IN THE
TENTH COURT OF APPEALS
No. 10-14-00113-CR
STEVEN LOWELL MORTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F47525
MEMORANDUM OPINION
In three issues, appellant, Steven Lowell Morton, challenges his conviction for
unlawful possession of a controlled substance in an amount greater than four grams but
less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010).
Specifically, Morton contends that: (1) the trial court erred by not providing an article
38.23 instruction in the jury charge, see TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005);
(2) his sentence is disproportionate to his criminal acts; and (3) trial counsel provided
ineffective assistance by telling the jury that he was court appointed. Because we overrule
all of Morton’s issues on appeal, we affirm.
I. BACKGROUND
At 10:35 a.m. on May 15, 2013, Jesus Benhumea, a custodian at the Western Inn in
Cleburne, Texas, knocked on the door of room 107 to see if he could clean the room. After
receiving no response from the room’s occupants, Benhumea informed the motel
manager, who instructed Benhumea to wait until 11:00 a.m. to clean the room. Per the
motel’s policy, the occupants of room 107 had also been called at 10:30 a.m. Once again,
motel staff did not receive a response.
About five or ten minutes prior to 11:00 a.m., Benhumea knocked on the door to
room 107. Again, he received no response and reported this to the motel manager. At
11:00 a.m., Benhumea and the motel manager entered room 107 using a passkey. Upon
entering, they saw Morton laying on the bed with what appeared to be a gun under his
right leg. Concerned, the motel manager recommended that Dayabhai “Barry” Patel, the
owner of the motel, report the situation to the Cleburne Police Department.
Upon arriving, police officers spoke with Barry and proceeded to room 107 to
verify the report. Officer Corey Hall of the Cleburne Police Department testified that he
entered the room after 11:00 a.m., and when he did, he saw Morton,
lying on the left side of the bed with his head on the pillow and feet towards
the end. . . . I also saw a handgun under his right leg. . . . And a sword in
the bed next to him which was—he was laying right there, and the sword
Morton v. State Page 2
was right in here. And then there was also a rifle laying on the bed right
there.
Officers tried to wake up Morton. When Morton finally awoke, Officer Hall, thinking
there was something medically wrong with Morton, called for CareFlite and the Cleburne
Fire Department to come assess the situation. Officer Hall recalled that Morton
“appeared to be more than just groggy” and was possibly intoxicated. While waiting for
medical assistance to arrive, Officer Hall observed a black, rectangular bag that was open
and unzipped on the table next to the bed. Within plain view, Officer Hall saw “[a]n
orange syringe, several small plastic baggies, and also a short, clear straw with what
appeared to be drug residue inside of it.” Based on his training and experience, Officer
Hall believed that the bag contained drug paraphernalia and therefore reached inside the
bag. Inside, Officer Hall found a digital scale and more small plastic baggies.
After Morton was cleared of any obvious medical issues, Officer Hall placed
Morton under arrest for possession of drug paraphernalia. Thereafter, Officer Hall
searched Morton’s person as a search incident to arrest and found a small plastic baggie
containing what appeared to be methamphetamine inside of Morton’s pants pocket. Lab
tests confirmed that the plastic baggie contained 4.41 grams of methamphetamine.
Morton was subsequently charged by indictment with unlawful possession of a
controlled substance in an amount greater than four grams but less than 200 grams. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). Included in the indictment were
references to Morton’s prior felony convictions for delivery of a controlled substance and
Morton v. State Page 3
escape. At the conclusion of the evidence, the jury found Morton guilty of the charged
offense, concluded that the enhancement paragraphs contained in the indictment were
“true,” and sentenced Morton to imprisonment for a term of sixty years in the
Institutional Division of the Texas Department of Criminal Justice. Later, Morton filed a
motion for new trial, which was overruled by operation of law. See TEX. R. APP. P. 21.8(a),
(c). This appeal followed.
II. THE JURY CHARGE
In his first issue, Morton contends that the trial court erred by not giving an
instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 38.23.
