Kevin Ray Morris, Sr. v. State ( 2018 )

NO. 12-17-00124-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KEVIN RAY MORRIS, SR., § APPEAL FROM THE 2ND
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
Kevin Ray Morris, Sr. appeals his thirty-four convictions for sex offenses against three
children. In five issues, Appellant argues that the trial court erred by failing to hold timely hearings
on his court appointed counsel’s motions to withdraw and by denying those motions, and that he
received ineffective assistance of counsel. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with eleven counts of aggravated sexual assault of a
child, ten counts of sexual assault of a child, twelve counts of indecency with a child by sexual
contact, and one count of indecency with a child by exposure. The trial court appointed counsel
for Appellant, and he pleaded “not guilty” to the offenses. Before trial, Appellant’s counsel filed
two motions to withdraw. The trial court denied the motions, and the matter proceeded to a jury
trial.
Ultimately, the jury found Appellant “guilty” of all charges and assessed his punishment
at imprisonment for life and a $10,000.00 fine in the aggravated sexual assault cases, imprisonment
for twenty years and a $10,000.00 fine in the sexual assault and indecency by sexual contact cases,
and imprisonment for ten years and a $10,000.00 fine in the indecency by exposure case. This
appeal followed.
HISTORY OF APPEAL
Appellant filed four briefs in this appeal. In Appellant’s initial brief, he contends that the
trial court erred by failing to hold a hearing on either of his trial counsel’s motions to withdraw.
After Appellant submitted this brief, the record was supplemented with a partial transcript of a
hearing on counsel’s second motion to withdraw. Appellant then submitted his first supplemental
brief and raised the supplemental issue that the trial court erred by failing to hold a timely hearing
on counsel’s first motion to withdraw. The record was then supplemented with the entire transcript
of the hearing on defense counsel’s second motion to withdraw. Subsequently, Appellant
submitted his second supplemental brief and raised the following supplemental issues: (1) the trial
court erred by denying counsel’s second motion to withdraw, and (2) counsel rendered ineffective
assistance. Next, the record was supplemented with the transcript of a hearing on counsel’s first
motion to withdraw. Finally, Appellant submitted his third supplemental brief and raised the
supplemental issue that the trial court erred by failing to grant an evidentiary hearing on counsel’s
first motion to withdraw.
Because the record was supplemented with transcripts of timely hearings on both of
defense counsel’s motions to withdraw, we overrule Appellant’s sole issue in his initial brief and
his sole issue in his first supplemental brief.
FAILURE TO GRANT EVIDENTIARY HEARING ON FIRST MOTION TO WITHDRAW
In Appellant’s third supplemental brief, he contends that although the trial court held a
hearing on defense counsel’s first motion to withdraw, it erred by failing to hear evidence on the
motion. We disagree.
The reason given in the first motion to withdraw was that Appellant “indicate[d] that he no
longer want[ed] Movant to represent him and that ‘he [was] not going to trial with Movant.’” At
the hearing, the trial court told Appellant what the motion said, and the following exchange
occurred:
APPELLANT: Mr. Williams has not even spoke to me or done nothing for me.
TRIAL COURT: You have a very complicated case. I am going to, at this point, deny the motion.
Mr. Morris, you have a right to have an attorney of your choice to represent you, but if you want
somebody else, you’ll have to hire them. I appointed Mr. Williams. He’s a good lawyer. He has
done good work in this court. I’m not going to start jumping from court-appointed attorney to court-
appointed attorney. I’m going to deny the motion. You do have the right at any time to go hire an
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attorney. If you do that, he can file a motion to substitute in, and I’ll let Mr. Williams go.
APPELLANT: At the beginning of this, I wanted a trial attorney, and Mr. Williams ain’t a trial
attorney.
TRIAL COURT: Where do you live, Mr. Morris?
APPELLANT: In Maydelle.
TRIAL COURT: Okay. Let me say this. I’m much more knowledgeable and much more qualified
to know whether or not Mr. Williams is a trial attorney. He is a trial attorney. He tries cases in this
court. So I’m denying the motion to withdraw.
We find no indication in the record that Appellant requested an opportunity to present evidence on
the motion. Because Appellant did not request to present evidence, we conclude that the trial court
did not err by failing to hear evidence at the hearing on the first motion to withdraw. See TEX. R.
APP. P. 33.1(a) (defendant must timely object to preserve complaint for review).
DENIAL OF SECOND MOTION TO WITHDRAW
In Appellant’s second supplemental brief, he contends that the trial court erred by denying
defense counsel’s second motion to withdraw after hearing evidence on the motion. We disagree.
