Douglas Wayne Reed v. the State of Texas

Affirmed and Memorandum Opinion filed March 22, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00311-CR
DOUGLAS WAYNE REED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 19CR1668
MEMORANDUM OPINION
A jury convicted appellant Douglas Wayne Reed of driving while
intoxicated (“DWI”), which was elevated to a third-degree felony offense by two
prior DWI convictions. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2). The
jury assessed punishment at thirty-five years’ imprisonment. In four issues,
appellant argues that: (1) the trial court abused its discretion by denying his oral
motion for continuance; (2) the trial court abused its discretion by granting his first
trial attorney’s motion to withdraw; (3) the trial court erred by overruling his
objection to the prosecutor’s improper jury arguments during the punishment
phase; and (4) the sentence imposed was illegal due to a Samudio error. See
Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983). We affirm.
I. BACKGROUND
On July 8, 2019, appellant was indicted for DWI 3rd or more. Before the
formal indictment, appellant filed a motion to substitute counsel on June 18, 2019;
appellant had counsel appointed to represent him, but sought to retain counsel—
Tad Nelson. The trial court granted the motion to substitute. On January 2, 2020,
Nelson filed a motion to withdraw as counsel, alleging the following reasons in
support of his withdrawal:
2. [Appellant] has failed to comply with the terms of the
employment agreement with [Nelson]. [Appellant] has failed to
make promised payments.
3. [Appellant’s] theory of the case will take extensive time and
resources to prepare in a manner that will seem believable and
does not make the defense have zero credibility.
In a letter dated January 10, 2020, appellant informed the trial court that he
had released Nelson as his attorney in the case as they “disagreed on the way [his]
case was being handled.”
On January 17, 2020, the trial court held a hearing on Nelson’s motion.
Nelson stated that he wished to withdraw for “payment reasons, and, obviously, a
conflict of personality reasons.” Additionally, Nelson proclaimed, “I believe
[appellant] is okay with that. He has told me that he is prepared to hire other
Counsel.” Appellant interjected that he did not have the money to hire additional
counsel. The trial court granted the motion.
On January 22, 2020 the court appointed Pedro Ruiz to represent appellant.
On March 9, 2020, the day trial was to begin, Ruiz told the court—for the first
2
time—that he was not ready for trial. Ruiz stated that appellant would need more
time to prepare because a witness was unavailable; appellant was served with the
re-indictment on March 2, 2020, less than ten days before trial; and the State
abandoned some of the language in the indictment.1 Ruiz orally moved for a
continuance, which the trial court denied.
At trial, appellant did not refute that he was intoxicated while driving.
Instead, he argued that he unknowingly became intoxicated when another
individual tricked him into ingesting a spoonful of marijuana oil. Freda Anderson
and Tammy Ashworth—appellant’s sisters—both testified that they were surprised
by appellants’ conviction. Anderson opined that appellant must have been drugged
because she has not seen appellant even holding a beer over the last seven years.
Ashworth testified that she sees appellant every day and that appellant must have
been drugged because she has never known him to drink and drive.
The jury found appellant guilty and found the enhancement allegations to be
true. During the punishment phase, in its closing argument, the prosecutor’s co-
counsel asked the jurors to impose a life sentence because appellant had been
convicted of seven total DWIs in his life (including the current offense and the two
previous convictions the State alleged in the enhancement paragraphs). During
appellant’s closing argument, Ruiz asserted that “[t]he fact that he was drugged put
him in a position to do something he never would have otherwise done because he
hadn’t done it in 14 years.”
The primary prosecutor responded to Ruiz’s argument during closing
argument: “Now, defense brought up the point that he hasn’t been in trouble for 14
1
The new indictment merely altered one of the jurisdictional enhancements. The original
indictment alleged that appellant was charged with DWI on March 9, 1992 in cause number
598634. The re-indictment alleged that appellant was charged with DWI on March 12, 1992 in
cause number 9136108.
