Derrick Demond Gray v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00026-CR
DERRICK DEMOND GRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 48546-A
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
A Gregg County jury convicted Derrick Demond Gray of aggravated assault with a
deadly weapon. After the jury found the State’s punishment enhancement allegations true, Gray
was sentenced to forty years’ imprisonment and was ordered to pay a $10,000.00 fine. On
appeal, Gray argues that the trial court violated his Sixth Amendment right to be represented by
the retained counsel of his choice and that the jury’s verdict of guilt is not supported by legally
sufficient evidence.
We conclude that the trial court did not violate Gray’s right to counsel of his choosing.
We also find that legally sufficient evidence supported the jury’s finding of guilt. As a result, we
affirm the trial court’s judgment.
I. The Trial Court Did Not Violate Gray’s Right to Counsel of His Choosing
A. Factual and Procedural Background
Gray’s first counsel, Steve Smith, was replaced by hired counsel, Brandt J. Thorson, in
April 2019. At a bond reduction hearing on November 5, 2019, after the State noted that the
previously set trial was continued at Gray’s request in October, the case was set for trial on
January 13, 2020. On January 2, Thorson filed a motion for a continuance on the ground that he
was “involved in a federal sentencing” in a case also set for January 13.
At a January 8 hearing on Thorson’s motion for a continuance, attorney Gerald Smith,
who had not yet made any formal appearance in the case, informed the trial court that Gray’s
family had contacted him and paid him to serve as counsel for Gray. Smith informed the court
that he told Thorson about the retention and his intent to “substitute [as counsel] if there [was] a
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continuance.” However, Smith said that he would not be in town on January 13 because of a
prepaid vacation and further stated,
I prepared the motions to substitute but I will not file those if I’m going to be in
trial because that’s impossible. But he is looking to have an attorney of his
choice. I guess I’ll speak to him in some kind of way and let him know that even
though he’s choosing me to be his counsel which he’s got a right --. He’s
specially set. That’s something, he’ll have to deal with.
The trial court noted that the case had been pending since April 2017, Thorson was Gray’s
second counsel, and that there had “been continuances filed.” Thorson said that he would likely
file a motion to withdraw because he had “basically been fired by [his] client.”
The trial court labeled Gray’s late request for different counsel as “a delay tactic.” After
hearing that Thorson would be available on January 21 and that Smith would not be ready to try
the case, the trial court granted Thorson’s motion for a continuance and set the matter for
January 21. On January 15, two days before the scheduled pretrial hearing, Thorson filed a
motion to withdraw, with Gray’s signed consent, even though there was no motion to substitute
counsel and Smith had not filed an appearance. The trial court denied Thorson’s motion.
B. Relevant Caselaw and Standard of Review
“A criminal defendant has a right to secure counsel of his or her own choice.” Gilmore v.
State, 323 S.W.3d 250, 264 (Tex. App.—Texarkana 2010, pet. ref’d) (citing United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v. United States, 486 U.S. 153, 159 (1988);
Powell v. Alabama, 287 U.S. 45, 53 (1932) (“It is hardly necessary to say that the right to
counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of
his own choice.”)). “Deprivation of the right is ‘complete’ when the defendant is erroneously
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prevented from being represented by the lawyer he wants, regardless of the quality of
representation he received.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006).
However, “the defendant’s right to counsel of choice is not absolute.” Gonzalez v. State,
117 S.W.3d 831, 837 (Tex. Crim. App. 2003) (citing Wheat, 486 U.S. at 159). “[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.” Id. (citing Wheat, 486 U.S. at 158–
60)). Among other things, “a trial court[] [has] wide latitude in balancing the right to counsel of
choice against the needs of fairness and against the demands of its calendar.” Gonzalez-Lopez,
548 U.S. at 152 (citations omitted); Childress v. State, 794 S.W.2d 119, 121 (Tex. App.—
Houston [1st Dist.] 1990, pet. ref’d) (“This right [to obtain counsel of one’s own choice] cannot
be manipulated so as to obstruct the orderly procedure in the courts and must be balanced with a
trial court’s need for prompt and efficient administration of justice.”) (citing Thompson v. State,
447 S.W.2d 920, 921 (Tex. Crim. App. 1969)); see also Ex parte Windham, 634 S.W.2d 718,
720 (Tex. Crim. App. 1982).
Because the trial court granted Thorson’s motion for a continuance at the hearing, the
adverse action Gray complains of is the denial of Thorson’s motion to withdraw. “We review a
trial court’s denial of a motion to withdraw for abuse of discretion.” Barnett v. State, 344
S.W.3d 6, 24 (Tex. App.—Texarkana 2011, pet. ref’d) (citing King v. State, 29 S.W.3d 556, 566
(Tex. Crim. App. 2000)). If “a trial court unreasonably or arbitrarily interferes with the
defendant’s right to choose counsel, its actions rise to the level of a constitutional violation.”