A. Applicable Law
A claim of jury-charge error is reviewed using the procedure set out in Almanza.
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985). The first step is to determine whether there is
error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if
we find error, we analyze that error for harm.” Id. (citing Middleton v. State, 125 S.W.3d
450, 453 (Tex. Crim. App. 2003)).
Article 38.23 of the Code of Criminal Procedure provides:
No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.
Morton v. State Page 4
In any case where the legal evidence raises an issue hereunder, the jury shall
be instructed that if it believes, or has reasonable doubt, that the evidence
was obtained in violation of the provisions of this Article, then and in such
event, the jury shall disregard any such evidence so obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a). In Madden, the Court of Criminal Appeals
stated that a defendant’s right to the submission of jury instructions under Article 38.23(a)
is limited to disputed issues of fact that are material to his claim of a constitutional or
statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d
504, 509-10 (Tex. Crim. App. 2007). Specifically, the Madden court mentioned the
following:
There are three requirements that a defendant must meet before he is
entitled to the submission of a jury instruction under Article 38.23(a):
(1) The evidence heard by the jury must raise an issue of fact;
(2) The evidence on that fact must be affirmatively contested; and
(3) That contested factual issue must be material to the lawfulness of the
challenged conduct in obtaining the evidence.
There must be a genuine dispute about a material fact. If there is no
disputed factual issue, the legality of the conduct is determined by the trial
judge alone, as a question of law. And if other facts, not in dispute, are
sufficient to support the lawfulness of the challenged conduct, then the
disputed fact issue is not submitted to the jury because it is not material to
the ultimate admissibility of the evidence. The disputed fact must be an
essential one in deciding the lawfulness of the challenged conduct.
Id. at 510-11.
B. Discussion
Morton v. State Page 5
On appeal, Morton argues that the record contains a fact issue as to whether or not
he was found in room 107 before checkout time. More specifically, Morton asserts that
the record contains more than a scintilla of evidence that the door may have been opened
when Benhumea first visited the room, which thereby created a fact issue necessitating
an article 38.23 instruction. However, based on our review of the record, this argument
is not supported by the testimony adduced at trial.
During direct examination, Benhumea testified that he first went to room 107 at
10:35 a.m. on the day in question and that no one responded to his knock at the door.
Benhumea subsequently notified the motel manager, who instructed Benhumea to wait
until 11:00—normal checkout time at the motel—to clean the room. Benhumea testified
that he returned to room 107 about five or ten minutes prior to 11:00 a.m. and, once again,
did not receive a response to his knock. Benhumea notified the motel manager. “At 11
when the time is up,” Benhumea and the motel manager opened the door to room 107
with a passkey.
On cross-examination, Benhumea denied opening the door when he first
approached room 107 at 10:35 a.m. Instead, Benhumea noted that he first knocked on the
door at 10:35 a.m. or 10:37 a.m. “and then the next time when I opened it was at 11 or
11:05 when the manager came over.” Benhumea’s testimony on cross-examination was
consistent with his testimony on direct examination, and nothing in his testimony raised
Morton v. State Page 6
a fact issue as to whether or not the door to room 107 was opened prior to checkout time
at 11:00 a.m.
Furthermore, Dayabhai “Barry” Patel, the owner of the motel, corroborated
Benhumea’s testimony. Barry testified that the check-out time at the motel is “11 o’clock
in the morning. It’s posted in the office.” Barry further clarified that:
Around 10:30 we call them in their room, find out if they are in the room or
not whether they answer their phone. It they do answer the phone, we let
them know it will be checkout time. Once we hear what their intentions
are—they say, yes, they are leaving. If by 11 o’clock they have not left, we
knock on the door and just remind them it is checkout time.
....
When they don’t pick up the phone or they don’t answer the door, then we
use a passkey to get in. Sometimes they have vacated the room and left the
key on the table. So if that’s the case, the housekeeper will go in and strip
the beds, do the laundry and stuff like that.
