PD-1156-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/2/2015 11:51:05 PM Accepted 9/8/2015 12:50:42 PM NO. __________________ ABEL ACOSTA CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Steven Lowell Morton, Appellant SEPTEMBER 8, 2015 v. The State of Texas, Appellee
***************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
TENTH APPELLATE DISTRICT OF TEXAS
WACO, TEXAS
NO. 10-14-00113-CR
JOHNSON COUNTY TRIAL COURT NO. F47525
Brian K. Walker STATE BAR # 24043978 222 W. Exchange Avenue Fort Worth, TX 76164 (817) 625-2233 PHONE (817) 887-5981 FACSIMILE brian@walkerattorneys.com Attorney for Appellant
ORAL ARGUMENT REQUESTED 1 TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . 2 INDEX OF AUTHORITIES . . . . . . . . . . . . . . 3 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . 3 IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . 4 STATEMENT OF THE CASE . . . . . . . . . . . . . . 5 STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . . 6 QUESTIONS PRESENTED FOR REVIEW. . . . . . . . . . 6 ARGUMENT (INAPPROPRIATE DISTANCING) . . . . . . . 6 PRAYER . . . . . . . . . . . . . . . . . . . . 10 CERTIFICATE OF SERVICE . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 11
2 INDEX OF AUTHORITIES
CASES
Goodwin v. Balkcom, (11th Cir. 1982) 684 F.2d 794, 103 S.Ct. 1798, 76 L.Ed.2d 364 . . . . . . . 8, 9
Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) . . . . . . . . . . 7
People v. Wade, 44 Cal.3d 975, 750 P.2d 794, (1983) 460 U.S. 1098, 103 S.Ct 1798 . . . . . . 9
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) . . . 8
Strickland v. Washington, 466 U.S. 668 ,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . . . . . . . . . . . . 7, 8
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) . . . . 8
Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999) . . . . . . . . . . . . . 8
STATEMENT REQUESTING ORAL ARGUMENT
Oral argument is requested.
3 IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all counsel.
Appellant: Steven Lowell Morton
Trial Counsel William ‘Bill’ Mason Attorney at Law PO Box 767 Cleburne, TX 76031
Appellate Brian K. Walker Attorney for Appellant Attorney at Law 222 W. Exchange Ave. Fort Worth, Texas 76164
Appellee The State of Texas
Trial Attorneys Ryan Hill & Trey Brown Johnson County District Attorney’s Office 204 S. Buffalo St. Cleburne, Texas 76033
Appellate Attorney for David Vernon Appellee Johnson County Assistant District 204 S. Buffalo St. Cleburne, Texas 76033
Trial Judge Honorable John Neill 18th District Court Johnson County, Texas
4 All references to Texas statutes, rules, etc. are references to the latest edition published by West Publishing Company, unless otherwise indicated. STEVEN LOWELL MORTON, Appellant-Applying for Review V. THE STATE OF TEXAS, Appellee
************ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ************ TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
On April 7, 2014 an array was sworn and voir
dire commensed on factors pertaining to guilt and
innocence, and factors pertaining to punishment.
(R.R. Vol. 6, p. 4). On April 9, 2014, the jury
found Appellant guilty of possession of a
controlled substance in an amount of 4 grams or
more but less than 200 grams. (R.R. Vol. 8, p.
47). Later that day, after a trial on punishment,
the jury sentenced Appellant to sixty years in the
5 Institutional Division of the Texas Department of
Criminal Justice. (R.R. Vol. 8, p. 147).
STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written opinion on August 6, 2015.
The deadline for filing a Petition for
Discretionary Review is September 5, 2015.
QUESTIONS PRESENTED FOR REVIEW
Is it appropriate for the trial counsel to tell
the jury that he or she is court-appointed, or does
that amount to an inappropriate distancing of
himself, or herself, from the client?
ARGUMENT
At the beginning of his voir dire, Defense
Counsel introduced himself to the jury and
explained to them that he was “appointed by the
Court to represent Steven Morton.” (R.R. Vol. 6,
p. 133). Doing so was an inappropriate attempt to
distance himself from his client, which amounted to
ineffective assistance of counsel.
6 In reviewing an ineffective assistance of
counsel claim, the court is to evaluate the
effectiveness of counsel under the two-pronged test
enunciated in Strickland v. Washington. Strickland
v. Washington, 466 U.S. 668 ,104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d
770,770 (Tex. Crim. App. 1999). First the
defendant must show that his counsel’s performance
fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. To
prove this deficient representation, the defendant
must demonstrate that his counsel’s performance
deviated from prevailing professional norms. Id.
Secondly, the defendant must show prejudice. A
showing of prejudice requires the defendant to show
that there is a reasonable probability that, but
for his counsel’s unprofessional errors, the result
of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S.Ct at 2068. A
reasonable probability is a probability sufficient
to undermine confidence in the outcome. Id. The
failure to satisfy either prong of the Strickland 7 test negates a court’s need to consider the other.
Id. at 697, 104 S.Ct at 2069.
