                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00015-CR



          JOSHUA RAY TEMPLE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 6th District Court
               Lamar County, Texas
               Trial Court No. 28106




      Before Morriss, C.J., Burgess and Stevens, JJ.
            Opinion by Chief Justice Morriss
                                          OPINION

       After a jury trial, Joshua Ray Temple was found guilty of evading arrest or detention with

a motor vehicle and was sentenced to forty years in prison. On appeal, Temple argues that he

received ineffective assistance of counsel, the trial court erred by denying his counsel’s motion to

withdraw, and the trial court erred by denying his motion for continuance. We affirm the trial

court’s judgment because (1) Temple failed to show his counsel’s performance was deficient;

(2) the trial court was within its discretion to deny the motion to withdraw; and (3) no error

regarding the motion for continuance was preserved.

       In the latter part of 2018, Officer Jeffery Padier of the Paris Police Department was

patrolling traffic in Paris, Texas, when he saw a vehicle being driven by Temple. Padier noticed

that the vehicle had an expired registration sticker and was traveling faster than the other cars on

the road. Padier activated his overhead lights and siren and pursued the vehicle, but lost sight of

it after it made a series of turns. When Padier located the car again, it accelerated toward his

marked patrol car. Anticipating a collision, Padier angled his car across the lane to absorb the

potential impact. Temple stopped his car and quickly drove away in reverse. Temple’s car hit a

telephone pole, ending the pursuit and resulting in Temple’s arrest.

       Temple’s indictment alleged that Temple used or exhibited the vehicle as a deadly weapon

and that Temple had two prior felony convictions. In preparation for the jury trial set for January 2,

2019, Temple’s court-appointed counsel, David Turner, met with Temple about five days earlier.

Counsel claimed that, during his meeting, Temple “became very irate” with him and called him

“any number of vulgar names,” causing Turner to conclude that his resultant “intense dislike” for


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Temple would impair his ability to exercise “appropriate judgment” and “give objective advice to

him.” After the meeting was terminated, counsel filed a motion to withdraw, alleging that he was

“unable to effectively communicate” with Temple. The State opposed the motion, arguing that

Temple merely wanted to delay his trial. Due to the end-of-year holidays, the hearing could not

be held until December 31, 2018. The trial court denied the motion.

       On January 2, 2019, the day of voir dire, but before jury selection, Temple made an oral

motion for a thirty-day continuance so that he could obtain new counsel and prepare for trial. The

trial court denied the motion, and as a result of trial, the jury found Temple guilty as charged,

found that he used or exhibited his car as a deadly weapon, found the indictment’s enhancement

allegations to be true, and assessed Temple a sentence of forty years in prison. The trial court

sentenced Temple accordingly.

(1)    Temple Failed to Show His Counsel’s Performance Was Deficient

       Temple argues that his trial counsel was ineffective because he failed to prepare for trial

and held a personal animus against him.

       As many cases have noted, the right to counsel does not mean the right to errorless counsel.

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim

of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). See also Ex parte Imoudu, 284 S.W.3d

866, 869 (Tex. Crim. App. 2009). The first prong requires a showing that counsel’s performance

fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement

can be difficult to meet since there is “a strong presumption that counsel’s conduct falls within the

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wide range of reasonable professional assistance.” Id. at 689. “This measure of deference,

however, must not be watered down into a disguised form of acquiescence.” Profitt v. Waldron,

831 F.2d 1245, 1248 (5th Cir. 1987) (finding counsel ineffective in failing to request medical

records and relying on court-appointed competency examination when he knew client had escaped

from mental institution).

       The second Strickland prong, sometimes referred to as “the prejudice prong,” requires a

showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result

of the proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable

probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.

Thus, in order to establish prejudice,

       an applicant must show “that counsel’s errors were so serious as to deprive
       defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at
       687. It is not sufficient for Applicant to show “that the errors had some conceivable
       effect on the outcome of the proceeding.” Id. at 693 . . . Rather, [he] must show
       that “there is a reasonable probability that, absent the errors, the fact-finder would
       have had a reasonable doubt respecting guilt.” Id. at 695.

               ....

               The applicant has the burden to prove ineffective assistance of counsel by a
       preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
       App. 1999). Allegations of ineffectiveness must be based on the record, and the
       presumption of a sound trial strategy cannot be overcome absent evidence in the
       record of the attorney’s reasons for his conduct. Busby v. State, 990 S.W.2d 263,
       269 (Tex. Crim. App. 1999). The reviewing court must look to the totality of the
       representation, and its decision must be based on the facts of the particular case,
       viewed at the time of counsel’s conduct so as to eliminate hindsight bias.
       Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In all cases, the “ultimate focus of
       inquiry must be on the fundamental fairness of the proceeding.” Id. at 696, 104
       S.Ct. 2052.

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
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       A failure to make a showing under either prong defeats a claim for ineffective assistance.

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). Allegations of ineffectiveness

“must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App.

2002) (quoting Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). The Strickland

test “of necessity requires a case-by-case examination of the evidence.” Williams v. Taylor, 529

U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring

in judgment)).

       Temple first argues that the “undisputed” evidence established that counsel did not meet

with him until December 28, 2018, just days before trial, and therefore, counsel was ineffective

because he “could not possibly” have prepared for trial. During the hearing on the motion to

withdraw, Temple claimed not to have had a single conversation with counsel about the case.

