Johnson v. State

• Decision Date: 21 March 2012
• Docket Number: No. 14–10–00292–CR.,14–10–00292–CR.
• Citation: 352 S.W.3d 224
• Parties: Leon Charles JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

352 S.W.3d 224

Leon Charles JOHNSON, Appellant,

v.The STATE of Texas, Appellee.

No. 14–10–00292–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Sept. 29, 2011.Discretionary Review Refused March 21, 2012.

Nicole Wignall Deborde, Houston, for appellant.

Michelle R. Townsend, Houston, for state.

Panel consists of Chief Justice HEDGES and Justices FROST and CHRISTOPHER.

OPINION

TRACY CHRISTOPHER, Justice.

A jury convicted appellant Leon Charles Johnson on one count of murder. Punishment was assessed at sixty years' imprisonment. In a single issue, appellant contends the trial court abused its discretion by denying defense counsel's motion to withdraw. We find that the following factors are relevant in our review of the trial court's decision: (1) whether counsel offered good cause to withdraw; (2) the necessity for the withdrawal; (3) the client's Sixth Amendment right to counsel of choice; (4) the 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 counsel's withdrawal; and (6) counsel's role, if any, in creating the need to withdraw. After analyzing each of these factors we conclude that the trial court did not abuse his discretion in denying the motion. Accordingly, we affirm.

BACKGROUND

Appellant was charged by indictment with the homicide of Blake Lunde. On the afternoon of April 5, 2008, Lunde died from a penetrating gunshot wound to the torso. In the moments before being shot, Lunde was driving away from a gas station, where a fight had just erupted between his friend, Fred Soufflee, and approximately five other men. Soufflee testified that as he and Lunde escaped, appellant started shooting at their vehicle from a distance of about four or five feet. Lunde was pronounced dead at the scene.

Following the shooting, a nearby apartment complex was canvassed for possible witnesses. Based on the ensuing investigation, two witnesses from the complex were called to testify on behalf of the State: Gabbriel Johnson, who observed the shooting from the parking lot, and Jessica Walker, who witnessed the incident from her balcony. Both witnesses positively identified appellant as the shooter. Gabbriel ¹, who is unrelated to appellant, specifically testified that she saw appellant obtain a gun from someone in the complex just before the shooting occurred. When she later heard shots being fired, Gabbriel claimed that she turned around from where she was sitting and witnessed appellant shooting at a truck.

On cross-examination, Thomas Lewis, one of appellant's two trial attorneys, questioned whether Gabbriel had actually witnessed the shooting as she claimed:

Q. Ms. Johnson, you and I have had a discussion in the Harris County jail on the second day of March about this case, haven't we?

A. Yes.

Q. And I asked you questions about this case, didn't I?

A. Yes.

Q. And you answered my questions, didn't you?

A. Yes.

Q. Isn't it true that you told me you didn't see the shooting at that time?

A. No.

In a bench conference, Lewis moved immediately for a mistrial and to withdraw as counsel of record. With the jury retired, the following exchange occurred:

Mr. Lewis: Your Honor, I have a Motion for a Mistrial and a Motion to Withdraw as attorney of record. And the basis for these motions is that I am now a witness in the case. I am a witness as to a prior inconsistent statement by a witness, Gabbriel Johnson. And in support of that motion, may I make a bill?

The Court: Well, I'm going to ask you this question: Did you know that this witness was going to testify?

Mr. Lewis: Yes, I did.

The Court: Did you know that when you went over to talk to her?

Mr. Lewis: Yes, I did.

The Court: And you went by yourself?

Mr. Lewis: Yes, I did.

The Court: Why? Why wouldn't you take an investigator or somebody else to be there so you could call them as a witness in case she testified in a different way?

Mr. Lewis: I thought that if there was anything about the conversation that led me to believe that she would change her story that I would return and make a record of it.

The Court: And you—let's start it this way: I'm assuming that she gave a statement to the police?

[Prosecutor]: That's correct, Judge.

The Court: At some point in time during this investigation or before this case went to trial, she said to law enforcement that she saw the shooting.

Mr. Lewis: No. We have her statement—

The Court: I'm not asking you.

[Prosecutor]: Yes, Judge.

The Court: So, there was at least some statement by this witness at some point in time prior to today that she saw this defendant with a gun doing some shooting?

[Prosecutor]: Yes, Judge.

The Court: Okay. So, Mr. Lewis, knowing that, you went into the jail to talk to her but didn't take anybody with you in case she changed her story?