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Gonzalez, 117 S.W.3d at 837. As long as the trial court’s ruling falls within the “zone of
reasonable disagreement,” the trial court does not abuse its discretion, and we will uphold the
ruling. Johnson v. State, 352 S.W.3d 224, 227 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d) (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)); see also Rosales
v. State, 841 S.W.2d 368, 375 (Tex. Crim. App. 1992).
C. Analysis
Here, although Smith made no official appearance and the only written motion for a
continuance in this case was granted, both parties refer to the following factors that courts
consider in deciding whether to grant a continuance for purposes of obtaining new counsel,
including:
(1) the length of the 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 or
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 a denial of the motion resulted in some
identifiable harm to the defendant, [and] (9) the quality of legal representation
actually provided.
Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982); see Rosales, 841 S.W.2d at
375. As stated below, these factors show both that the trial court did not abuse its discretion in
denying Thorson’s motion to withdraw and that the denial of the motion did not operate to
violate Gray’s right to counsel of his choosing.
Here, the trial court noted that the case had been on its docket since April 2017, had been
passed several times for a docket setting, and was continued for trial in October 2019. While
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Thorson had fully prepared the case and would be ready for trial on January 21, 2020, Smith had
just been retained by Gray’s family and was not prepared for trial. There was no indication in
the record as to how long Smith would need to prepare the case for trial if Thorson were allowed
to withdraw. The State, which had been ready for trial, asked for a setting in November.
Because Gray had fired another counsel before hiring Thorson and then sought to hire Smith
right before trial even though he had notice of the special January setting, the court concluded
that Gray was employing delay tactics. Gray’s briefing admits that Thorson provided “quality
representation as demonstrated by his knowledge of the case and State’s witnesses.” Smith did
not join in the motion to withdraw, and there was no motion for substitution of counsel on file at
the time the trial court denied Thorson’s motion to withdraw. As a result, we cannot say that the
trial court abused its discretion in finding that Gray’s right to counsel of his own choosing was
outweighed by its need for the prompt and efficient administration of justice.
We overrule Gray’s first point of error.
II. Legally Sufficient Evidence Supported the Jury’s Finding of Guilt
A. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019 pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “Our rigorous legal
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sufficiency review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323
S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007))).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
B. Analysis
Here, the State alleged (1) that Gray committed assault by intentionally, knowingly, or
recklessly causing bodily injury to Simone Barnes by striking her with a firearm and (2) that he
used or exhibited a deadly weapon, the firearm, during the commission of the assault. See TEX.
PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2). The State called Barnes to testify about the
incident, but she was a hostile witness that did not wish to speak against Gray. As a result, Gray
argues that no rational jury could have determined that he used or exhibited a firearm or that
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Barnes sustained bodily injury because she did not testify about any pain or suffering.1 We
disagree.
The State introduced a recorded interview between Barnes and Cody Lusk, an officer
with the Longview Police Department who responded to the scene. On the recording, Barnes
told Lusk that Gray reached into his pocket for his gun and struck her across the head with the
firearm. The recording shows that Barnes appeared to be in pain and that she was grasping her
head, which she had wrapped with a cloth. Lusk testified that Barnes was crying and “had a
small laceration towards the back of her head” and that there was “a lot of blood.” Barnes
admitted that she sustained “two holes in [her] head” and that she had accused Gray of causing
them.
Lusk found blood on the concrete where the incident occurred and “ammunition rounds
on the ground outside.” Barnes’s coworker, Orlandria Ja’Cole Miles, testified that she witnessed
Barnes and Gray outside of work where the incident occurred and that Barnes came inside the
building after speaking with Gray “to use [her] phone so she [could] go to the hospital because
. . . when she then came back inside she was full of blood.” According to Miles, Barnes said that
Gray had assaulted her and “hit her with a pistol.”
To establish that a victim suffered a bodily injury, the State need only show that the
victim experienced some pain, as “[a]ny physical pain, however minor, will suffice[.]” Garcia v.
State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012). “[T]he jury is permitted to draw reasonable
inferences from the evidence, including an inference that the victim suffered pain as a result of
1
It is undisputed that a firearm is a deadly weapon per se. See TEX. PENAL CODE ANN. § 1.07(a)(17)(A).
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her injuries.” Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.—El Paso 2002, no pet.). “The
existence of a cut, bruise, or scrape on the body is sufficient evidence of physical pain necessary
to establish ‘bodily injury’ within the meaning of the statute.” Id. (citing Bolton v. State, 619
S.W.2d 166, 167 (Tex. Crim. App. 1981)). From the evidence of Barnes’s injuries, the jury
could infer her pain and suffering.
Viewed in the light most favorable to the jury’s verdict of guilt, we conclude that a
rational jury could find, beyond a reasonable doubt, that Gray assaulted Barnes by hitting her
over the head with a firearm, which was used or exhibited during the commission of the assault,
and that Barnes sustained bodily injury as a result. Consequently, we overrule Barnes’s last
point of error.
III. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: October 22, 2020
Date Decided: November 18, 2020
Do Not Publish
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