However, counsel’s billing records, admitted after trial on January 8, 2019, indicate that counsel

went to the jail and met with Temple on November 12, 2018, and December 18, 2018, in addition

to their December 28 meeting. The record further reflects that counsel obtained discovery in the

case before Temple’s indictment on October 11, 2018. Temple fails to direct this Court to any

other action or inaction of counsel indicating that he failed to prepare for trial. See Ex parte

Amezquita, 223 S.W.3d 363, 368 (Tex. Crim. App. 2006) (counsel failed to investigate information

indicating someone else committed offense); Melton v. State, 987 S.W.2d 72, 77 (Tex. App.—

Dallas 1998, no pet.) (ineffective assistance for failing to independently investigate). Therefore,

this argument fails.


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       Temple also argues that counsel was ineffective because he held a personal animus toward

him. Counsel admitted to having personal animus toward Temple and voluntarily asked to be

relieved from his appointed representation. However, counsel’s dislike of his client does not

constitute deficient performance for purposes of ineffective assistance. Cf. In re A.H.L., III, 214

S.W.3d 45, 54–55 (Tex. App.—El Paso 2006, pet. denied) (citing Rickman v. Bell, 131 F.3d 1150,

1158 (6th Cir. 1997)). Here, despite counsel’s stated feelings, he did not express any hostility

toward Temple in front of the jury, and even after his motion to withdraw was denied, he zealously

advocated Temple’s cause through his representation, filing a motion in limine, conducting a

rigorous cross-examination of Padier, the State’s sole witness, presenting the defense’s case-in-

chief through direct examination of Temple, and making impassioned and logical closing

arguments. Therefore, this argument also fails.

       We overrule this point of error.

(2)    The Trial Court Was Within Its Discretion to Deny the Motion to Withdraw

       Temple also contends that the trial court erred in denying counsel’s motion to withdraw.

       A trial court has discretion to determine whether counsel should be allowed to withdraw

from a case. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). A trial court abuses its

discretion when it acts without guiding rules or principles. Robbins v. State, 88 S.W.3d 256, 259–

60 (Tex. Crim. App. 2002). We review the trial court’s ruling in light of what was before the trial

court at the time the ruling was made and uphold the trial court’s judgment if it lies within the zone

of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).




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       The right to counsel may not be manipulated to obstruct the judicial process or interfere

with the administration of justice.      King, 29 S.W.3d at 566.        Personality conflicts and

disagreements about trial strategy typically are not valid grounds for withdrawal. Id. A trial court

has no duty to search for counsel agreeable to a defendant. Id. Furthermore, a “defendant cannot

wait until the day of trial to demand different counsel or to request that counsel be dismissed so

that he or she may retain other counsel.” Neal v. State, 689 S.W.2d 420, 427 (Tex. Crim. App.

1984); Gilmore v. State, 323 S.W.3d 250, 264 (Tex. App.—Texarkana 2010, pet. ref’d).

       Here, counsel sought to withdraw after Temple got angry with him and called him vulgar

names during their meeting at the jail on December 28, 2018. The State opposed the motion,

arguing that Temple was deliberately attempting to engineer a way to delay his trial. Temple made

several telephone calls from jail to his girlfriend in the days just before and just after his

December 28 meeting with counsel, and recordings of those telephone calls were admitted into the

record during the motion to withdraw hearing. The recordings revealed that Temple intended to

fire his court-appointed counsel and hire other representation, but in order to do so, he needed

more time. In the calls before the meeting, Temple told his girlfriend, “[I]f I don’t have another

lawyer when I get ready to fire [counsel], they won’t let me fire him, and I’m gonna get stuck with

him for this jury trial.” He continued, “I got to get a lawyer, and get a continuance on [January]

2nd.” Counsel filed his motion to withdraw on December 28, and in a telephone call the following

day, Temple told his girlfriend, “With [counsel] quitting now, they’ve got to give me an

extension.”




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        Although counsel met with Temple November 12 and December 18, Temple did not ask

counsel to withdraw at those meetings or secure different counsel. Based on the evidence, the trial

court was within its discretion to find that Temple was manipulating his right to counsel by being

intentionally uncooperative with counsel to get him to withdraw and trigger a continuance just

days before trial. See King, 29 S.W.3d at 566; Gilmore, 323 S.W.3d at 264. Therefore, we overrule

this point of error.

(3)     No Error Regarding the Motion for Continuance Was Preserved

        Finally, Temple argues that the trial court erred in denying his oral motion for continuance.

The State contends that Temple has failed to preserve this issue for our review. We agree.

        On the written motion of either party that shows a sufficient cause that is set forth fully in

the motion, the trial court may continue a criminal action. TEX. CODE CRIM. PROC. ANN. art. 29.03;

Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). Further, “[a]ll motions for

continuance must be sworn to by a person having personal knowledge of the facts relied on for the

continuance.” TEX. CODE CRIM. PROC. ANN. art. 29.08; Harrison, 187 S.W.3d at 434. The Texas

Court of Criminal Appeals has “construed these statutes to require a sworn written motion to

preserve appellate review from a trial judge’s denial of a motion for a continuance.” Anderson v.

State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009), declined to follow on other grounds, Grado

v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014) (citations omitted). Thus, when the trial

court denies a party’s unsworn oral motion for continuance, the party forfeits any right to complain

about the denial on appeal. Id.




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       In this case, Temple did not file a sworn motion for continuance, but relied solely on his

unsworn oral motion asserted on the morning of jury selection. Consequently, Temple forfeited

his right to complain on appeal of the trial court’s denial of his motion for continuance. See id.

We overrule this issue.

       We affirm the trial court’s judgment.



                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:       June 13, 2019
Date Decided:         July 3, 2019

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