Because Morton did not answer the phone or respond to knocks on the door, Barry
recalled that, on the morning in question, the motel manager and Benhumea entered
room 107 at 11:00 a.m. Upon further questioning, Barry reiterated that the door to room
107 was opened after 11:00 a.m. on the day in question. Later, Barry testified that the
motel manager told him that she and Benhumea saw Morton sleeping on the bed in room
107 with a gun. Because the motel manager and Benhumea were unable to wake Morton,
and because Morton had weapons in the room, Barry called the Cleburne Police
Department for assistance.
Morton v. State Page 7
Based on the foregoing, we cannot say that the record demonstrates a disputed
fact issue raised by affirmative evidence as to whether the motel staff unlawfully entered
room 107 prior to 11:00 a.m. See Madden, 242 S.W.3d at 509-11; see also TEX. CODE CRIM.
PROC. ANN. art. 38.23(a). Consequently, we cannot conclude that the charge was
erroneous or that the trial court erred in failing to include an article 38.23 instruction in
the charge. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a); Barrios, 283 S.W.3d at 350; Ngo,
175 S.W.3d at 743; Almanza, 686 S.W.2d at 171; see also Madden, 242 S.W.3d at 509-11. We
overrule Morton’s first issue.
III. PROPORTIONALITY OF MORTON’S SENTENCE
In his second issue, Morton contends that the imposed sentence of sixty years’
imprisonment was excessive and grossly disproportionate to the offense. Morton did not
object to the sentence in the trial court.1
An appellant must make an objection in the trial court for us to review this issue
for error on appeal. See TEX. R. APP. P. 33.1(a); see also Makin v. State, No. 10-14-00044-CR,
2014 Tex. App. LEXIS 11944, at **1-2 (Tex. App.—Waco Oct. 30, 2014, no pet.) (mem. op.,
not designated for publication). Claims of cruel and unusual punishment can be waived
if they are not raised in the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.
1 When the trial court announced the jury’s verdict and asked Morton if there is “any reason why
sentence should not be pronounced upon you today,” Morton responded, “No, sir.” And though the record
reflects that he filed a motion for new trial, Morton did not complain about the sentence in his motion.
Instead, Morton argued that “the verdict in this case is contrary to the law and the evidence.”
Morton v. State Page 8
App. 1996) (concluding that failure to raise a challenge to a sentence under the Eighth
Amendment to the United States Constitution in the trial court leads to waiver on appeal);
see also Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d) (concluding that appellant waived his claim of cruel and unusual punishment by
failing to object in the trial court).
Because Morton did not raise any objection to the punishment in the trial court at
the time of sentencing or in a motion for new trial, we conclude that he has waived this
complaint.2 See TEX. R. APP. P. 33.1(a); Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at
151-52; see also Makin, 2014 Tex. App. LEXIS 11944, at *2. We overrule Morton’s second
issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
2 And even if he had preserved this complaint for review, Morton has not met the threshold
determination that his sentence is grossly disproportionate to the crime. Specifically, Morton was convicted
of unlawful possession of a controlled substance in an amount greater than four grams but less than 200
grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010).
Furthermore, in addition to finding Morton guilty of the charged offense, the jury found two felony
enhancement paragraphs contained in the indictment to be “true.” Therefore, the applicable punishment
range was twenty-five to ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. § 12.42(d)
(West Supp. 2014). Additionally, the State presented evidence of Morton’s lengthy criminal history that
spanned twenty years and involved eight felony convictions and numerous extraneous offenses, including
convictions for delivery of a controlled substance, burglary of a building, escape, credit card abuse,
unauthorized use of a vehicle, theft of more than $1,500 but less than $20,000, forgery, and forgery by
possession of a check with intent to pass. Moreover, at no point has Morton shown how his sentence, which
was clearly in the punishment range, is grossly disproportionate to sentences for similar crimes in the same
jurisdiction or sentences imposed for the commission of the same crime in other jurisdictions. See Ajisebutu
v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“Generally, a sentence within
the statutory range of punishment for an offense will not be held cruel or unusual under the Constitution
of either Texas or the United States.”); see also Solem v. Helm, 464 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L.