Appellant must prove by a preponderance of the
evidence that counsel was ineffective. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
An appellate court cannot speculate beyond the
record provided; rather, a reviewing court must
presume that counsel’s actions were taken as part
of a strategic plan for representing the client.
Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim.
App. 1999). The appellant must overcome the
presumption that his trial counsel’s strategy was
sound, and affirmatively demonstrate the alleged
ineffective assistance of counsel from the record.
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.
App. 2003).
By introducing himself to the jury as the
attorney “appointed by the Court to represent
Steven Morton,” Defense Counsel was inappropriately
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PD-1156-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/2/2015 11:51:05 PM Accepted 9/8/2015 12:50:42 PM NO. __________________ ABEL ACOSTA CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Steven Lowell Morton, Appellant SEPTEMBER 8, 2015 v. The State of Texas, Appellee
***************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
TENTH APPELLATE DISTRICT OF TEXAS
WACO, TEXAS
NO. 10-14-00113-CR
JOHNSON COUNTY TRIAL COURT NO. F47525
Brian K. Walker STATE BAR # 24043978 222 W. Exchange Avenue Fort Worth, TX 76164 (817) 625-2233 PHONE (817) 887-5981 FACSIMILE brian@walkerattorneys.com Attorney for Appellant
ORAL ARGUMENT REQUESTED 1 TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . 2 INDEX OF AUTHORITIES . . . . . . . . . . . . . . 3 STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . 3 IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . 4 STATEMENT OF THE CASE . . . . . . . . . . . . . . 5 STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . . 6 QUESTIONS PRESENTED FOR REVIEW. . . . . . . . . . 6 ARGUMENT (INAPPROPRIATE DISTANCING) . . . . . . . 6 PRAYER . . . . . . . . . . . . . . . . . . . . 10 CERTIFICATE OF SERVICE . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 11
2 INDEX OF AUTHORITIES
CASES
Goodwin v. Balkcom, (11th Cir. 1982) 684 F.2d 794, 103 S.Ct. 1798, 76 L.Ed.2d 364 . . . . . . . 8, 9
Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) . . . . . . . . . . 7
People v. Wade, 44 Cal.3d 975, 750 P.2d 794, (1983) 460 U.S. 1098, 103 S.Ct 1798 . . . . . . 9
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) . . . 8
Strickland v. Washington, 466 U.S. 668 ,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . . . . . . . . . . . . 7, 8
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) . . . . 8
Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999) . . . . . . . . . . . . . 8
STATEMENT REQUESTING ORAL ARGUMENT
Oral argument is requested.
3 IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all counsel.
Appellant: Steven Lowell Morton
Trial Counsel William ‘Bill’ Mason Attorney at Law PO Box 767 Cleburne, TX 76031
Appellate Brian K. Walker Attorney for Appellant Attorney at Law 222 W. Exchange Ave. Fort Worth, Texas 76164
Appellee The State of Texas
Trial Attorneys Ryan Hill & Trey Brown Johnson County District Attorney’s Office 204 S. Buffalo St. Cleburne, Texas 76033
Appellate Attorney for David Vernon Appellee Johnson County Assistant District 204 S. Buffalo St. Cleburne, Texas 76033
Trial Judge Honorable John Neill 18th District Court Johnson County, Texas
4 All references to Texas statutes, rules, etc. are references to the latest edition published by West Publishing Company, unless otherwise indicated. STEVEN LOWELL MORTON, Appellant-Applying for Review V. THE STATE OF TEXAS, Appellee
************ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ************ TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
On April 7, 2014 an array was sworn and voir
dire commensed on factors pertaining to guilt and
innocence, and factors pertaining to punishment.
(R.R. Vol. 6, p. 4). On April 9, 2014, the jury
found Appellant guilty of possession of a
controlled substance in an amount of 4 grams or
more but less than 200 grams. (R.R. Vol. 8, p.
47). Later that day, after a trial on punishment,
the jury sentenced Appellant to sixty years in the
5 Institutional Division of the Texas Department of
Criminal Justice. (R.R. Vol. 8, p. 147).
STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written opinion on August 6, 2015.
The deadline for filing a Petition for
Discretionary Review is September 5, 2015.
QUESTIONS PRESENTED FOR REVIEW
Is it appropriate for the trial counsel to tell
the jury that he or she is court-appointed, or does
that amount to an inappropriate distancing of
himself, or herself, from the client?
ARGUMENT
At the beginning of his voir dire, Defense
Counsel introduced himself to the jury and
explained to them that he was “appointed by the
Court to represent Steven Morton.” (R.R. Vol. 6,
p. 133). Doing so was an inappropriate attempt to
distance himself from his client, which amounted to
ineffective assistance of counsel.
6 In reviewing an ineffective assistance of
counsel claim, the court is to evaluate the
effectiveness of counsel under the two-pronged test
enunciated in Strickland v. Washington. Strickland
v. Washington, 466 U.S. 668 ,104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d
770,770 (Tex. Crim. App. 1999). First the
defendant must show that his counsel’s performance
fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. To
prove this deficient representation, the defendant
must demonstrate that his counsel’s performance
deviated from prevailing professional norms. Id.
