Frank Hamilton Hardy v. The State of Texas

Case Number: 01-16-00084-CR

Judge: Evelyn Keyes

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Christopher Conrad
Daniel McCrory
The Honorable Kim K Ogg

Defendant's Attorney:

Randall J. Ayers

Description:

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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


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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


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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


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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.2
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.
2 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.


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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


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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


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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


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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


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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


13

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.3
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.”
3 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.


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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


15

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.


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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


17

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


18

counsel’s actions fell below an objective standard of reasonableness.4 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.
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
4 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 crossexamined 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).


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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.

Outcome: