                                                              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.

                              /s/ Brian K. Walker
                              BRIAN K. WALKER




                         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.”
