, the record must show that the specific complaint was made to the trial court. See
TEX. R. APP. P. 33.1(a). Appellant did not object at trial on grounds he was denied a common-law
right of allocution and he raises this issue for the first time on appeal. He has failed to preserve
error. See Williams v. State, 05-16-01305-CR, 2018 WL 1373953, at *4 (Tex. App.—Dallas Mar.
19, 2018, no pet.) (mem. op., not designated for publication). We overrule appellant’s fourth issue.
We affirm the trial court’s judgments.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
170504F.U05
1
The State asserts that Texas law does not recognize a common-law right to allocution. We need not address this issue because appellant’s
complaint was not made to the trial court. See TEX. R. APP. P. 47.1.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CORTEZ BOWSER, Appellant On Appeal from the 265th Judicial District
Court, Dallas County, Texas
No. 05-17-00504-CR V. Trial Court Cause No. F-1355659-R.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 20th day of July, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CORTEZ BOWSER, Appellant On Appeal from the 265th Judicial District
Court, Dallas County, Texas
No. 05-17-00505-CR V. Trial Court Cause No. F-1355761-R.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Lang and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 20th day of July, 2018.
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