Ed. 2d 637 (1983) (stating that the proportionality of a sentence is evaluated by considering (1) the gravity
of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same
jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions).
Morton v. State Page 9
In his third issue, Morton complains that he received ineffective assistance of
counsel because his trial counsel informed the venirepersons during voir dire that he was
“appointed by the Court to represent Steven Morton.”
A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy
a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First,
appellant must show that counsel was so deficient as to deprive appellant of his Sixth
Amendment right to counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Second,
appellant must show that the deficient representation was prejudicial and resulted in an
unfair trial. Id. To satisfy the first prong, appellant must show that his counsel’s
representation was objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011). To satisfy the second prong, appellant must show that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable
probability exists if it is enough to undermine the adversarial process and thus the
outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett v. State, 65
S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks to the totality of the
representation and the particular circumstances of each case in evaluating the
effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly deferential and
Morton v. State Page 10
presumes that counsel’s actions fell within a wide range of reasonable professional
assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813.
The right to “reasonably effective assistance of counsel” does not guarantee
errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v.
State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). “Isolated instances in the record
reflecting errors of commission or omission do not cause counsel to become ineffective,
nor can ineffective assistance of counsel be established by isolating or separating out one
portion of the trial counsel’s performance for examination.” Ex parte Welborn, 875 S.W.2d
391, 393 (Tex. Crim. App. 1990). Appellant bears the burden of proving by a
preponderance of the evidence that counsel was ineffective, and an allegation of
ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813.
Trial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). Specifically, when the record is silent regarding the reasons for counsel’s
conduct, a finding that counsel was ineffective would require impermissible speculation
by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.]
1996, no pet.). Therefore, absent specific explanations for counsel’s decisions, a record on
direct appeal will rarely contain sufficient information to evaluate an ineffective
assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To warrant
reversal without affording counsel an opportunity to explain his actions, “the challenged
Morton v. State Page 11
conduct must be ‘so outrageous that no competent attorney would have engaged in it.’”
Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Though the record is silent as to the reasons
for most of trial counsel’s conduct, we will examine the record to determine if trial
counsel’s conduct was “‘so outrageous that no competent attorney would have engaged
in it.’” Id. (quoting Goodspeed, 187 S.W.3d at 392).
B. Discussion
At the beginning of his voir dire, Morton’s trial counsel made the following
introduction:
Ladies and gentlemen, my name is William Mason or Bill Mason. I am a
lawyer here in Cleburne, and I have been appointed by the Court to
represent Steven Morton. He is sitting behind me here. He’s accused of
possession of a controlled substance. You have kind of figured all of that
out at this point, I guess. One thing I want to say—and I do appreciate this
because sometimes jury panels kind of get a personality sometimes where
no one says anything. And Mr. Hill is right. Really, believe it or not, it’s
the people that don’t talk for some reason, it’s been my experience, that end
up serving on juries. So if you hold a particular opinion, you know, I want
you—I expect you to tell us your thoughts and your feelings. It’s okay to
disagree with what the law says. It’s okay to hold your own opinion about
something. Give us your ideas. Stand by your opinion. Don’t let anybody
talk you out of it. None of that is out of line. This is the time to do it really.
On appeal, Morton complains about trial counsel’s reference that he was appointed in
this case.3
3In support of his third issue, Morton does not rely on any Texas authority. Instead, he relies
heavily on a case from the Eleventh Circuit. See Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982). First, we
note that Goodwin is not binding on this Court. Furthermore, we find the case to be factually
Morton v. State Page 12
At the outset, we note that the record is silent as to trial counsel’s strategy. See
Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 833. Therefore, we must analyze trial
counsel’s conduct to determine if it was “‘so outrageous that no competent attorney
would have engaged in it.’” Roberts, 220 S.W.3d at 533 (quoting Goodspeed, 187 S.W.3d at
392).