3
years. Just because I cannot bring you a judgment from the past 14 years, doesn’t
mean he hasn’t been intoxicated and behind the wheel of a vehicle. It just means he
hasn’t been caught.” The jury assessed punishment at thirty-five years’
imprisonment in the Texas Department of Criminal Justice—Institutional Division.
Appellant filed a motion for new trial, and a hearing on the motion was
conducted on April 23, 2020. Appellant argued that the trial court erred by
allowing Nelson to withdraw without making further inquiries. Appellant also
argued that Ruiz provided ineffective assistance of counsel by failing to file a
sworn motion for continuance. On April 24, 2020, the trial court denied appellant’s
motion for new trial. Appellant filed a timely appeal.
II. MOTION FOR CONTINUANCE
In his first issue, appellant argues that the trial court erred in denying Ruiz’s
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 (emphasis added). All motions
for continuance must be sworn to by a person having personal knowledge. Id. art.
29.08. “The Court of Criminal Appeals has construed these provisions to mean that
a sworn and written motion for continuance is necessary to preserve any complaint
associated with the denial of the motion.” Woodman v. State, 491 S.W.3d 424, 428
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (citing See Blackshear v.
State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012)).
Because appellant’s motion for continuance was not written and not sworn,
appellant has not preserved anything for review. See Woodman, 491 S.W.3d at
428. We overrule appellant’s first issue.
4
III. ALLOWING COUNSEL TO WITHDRAW
In his second issue, appellant argues that the trial court erred in allowing
Nelson to withdraw from the case.
A. STANDARD OF REVIEW & APPLICABLE LAW
We review the granting of a motion to withdraw for an abuse of discretion.
See Caddell v. Caddell, 597 S.W.3d 10, 13 (Tex. App.—Houston [14th Dist.]
2020, no pet.); Harrison v. Harrison, 367 S.W.3d 822, 826 (Tex. App.—Houston
[14th Dist.] 2012, pet. denied); Johnson v. State, 352 S.W.3d 224, 227 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). Though it is a non-exhaustive list,
we have previously considered the following factors in determining whether a trial
court abused its discretion in ruling on a counsel’s motion to withdraw:
(1) whether counsel offered good cause to withdraw; (2) the necessity
for the withdrawal; (3) a client’s Sixth Amendment right to counsel of
choice; (4) a client’s Sixth Amendment right to call witnesses in his
own defense; (5) the disruption that may result to the trial proceedings
as a result of the attorney’s withdrawal; and (6) the attorney’s role, if
any, in creating the need to withdraw.
Johnson, 352 S.W.3d at 228.
An attorney may withdraw from representing a party “only upon written
motion for good cause shown.” Tex. R. Civ. P. 10; Harrison, 367 S.W.3d at 826.
Rule 10 does not define “good cause,” but the Texas Disciplinary Rules of
Professional conduct set out relevant factors to consider in determining Rule 10
motions.
Under these rules, a lawyer may withdraw from representing a client if: a
client “insists upon pursuing an objective that the lawyer considers repugnant or
imprudent or with which the lawyer has fundamental disagreement”; “the client
fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s
5
services”; or “other good cause for withdrawal exists.” Tex. Disciplinary Rules
Prof’l Conduct R. 1.15(b)(4), (5), (7).
B. ANALYSIS
In his motion to withdraw, Nelson alleged that appellant had failed to make
the agreed payments for Nelson’s services. Nelson further alleged that he and
appellant had a fundamental disagreement concerning how to approach appellant’s
defense. Nelson described appellant’s theory that he became involuntarily
inebriated by ingesting a spoonful of marijuana oil as “cockamamie.”
Additionally, after Nelson filed his motion to withdraw, appellant filed a
letter with the trial court indicating that he had released Nelson as his attorney
because he “disagreed on the way [the] case was being handled.” More
importantly, at the hearing on Nelson’s motion to withdraw, appellant indicated
that he had no objections to Nelson’s withdrawal. The trial court could reasonably
believe that appellant was exercising his right to counsel of choice, and that
appellant no longer wanted Nelson to represent him.