Mr. Lewis: Judge, the offense report that was made available to me indicates that this witness told the police that she saw Mr. Johnson around the time of the shooting and that she saw him immediately afterwards, but the offense report does not indicate that she saw the actual shooting take place and be done by Mr. Johnson.

The Court: Which offense report?

Mr. Lewis: Judge, if I may have a moment, I'll find it.

The Court: Is there only one offense report that has that information?

[Prosecutor]: I can read 2.053. This is a statement from Gabbriel Johnson. I'll just cut to the pertinent part. “Leon got a gun, ran across the field, and started shooting at the truck. Leon had fought the guy at the gas station. Gabbriel does not know—”

The Court: So, there's something in the report showing that.

Mr. Lewis: But she does not say in the statement that she actually saw the shooting take place. She says she saw him run back and forth with the gun and heard the shots.

The Court: Okay. Well, the point being is that you still went in there without somebody else to come in and testify. So, I'm going to have to deny your Motion for a Mistrial and your Motion to Withdraw.

The proceedings resumed without Lewis ever making his bill of exceptions. Ultimately, the defense rested without presenting any evidence. Lewis never called himself to testify, nor was he called by co-counsel. On appeal, appellant argues that the trial court erred by denying Lewis's motion to withdraw.

STANDARD OF REVIEW

We review a trial court's decision on an attorney's motion to withdraw for an abuse of discretion. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App.2000); Brewer v. State, 649 S.W.2d 628, 631 (Tex.Crim.App.1983). The trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993). As long as the trial court's ruling falls within the “zone of reasonable disagreement,” there is no abuse of discretion and the trial court's ruling will be upheld. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997). Under this standard, we may only consider the information presented to the trial court at the time of its decision. Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex.Crim.App.1990); Williams v. State, 154 S.W.3d 800, 802 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd).

Existing case law has not articulated a clear, governing standard for determining whether a trial court acts arbitrarily when ruling on a motion to withdraw. While a number of opinions have examined a trial court's decision on an attorney's motion to withdraw, such motions have generally been based on disagreements between counsel and client. Often, clients will seek substitute representation after complaining of personality conflicts with their appointed counsel. See, e.g., King, 29 S.W.3d at 565–66; Viges v. State, 508 S.W.2d 76, 76–77 (Tex.Crim.App.1974). Occasionally, retained counsel may also seek to withdraw because the client is uncooperative or unwilling to pay legal fees. See, e.g., Wallace v. State, 618 S.W.2d 67, 70 (Tex.Crim.App.1981); Ahmadi v. State, 864 S.W.2d 776, 781 (Tex.App.-Fort Worth 1993, pet. ref'd). In such cases, reviewing courts do not appear to follow any specific guidelines when evaluating the trial court's decision. Rather, courts tend to examine the individual circumstances of each case. See, e.g., King, 29 S.W.3d at 565–66; see also Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App.1990) (observing that “[c]onflicts of personality and disagreements between counsel and client are not automatic grounds for withdrawal.”).

Appellant's case differs from prior precedent because the attorney here moved to withdraw, not out of disagreement with the client, but in order to testify as a material witness on behalf of the client. To our knowledge, only two cases have been decided with similar issues and fact patterns, and both are unreported memorandum opinions lacking precedential value. See Ramirez v. State, No. 01–04–00196–CR, 2005 WL 2123791, at *5–6 (Tex.App.-Houston [1st Dist.] Aug. 31, 2005, pet. ref'd) (mem. op., not designated for publication); Joiner v. State, No. 05–91–01093–CR, 1993 WL 524693, at *3–4 (Tex.App.-Dallas Dec. 17, 1993, no pet.) (mem. op., not designated for publication). As with the majority of cases dealing with an attorney's motion to withdraw, these nonbinding opinions fail to articulate any specific guidelines that might be useful in evaluating the trial court's decision.

In the absence of a governing test, we must examine the circumstances of each case before deciding whether a trial court abuses its discretion. Cf. Ex parte Windham, 634 S.W.2d 718, 720 (Tex.Crim.App.1982) (balancing a number of case-specific factors when evaluating whether a motion for continuance should have been granted to afford a defendant his counsel of choice). Though not an exhaustive list, we find that the following factors are relevant in evaluating a trial court's decision on counsel's motion to withdraw: (1) whether counsel offered good cause to withdraw; (2) the necessity for the...