In Doby v. State, the Court of Criminal Appeals addressed defense counsel’s
apparent attempt to garner sympathy for the defendant by mentioning to the jury that he
was appointed, rather than retained, counsel. See generally 455 S.W.2d 278 (Tex. Crim.
App. 1970). The trial court had instructed defense counsel and the defendant not to
distinguishable. In fact, in Goodwin, trial counsel’s mentioning of his appointed status was accompanied
by numerous other mishaps. Id. at 806. Indeed, the Goodwin Court mentioned the following:
The state interprets the references to appointed status as nothing more than a legitimate
trial tactic aimed at soliciting sympathy from the jury. This interpretation is difficult to
accept in light of the reason given by trial counsel. Goodwin, on the other hand, submits
that this type of attitude explains why counsel failed to challenge the composition of the
grand and petit juries, neglected to object to Witherspoon violations, and failed to object to
the use of leading questions by the prosecution. We tend to agree with Goodwin, but our
reasoning goes further. Admitted concerns over community ostracism do more than
inhibit a lawyer’s actions at trial where his performance is visible by fellow citizens. An
attitude such as this impairs the vitality of investigation, preparation, and representation
that all clients deserve, indigent or otherwise. Fears of negative public reaction to the
thought of representing an unpopular defendant surely hamper every facet of counsel’s
functions. Moreover, reminding a jury that the undertaking is not by choice, but in service
to the public, effectively stacks the odds against the accused.
Id.
In the instant case, Morton’s trial counsel merely mentioned that he was appointed to represent
Morton as a means of introducing himself to the jury. There is no indication in the record that Morton’s
trial counsel had an antagonistic or bad attitude toward Morton to the extent that Morton’s Sixth
Amendment right of counsel was impaired. And contrary to the facts in Goodwin, we find it telling that
Morton only complains about this isolated comment, rather than any other action taken by trial counsel.
Therefore, based on the foregoing, we are not persuaded to apply Goodwin to the facts in this case.
Morton v. State Page 13
mention that defense counsel was appointed. Id. at 281. Defense counsel objected,
arguing that the jury should know that the defendant is a pauper. Id. In holding that the
trial court did not err in its instruction, the Doby Court noted that the “fact that an accused
has appointed (or retained) counsel should make no difference in the trial of a criminal
case and should not be given any weight by a jury.” Id.
Unlike Doby, defense counsel in this case was able to present the complained-of
information to potentially garner sympathy for Morton—an arguably plausible defense
strategy. See id. And it is possible that such information could have influenced the jury
to avoid sentencing Morton at the top of the punishment range. Nevertheless, after
examining the totality of trial counsel’s representation of Morton, we cannot say that
Morton satisfied the first prong of Strickland, especially considering the lack of a record
explaining trial counsel’s strategy and the highly deferential standard that applies to
counsel’s actions. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett, 65 S.W.3d at
62-63; Thompson, 9 S.W.3d at 812; see also Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at
833.
And even assuming, arguendo, that Morton satisfied the first prong of Strickland,
we do not believe that the outcome of the hearing likely would have been different. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett, 65 S.W.3d at 62-63; Thompson, 9
S.W.3d at 812. This is especially true considering that: (1) the record contains ample
evidence demonstrating Morton’s guilt of the charged offense; and (2) the State presented
Morton v. State Page 14
evidence of Morton’s extensive criminal history, which included eight felony convictions
and numerous extraneous offenses. Thus, because we look to the totality of the
representation, we cannot say that Morton has satisfied his burden of proving by a
preponderance of the evidence that his trial counsel was ineffective. See Strickland, 466
U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 813; see also Gamble, 916 S.W.2d at 92.
We overrule Morton’s third issue.
V. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 6, 2015
Do not publish
[CRPM]
Morton v. State Page 15