Morrow v. State

• Decision Date: 19 February 2016
• Docket Number: No. 06–15–00013–CR,06–15–00013–CR
• Citation: 486 S.W.3d 139
• Parties: Gary Christopher Morrow, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

486 S.W.3d 139

Gary Christopher Morrow, Appellant

v.The State of Texas, Appellee

No. 06–15–00013–CR

Court of Appeals of Texas, Texarkana.

Submitted: January 11, 2016

Decided: February 19, 2016

Micah Belden, Micah Belden, PC, Sherman, TX, for appellant.

John B. Setterberg, Assistant District Attorney, Bonham, TX, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Moseley

In the midst of a turbulent divorce, a camouflage-clad Gary Christopher Morrow broke a garage window to gain entrance into the rural Ivanhoe home occupied by his wife, Gina Morrow, during the early morning hours of May 5, 2013. As he entered the home's master bedroom where Gina was asleep with her boyfriend, Donny Mangum, Morrow wielded a hunting knife and a forty-caliber handgun. Enraged, Morrow began shouting at Gina and threatened to kill both Gina and Mangum. Eventually, Morrow undertook to take Mangum, Gina, and Marissa (Gina's adult daughter) outside the house, at which point Mangum was able to flee. Mangum's escape angered Morrow even further, and he threatened Gina and Marissa with death. Morrow then ordered Gina into her truck in the nearby driveway, where he joined her. Once inside the truck, Gina was forced under a continued threat of death to perform oral sex on Morrow.

When Morrow saw flashing police lights coming toward the house, he fled into the night. Police were able to track Morrow to Howe, Texas (in neighboring Grayson County), where he had fled to the apartment of a former girlfriend. Following a lengthy and intense standoff, Morrow surrendered to police and was taken into custody.

As a result of these events, Morrow was indicted for seven felonies. These constituted three counts of aggravated assault with a deadly weapon, one count of burglary of a habitation, one count of aggravated kidnapping, and two counts of aggravated sexual assault. The seven cases were consolidated and tried together to a jury. The only one of those charges of which Morrow was acquitted was one of the charges of aggravated sexual assault. Morrow was sentenced to prison terms of thirty years in one case, forty years in a second case, and twenty years each in four cases (all of which were to run concurrently) with fines totaling $60,000.00 in the six cases. Morrow has appealed all of the convictions.¹

In this case, Morrow appeals his conviction of burglary of a habitation,² for which he received a sentence of twenty years' imprisonment and a fine of $10,000.00. He contends that (1) counsel was ineffective for failing to investigate facts that he maintains (a) could have been employed in an attempt to mitigate punishment, and (b) could have led to a potential insanity defense; (2) the trial court erred in failing to conduct an informal competency evaluation on counsel's request; (3) the trial court erred in the admission of hearsay evidence during the guilt/innocence phase of the trial; (4) the trial court erred in the admission of hearsay evidence of bad acts during the punishment phase of the trial, and (5) the evidence is legally insufficient to convict Morrow of burglary of a habitation.

Because we find that (1) Morrow did not receive ineffective assistance of counsel, (2) the trial court properly exercised its discretion in having declined to conduct an informal competency evaluation, (3) there was no admission of improper hearsay evidence, and (4) the evidence is legally sufficient to support Morrow's burglary conviction, we affirm the judgment of the trial court.

Following his conviction, Morrow filed a motion for new trial. After a full evidentiary hearing on Morrow's motion for new trial, the trial court denied the motion. On appeal, Morrow claims that the evidence presented at the hearing proved that trial counsel was ineffective in failing to investigate facts that could have been used in mitigation of punishment and that could have led to a potential insanity defense.