A trial court has discretion to determine whether counsel should be allowed to withdraw
from a case. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). The right to counsel may
not be manipulated to obstruct the judicial process or interfere with the administration of justice.
Id. Personality conflicts and disagreements about trial strategy typically are not valid grounds for
withdrawal. Id. A trial court has no duty to search for counsel agreeable to a defendant. Id.
In the second motion to withdraw, the reason given was that Appellant “expressed
numerous time[s] that he does not feel he is adequately being represented by Movant.” At the
hearing on the motion, Appellant called himself, his counsel, and his investigator as witnesses.
Appellant initially testified that he was displeased with defense counsel because counsel
did not speak with him outside of the courtroom during the past two and a half years. During the
few times they met, they only spoke for about thirty minutes, and counsel only talked about plea
bargains. Appellant said that counsel did not review the discovery with him, lied to his “people,”
and misled him “on a bunch of stuff.” Specifically, Appellant believed that counsel lied when he
said one of Appellant’s suggested witnesses told counsel he did not know anything about the case.
On further questioning, Appellant acknowledged that the investigator reviewed with him the
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statements of his suggested witnesses. He further acknowledged that counsel explained the
discovery to him, but said he wanted counsel to show him the videos and read him the documents
page by page.
Counsel testified that Appellant was “quite difficult to deal with” and that his attitude made
representing him very difficult. He said that Appellant complained the defense team was not
spending enough time on the case. Counsel noted that he successfully had experts and
investigators appointed and took “extraordinary measures to make sure [he] put in enough time.”
However, despite counsel’s efforts, Appellant seemed unhappy with his evaluation of the case and
refused to follow his recommendations.
The appointed investigator, Van Kelley, testified that he met with Appellant two or three
times to discuss the case. He reviewed the discovery and contacted witnesses suggested by
Appellant. Kelley also had at least two or three lengthy discussions with defense counsel about the
case. He and defense counsel spent three and a half hours watching videos at the district attorney’s
office and then visited Appellant in jail. Kelley said that Appellant “was expressing a lot of
displeasure” during their last visit to the jail. When counsel explained a plea offer to him before
the hearing that day, Appellant “wasn’t very happy with that situation.”
The trial court denied the motion and stated the following:
This case—I’ve gotten through the file, and it appears that Mr. Williams has worked diligently on
this case. This is an old case.
....
. . . And I’m very reluctant, especially since Mr. Morris is in jail, to delay things any more on this
case. And this case is set in March. It’s going to stay on the March docket, and I’m going to deny
the motion.
On appeal, Appellant observes that in denying the motion to withdraw, the trial court made
no statement regarding “the underlying allegation as to the breakdown of the lawyer/client
relationship, or the lack of communication and animosity which existed between the Defendant
and his trial counsel.” He emphasizes that the trial court said, “This is an old case. . . . And I’m
very reluctant, especially since Mr. Morris is in jail, to delay things any more on this case.”
Appellant notes that no issue of delay would have existed had the trial court granted counsel’s first
motion to withdraw.
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However, nothing in the record supports a conclusion that the trial court abused its
discretion by denying either the first or second motion to withdraw. Although Appellant alleged
at the first hearing that his counsel had not spoken to him or done anything for him and was not a
trial attorney, our review of the record shows that the trial court could have reasonably disbelieved
these allegations. The fact that counsel quoted Appellant in his motion to withdraw contradicts
Appellant’s allegation that counsel had not spoken to him. Furthermore, in contradiction of
Appellant’s allegations that counsel did not do any work on the case and was not a trial attorney,
the trial judge noted his personal knowledge of counsel’s experience as a trial attorney and high
regard for his professional ability. Under these circumstances, the trial court was within its
discretion to deny the first motion to withdraw. See id.
Similarly, Appellant’s allegations against counsel at the hearing on the second motion to
withdraw were contradicted by other evidence. First, although Appellant complained of a lack of
communication and time spent on his case, counsel said that he took “extraordinary measures” to
spend enough time on the case. Second, counsel successfully had experts and investigators
appointed. Third, Kelley testified that he met with Appellant multiple times, including at least
once with counsel present. Fourth, although Appellant complained that counsel spoke with him
only about a plea bargain, he later admitted that counsel reviewed the discovery with him. Finally,
in response to Appellant’s accusation of counsel’s lying about a witness, counsel countered, “Well,
I met him right out in the hall, right out here and I asked him specifically. Why would he tell me
he didn’t know anything about the case?”