Secondly, the defendant must show prejudice. A
showing of prejudice requires the defendant to show
that there is a reasonable probability that, but
for his counsel’s unprofessional errors, the result
of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S.Ct at 2068. A
reasonable probability is a probability sufficient
to undermine confidence in the outcome. Id. The
failure to satisfy either prong of the Strickland 7 test negates a court’s need to consider the other.
Id. at 697, 104 S.Ct at 2069.
Appellant must prove by a preponderance of the
evidence that counsel was ineffective. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
An appellate court cannot speculate beyond the
record provided; rather, a reviewing court must
presume that counsel’s actions were taken as part
of a strategic plan for representing the client.
Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim.
App. 1999). The appellant must overcome the
presumption that his trial counsel’s strategy was
sound, and affirmatively demonstrate the alleged
ineffective assistance of counsel from the record.
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.
App. 2003).
By introducing himself to the jury as the
attorney “appointed by the Court to represent
Steven Morton,” Defense Counsel was inappropriately
distancing himself from Appellant. (R.R. Vol. 6,
p. 133). Appellate Counsel has researched both
8 Federal and State cases. Appellate Counsel has
been unable to find any Texas cases on point.
However, The 11th Circuit Court of Appeals addressed
this issue in 1983 and reversed a defendant’s
murder conviction. Trial counsel had informed the
jury of his appointed status. The Court stated,
“…we deplore the sentiments expressed by Goodwin’s
trial counsel…“ The Court also stated, “…reminding
a jury that the undertaking is not by choice, but
in service to the public, effectively stacks the
odds against the accused.” Goodwin v. Balkcom,
(11th Cir. 1982) 684 F.2d 794, 806, cert. den.
(1983) 1002 460 U.S. 1098, 103 S.Ct. 1798, 76
L.Ed.2d 364. The Supreme Court of California cited
Goodwin v. Balkcom for the same proposition.
People v. Wade, 44 Cal.3d 975, 750 P.2d 794, 244
Cal.Rptr. 905, Cert. Denied, (1983) 460 U.S. 1098,
103 S.Ct 1798.
There is no conceivable trial strategy for a
defense counsel to tell the jury that he or she is
court appointed. The only reason for doing so is
9 to insulate oneself from his or her client, and to
let the jury know that trial counsel did not choose
to represent the criminal defendant. This obious
attempt to distance himself from Appellant most
definitely put Appellant in a bad light. Nothing
positive could come from this distancing.
Appellant believes that it is time that this
honorable court consider this important issue.
Accordingly, we humbly request review for this
court to determine if it is appropriate for court
appointed counsel to announce to the jury that he
or she is court appointed.
PRAYER
WHEREFORE, PREMISES CONSIDERED, STEVEN LOWELL
MORTON, Appellant, prays that this Petition for
Discretionary Review be granted; that this case be
submitted to the Court; that the Court of Appeals’
decision be reversed and for such other relief for
which he shows himself entitled.
Respectfully Submitted,
10 /s/ Brian K. Walker By: BRIAN K. WALKER 222 W. Exchange Ave. Fort Worth, Texas 76164 (817) 625-2233 Phone (817) 887-5981 Fax Attorney for Appellant brian@walkerattorneys.com
CERTIFICATE OF SERVICE A copy of this petition was served by first class mail to the District Attorney, Johnson County by electronic delivery and to the State Prosecuting Attorney at P.O. Box 12405, Austin, Texas 78711 on the 2nd day of September, 2015.
/s/ Brian K. Walker BRIAN K. WALKER
CERTIFICATE OF COMPLIANCE I certify that this document complies with the length requirements as set forth by the Texas Rules of Appellate Procedure in that this document contains 1551 words, and that the document is in 14 point type.
11 TENTH COURT OF APPEALS Chief Justice McLennan County Courthouse Tom Gray 501 Washington Avenue, Rm 415 Clerk Justice Waco, Texas 76701-1373 Sharri Roessler Rex D. Davis Phone: (254) 757-5200 Fax: (254) 757-2822 Al Scoggins
August 6, 2015
In accordance with the enclosed Memorandum Opinion, below is the judgment in the numbered cause set out herein to be entered in the Minutes of this Court as of the 6th day of August, 2015.
10-14-00113-CR STEVEN LOWELL MORTON v. THE STATE OF TEXAS - ON APPEAL FROM THE 18TH DISTRICT COURT OF JOHNSON COUNTY - TRIAL COURT NO. F47525 – AFFIRMED - Memorandum Opinion by Justice Scoggins:
“This cause came on to be heard on the transcript of the record of the Court below, and the same being considered, because it is the opinion of this Court that there was no error in the judgment, it is ordered, adjudged and decreed by the Court that the judgment be in all things affirmed, and that the appellant pay all costs in this behalf expended and that this decision be certified below for observance.”