Lastly, we note that Nelson withdrew on January 17, 2020, and Ruiz was
appointed to represent appellant just a few days later, on January 22, 2020. Trial
did not begin until March 9, 2020. Because Nelson’s withdrawal occurred over a
month before trial began, there was no serious disruption to the trial. Cf. Johnson,
352 S.W.3d at 228 (concluding that granting counsel’s motion to withdraw would
have caused serious disruption because counsel moved to withdraw in the middle
of trial, after several witnesses had already testified).
In summary, Nelson substantiated good cause for wanting to withdraw.
Furthermore, appellant indicated to the court that he had released Nelson as his
attorney and presented no objections when Nelson filed his motion to withdraw.
6
And there was no serious disruption because Ruiz, the new attorney, had over a
month to prepare for trial and never filed a motion for continuance until the day of
trial. Given these circumstances, we cannot conclude that the trial court abused its
discretion in granting Nelson’s motion to withdraw. See Tex. R. Civ. P. 10;
Johnson, 352 S.W.3d at 228. We overrule appellant’s second issue.
IV. IMPROPER JURY ARGUMENT
In his third issue, appellant argues that the trial court erred in overruling his
objection to the State’s allegedly improper jury argument during the punishment
phase.
A. STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court’s ruling on an objection asserting improper jury
argument for an abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex.
Crim. App. 2010). “Proper jury argument generally falls within one of the
following four areas: (1) summation of the evidence; (2) reasonable deduction
from the evidence; (3) answer to argument of opposing counsel; and (4) plea for
law enforcement.” Nicholson v. State, 577 S.W.3d 559, 569–70 (Tex. App.—
Houston [14th Dist.] 2019, pet. ref’d). Improper jury arguments constitute non-
constitutional error; a non-constitutional error “that does not affect substantial
rights must be disregarded.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim.
App. 2011).
B. ANALYSIS
In his closing argument to the jury, appellant suggested that he had not
driven while drunk for fourteen years. In its final jury argument, the prosecutor
clarified that appellant simply had not been arrested for DWI in fourteen years.
This argument was in response to appellant’s own arguments, and thus, within the
7
realm of appropriate jury argument. See Nicholson, 577 S.W.3d at 569.
However, assuming without deciding that the prosecutor’s statement was
improper, appellant has not demonstrated that the comment affected his substantial
rights. See Freeman, 340 S.W.3d at 728. “In determining whether comments by the
prosecutor constitute reversible error, the argument is viewed in light of the facts
adduced at trial and in the context of the entire argument.” Brown v. State, No. 14-
98-01232-CR, 2001 WL 224768, at *2 (Tex. App.—Houston [14th Dist.] Mar. 8,
2001, pet. ref’d) (not designated for publication) (citing McGee v. State, 774
S.W.2d 229, 239 (Tex. Crim. App. 1989)). The prosecutor did not focus on the
challenged statement in her closing argument; instead, the prosecutor emphasized
that appellant had six previous DWIs. Similarly, the prosecutor’s co-counsel, in her
separate closing argument, focused on appellant’s history of DWIs. We conclude
that the probability of prejudice flowing from the alleged instance of improper jury
argument does not outweigh the probability that the jury verdict was grounded on
the proceedings and sufficient evidence. See Brown, 2001 WL 224768, at *2.
Therefore, we conclude that the trial court did not err in overruling
appellant’s objection. See Palacio v. State, 580 S.W.3d 447, 453 (Tex. App.—
Houston [14th Dist.] 2019, pet. ref’d) (concluding that the State’s allegedly
improper jury arguments were not harmful because “[t]he prejudicial effect of the
officer’s testimony was relatively low and the certainty of appellant’s conviction
absent the misconduct was relatively high.”). We overrule appellant’s third issue.
8
V. SAMUDIO ERROR
In his final issue, appellant argues that the sentence imposed was illegal due
to a Samudio error. Appellant asserts that the prior convictions the State introduced
for enhancement purposes did not establish that appellant had waived his right to
jury trial. Accordingly, he asserts that his sentence should be reduced to a class-B
misdemeanor.
A. STANDARD OF REVIEW & APPLICABLE LAW
“The State establishes a prima facie case of proof of a prior conviction by
introducing copies of the judgment and sentence in each case used for
enhancement and connecting them with the defendant.” Johnson v. State, 725
S.W.2d 245, 247 (Tex. Crim. App. 1987); see Blake v. State, 468 S.W.2d 400, 403
(Tex. Crim. App. 1971) (“The State was entitled to rely upon the judgments, valid
on their face. If the recitations in the judgments were incorrect so as to render the
convictions void and unusable for enhancement, it was incumbent upon [the
defendant] to show the same.”). The burden is on the defendant to prove that a
judgment introduced by the State is void. See Humphrey v. State, 681 S.W.2d 223,
224 (Tex. App.—Houston [14th Dist.] 1984, no pet.); see also Morton v. State, 870
S.W.2d 177, 179 (Tex. App.—Amarillo 1994, pet. ref’d) (“Once the judgment and
sentence were introduced and appellant was identified with them, the regularity of
the conviction was presumed unless appellant affirmatively showed that he did not
waive his right to trial by jury, thereby showing the conviction was void.”).
B. ANALYSIS
Appellant relies on Samudio to argue that the evidence of his prior
convictions were inadmissible because they failed to show that he waived his right
to a jury trial.
9
In Samudio, the defendant was found guilty of assault, a class-A
misdemeanor. See Samudio, 648 S.W.2d at 313. The judgment did not specifically
reflect that the defendant had waived his right to jury trial; rather, the judgment
contained the recitation: “No jury having been demanded.” Id. The Samudio court
observed that “the waiver of jury can never be presumed from a silent record, at
least on direct appeal.” Id. at 314 (emphasis added). Accordingly, in Samudio, the
court concluded that the State had failed to meet its constitutional burden of
establishing that the defendant had waived jury trial. See id.However, we find appellant’s reliance on Samudio to be unwarranted
because we have previously distinguished Samudio from cases such as appellant’s
case. Humphrey, 681 S.W.2d at 224. In Humphrey, we noted that:
Samudio involved a silent record challenged on direct appeal in which
the court of criminal appeals held the State failed to meet its
constitutional burden of establishing waiver of jury trial. Appellant’s
case involves a collateral attack on the prior Ohio conviction, and as
such the burden is on the Appellant to prove that the Ohio judgment
did not conform to the laws of Ohio.
Id. (emphasis added) (internal citation omitted); see Rogers v. State, 792 S.W.2d
841, 843 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (“The Samudio
formulation, however, does not govern collateral attacks on judgments of
conviction, such as those presented here.”).
Likewise, appellant’s case involves a collateral attack on his prior Texas
convictions. The State introduced the prior judgments and connected them to
appellant. Appellant stated that he had no objections to the introduction of the prior
convictions, and appellant even admitted that he had been previously convicted of
DWI. The burden was on appellant to prove that the judgments were void.
Appellant failed to meet his burden because he provided no evidence to show that
he did not waive his right to jury trial. See Humphrey, 681 S.W.2d at 224; see also
10
Ex parte Ibarra, No. 01-16-00313-CR, 2017 WL 1175557, at *4 (Tex. App.—
Houston [1st Dist.] Mar. 30, 2017, no pet.) (mem. op., not designated for
publication) (“A party fails to meet his burden if he fails to bring forward the entire
record from the prior conviction or other evidence to show that he did not waive
his right to a jury trial.”). We overrule appellant’s fourth issue.
VI. CONCLUSION
We affirm the trial court’s judgment.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
11