Regarding the animosity and breakdown of the attorney-client relationship, the record
tends to show that these were the results of a disagreement about trial strategy, which is typically
not a valid ground for withdrawal. See id. The trial court had no duty to search for counsel
agreeable to Appellant. See id. Consequently, we conclude that the trial court did not abuse its
discretion by denying the second motion to withdraw. See id. Accordingly, we overrule
Appellant’s first issue in his second supplemental brief.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Appellant’s second issue of his second supplemental brief, he contends that his trial
counsel was ineffective for some of the same reasons he alleged at the hearings on the motions to
withdraw.
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Standard of Review and Applicable Law
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must “show that
counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688,
104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance prejudiced
the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The
appropriate standard for judging prejudice requires an appellant to “show that there is 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; Tong, 25 S.W.3d at 712. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. An appellant claiming
ineffective assistance of counsel must affirmatively prove prejudice from counsel’s deficient
performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999).
Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712. We
indulge in a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is Appellant’s burden
to overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Rarely is the record on direct appeal sufficiently developed to fairly evaluate the merits of
a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove both prongs
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of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at
712.
Analysis
Appellant argues that his defense counsel was ineffective because he did not spend enough
time with him, did not show him the discovery videos, gave him “false advice,” and failed to
represent him zealously. We disagree.
First, Appellant’s claims that counsel did not spend enough time with him, did not show
him the discovery videos, and failed to represent him zealously are not firmly founded in the
record. See Thompson, 9 S.W.3d at 813. The record shows that although Appellant complained
over a month before trial about counsel’s performance, his responses to questioning at the time of
trial indicate his complaints were remedied. At that time, Appellant testified that counsel and
Kelley reviewed the videotapes with him and read the documents to him page by page, and he told
them he had no questions. Furthermore, our review of the record shows that counsel made
numerous appropriate objections at trial and provided reasonable professional assistance
throughout the proceedings. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Furthermore, even if we assume that counsel gave Appellant “false advice,” he cannot
prevail in his ineffective assistance claim because he has not affirmatively proved prejudice from
counsel’s deficient performance.1 See Mitchell, 989 S.W.2d at 748. Appellant claims that counsel
falsely informed him that he had no right to see the evidence against him and that he was therefore
“forced to go to trial not fully knowing of what he was to see and hear, or how he could present
his case through his counsel.” However, as we observed above, Appellant testified at the time of
trial that counsel reviewed all the evidence with him and that he subsequently had no questions.
Therefore, even if counsel misinformed Appellant about his rights at an earlier time, Appellant did
not go to trial unaware of what evidence to expect. Appellant thus fails to show how the alleged
misinformation prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong,
25 S.W.3d at 712.
Because the record does not support Appellant’s claims that counsel did not spend enough
time with him, show him the discovery videos, or provide reasonable representation, and the record
does not show any prejudice from the alleged “false advice” of counsel, we cannot conclude that
1
If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, the first
Strickland prong should not be addressed first. Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012).
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counsel rendered ineffective assistance. See Thompson, 9 S.W.3d at 813. Accordingly, we
overrule Appellant’s second issue in his second supplemental brief.
JUDGMENT ERROR
We observe that an error exists in one of the trial court’s judgments. Neither party has
requested that we reform the incorrect judgment, but our authority to do so is not dependent on the
request of any party. Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no
pet.). A judgment is simply the written declaration and embodiment of the trial court’s oral
pronouncement. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there is a
conflict between the oral pronouncement and the written judgment, the oral pronouncement
controls. See id. An appellate court may reform a trial court’s judgment when it has the necessary
data and information. TEX. R. APP. P. 43.2(b); Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim.
App. 1986).
Here, the record shows that the jury assessed a fine of $10,000.00 in Count 34, and the trial
court orally pronounced the fine during sentencing. However, the judgment in that case states that
the fine is “N/A.” Thus, there is a conflict between the oral pronouncement and the written
judgment, and we have the necessary information to correct the judgment. See id.; Taylor, 131
S.W.3d at 500. We conclude that the judgment in Count 34 should be modified to reflect a fine of
$10,000.00.
DISPOSITION
We have overruled Appellant’s sole issue in his initial brief, his sole issue in his first
supplemental brief, his first and second issues in his second supplemental brief, and his sole issue
in his third supplemental brief. Additionally, we have concluded that there is error in the judgment
in Count 34 that was not raised by either party. Accordingly, we modify the trial court’s judgment
in Count 34 to reflect a fine of $10,000.00. We affirm the trial court’s judgment as modified.
BRIAN HOYLE
Justice
Opinion delivered December 4, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 4, 2018
NO. 12-17-00124-CR
KEVIN RAY MORRIS, SR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 2nd District Court
of Cherokee County, Texas (Tr.Ct.No. 19,244)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein, and the same being inspected, it is the opinion of the Court that the judgment of the
trial court below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect a fine of $10,000.00 in Count 34; and as modified, the
trial court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.