Standard of Review for Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution grants an accused the right to have the assistance of counsel for his defense, a right that has been interpreted to require the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. The right to effective assistance of counsel does not mean, however, that counsel must be errorless or perfect. Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). A conviction resulting from ineffective assistance of counsel is constitutionally infirm. Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

Ineffective assistance of counsel claims are evaluated under the two-part test formulated in Strickland,

requiring a showing of both deficient performance and prejudice. Id. at 689, 104 S.Ct. 2052 ; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999) ; Fox v. State, 175 S.W.3d 475, 485 (Tex.App.–Texarkana 2005, pet. ref'd). Ineffective assistance of counsel claims must be firmly rooted in the record, with the record itself affirmatively demonstrating the alleged ineffectiveness. Lopez v. State, 343 S.W.3d 137, 142–43 (Tex.Crim.App.2011). Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n. 14 (Tex.Crim.App.2006). Thus, we need not examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

To prevail on his ineffective assistance claims, Morrow must prove by a preponderance of the evidence that (1) his counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Id. at 688, 104 S.Ct. 2052

; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). We indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance and was motivated by sound trial strategy. See

Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994).

Evidence Presented During Hearing for Motion for New Trial

Joey Fritts was Morrow's trial counsel. At Morrow's hearing on his motion for a new trial, Fritts testified that before trial, Morrow and his mother, Shelia Morrow, had advised him that Morrow had once overdosed with drugs and alcohol, and on a different occasion, had threatened to commit suicide, this threat being the basis for his commitment to a mental institution. Fritts was also informed that Morrow had been hospitalized at Dallas' Parkland Hospital because he had been experiencing mental health problems. Fritts (who explained that he had been licensed as a registered nurse for thirty years) “got the feeling” based on his medical training that these incidents were related to Morrow's depression.

Fritts' notes of a meeting with Shelia indicate that Morrow was also hospitalized at Green Oaks Mental Hospital during December 2012 for two days and that Morrow had suffered severe bouts of depression on five or six different occasions. Fritts was aware that “people thought” Morrow had some “mental history.” Fritts also received a letter from Shelia dated January 24, 2013, in which she stated that when Morrow went to Gina's house on May 4, 2013, “[d]ue to weeks of sleep deprivation and depression he [was] not thinking straight.” She continued, “I have all of his text and his kids as witnesses as what it is doing to him. Including suicidal thoughts.” Additionally, Fritts knew Morrow was suicidal on the night of his arrest. The arrest report from the Howe Police Department (where Morrow was tracked after the incident giving rise to the charges at trial), admittedly reviewed by Fritts prior to trial, stated Morrow told the contacting officer that “he had no intentions of exiting the apartment alive” and that it had been his intention to “end it” by killing himself. The offense report of the Fannin County Sheriff's Department (also reviewed by Fritts) indicated that Morrow made “suicidal threats throughout the incident” and made similar threats to Gina on the telephone immediately after the incident. Fritts testified that the mere statement that Morrow wanted to commit suicide did not mean he was mentally ill.

Fritts indicated that he never spoke to the trial court about having an expert appointed to review Morrow for a possible insanity or temporary insanity defense because there was no evidence in the record other than his threat to commit suicide that would show that he suffered from a mental illness. Further, Morrow had told law enforcement officers he had made the threats of suicide solely as a test to determine if his wife still cared about him. Fritts said that he never had any reason to think Morrow was insane that and he had no reason to believe Morrow was incompetent to stand trial.

As to the competency issues, Fritts explained that Morrow demonstrated that he knew what Fritts' responsibility was as his attorney, that he knew who the trial court and the prosecutor were, that Morrow filed some of his own motions, and that he understood how the court operated.

Fritts believed that Morrow undoubtedly understood the trial process, understood the nature of the charges against him and the ranges of punishment associated with those charges, and had a fair grasp of the facts of the case. Morrow also participated with Fritts in the presentation and preparation of his defense.

Even so, at one point during the trial, Fritts raised the issue of Morrow's competency with the trial court. At the hearing on Morrow's motion for new trial, Fritts testified that he probably should not have raised that issue because he believed Morrow was competent.

After having reviewed the Parkland Hospital records and the Medical Center of McKinney records subpoenaed for the hearing, Fritts acknowledged that Morrow was involuntarily committed in 2012. Fritts was aware of the fact that he could have obtained these records pursuant to a Health Insurance Portability and Accountability Act (HIPAA) release, so that the State would not have had access...