Petition for Writ of Certiorari — Underwood v. Texas

04 861 DEC > 1 2004

ae oO ied 25

In The

Supreme Court of the Gnited States

,

v—

ELLIE BARTON UNDERWOOD, JR.,

Petitioner,

vs.

STATE OF TEXAS,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals

For The Eleventh Court Of Ap; eals

District Of Texas

PETITION FOR WRIT OF CERTIORARI

MARK STEVENS

310 S. St. Mary’s Street, Suite 1505

San Antonio, Texas 78205

Tel: (210) 226-1433 Fax: (210) 223-8708

Attorney for Petitioner Ellie Barton Underwood, Jr.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Does the Constitution require that a trial court have a

legitimate reason for denying a defendant the right to

choose the lawyer who will represent him at the punish-

ment phase of his trial?

ne

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. .................+. i

TABLE OF CORR IRIG SS cccsticnssisssascoksctssonsoteensansisennevnt ii

TABLE OF AU THRO REE Ege essssisnctsicsnctiemevemersesennennens iv

CITATIONS OF REPORTS OF OPINIONS EN-

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BASIS FOR SUPREME COURT JURISDICTION ...... 1

CONSTITUTIONAL PROVISIONS INVOLVED IN

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A. Facts Material To Consideration Of The ~

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B. How The Federal Questions Were Raised And

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ARGUMENT ....1:0:i0:ctssosssnnceccenseitesteiaeaaeneaeaan

A. There Is A Constitutional Presumption In

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B. A Legitimate Reason Has Always Been Re-

quired To Override The Presumptive Right To

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No Legitimate Reason Was Given Here............

D. Contrary To What The Court Of Appeals

Found, The Trial Court Did Deny Petitioner

His Right To Choose Counsel ...................00000008 10

E. Certiorari Should Be Granted Under Sup. Ct.

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TABLE OF CONTENTS -— Continued

Page

INDEX TO APPENDICES:

Appendix A:

Appendix B:

Opinion of the Eleventh Court of

Appeals District of Texas: Under-

wood v. State, No. 11-02-00254-CR

(Tex. App. — Eastland 2004, pet.

Order of the Texas Court of Crimi-

nal Appeals Refusing Petition For

Discretionary Review (October 6,

ITE Wintssceadslinigiaitnaesnaemmesaensamdinl App. 16

iv

TABLE OF AUTHORITIES

Page

CASES:

Adams v. United States ex rel. McCann, 317 U.S.

Be GE kaicincinpiiaihlgcticiancegeteniamniasinidtanalanstannnssbebeiaasaaheness 7

Faretta v. California, 422 U.S. 806 (1974).................... 7,12

McKaskle v. Wiggins, 465 U.S. 168 (1984).............. 8, 11, 12

Powell v. Alabama, 287 U.S. 45 (1931)....2.......ccccceeeeeceeeceees 7

Underwood v. State, No. 11-02-00254-CR (Tex. App.

=~ Bemmtiats BOG, 9b. TOE GC) ncccccccccecssccccnsescscecesssnnce 1, 6, 11

United States v. Hughey, 147 F.3d 423 (5th Cir.), |

cert. denied, S25 U.S. 1030 (196)...............ccessscscscsrseneeas 8

Wheat v. United States, 486 U.S. 153 (1988)............ 7,8, 12

CONSTITUTIONAL PROVISIONS:

SF ecg A Ci taeensncirinicenanccchatiantainincensenes 1,6, 11

EF Geng MEIER sescacicnesntatenssssnsdeadscsondsenns 2, 6, 11

RULES:

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BNI Fae Wie bin caninschers nnssasssdesinsaninanatiiabioniassasbiatins 12

1

CITATIONS OF REPORTS OF

OPINIONS ENTERED IN THE CASE

Underwood v. State, No. 11-02-00254-CR (Tex. App. —

Eastland 2004, pet. ref’d) (not designated for publication).

Appendix A, App. 1.

,

v

BASIS FOR SUPREME COURT JURISDICTION

The Court of Appeals for the Eleventh Court of Ap-

peals District of Texas entered its judgment on March 25,

2004. Appendix A-1. Petitioner Underwood seeks review of

that judgment on a writ of certiorari.

On July 1, 2004, petitioner timely filed a petition for

discretionary review in the Texas Court of Criminal

Appeals. On October 6, 2004, that court filed an order

refusing the petition for discretionary review. Appendix B,

App. 16. This petition for writ of certiorari is timely filed

under Rule 13.1 of this Court.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

4

v

CONSTITUTIONAL PROVISIONS

INVOLVED IN THE CASE

Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed; which district shall have been previously

ascertained by law, and to be informed of the nature and

2

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the assistance of

counsel for his defence.

Amendment XIV

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of

the laws.

¢

STATEMENT OF THE CASE

A. Facts Material To Consideration Of The Ques-

tions Presented

The indictment in this case charged that petitioner

committed several sexual offenses on a single day against

the same minor complainant.’ Petitioner retained Martin

Underwood as his lawyer in January, 2000, shortly after

his arrest. Randy Wilson was hired as local counsel later

that year. Both lawyers appeared for petitioner at the

* The offenses alleged were aggravated sexual assault, indecency

with a child, and compelling prostitution. [CR — 2-3]

3

guilt/innocence phase of his trial, with Mr. Wilson serving

as lead counsel.’

After the jury found petitioner guilty and before the

punishment phase commenced, Mr. Wilson filed a Motion

To Withdraw As Counsel. The motion asserted that peti-

tioner no longer desired that Mr. Wilson represent him;

instead, he wanted Martin Underwood alone as his law-

yer.

This motion was presented to the triai court outside

the presence of the jury, at which time Mr. Wilson advised

the court that co-counsel Underwood had been represent-

ing appellant Underwood for about two years, that they

had worked together closely in the preparation of the trial,

and that it had been planned that Martin Underwood

would bear the primary responsibility for the punishment

phase. Mr. Wilson also advised the court that his with-

drawal would not delay the trial in any way, because

lawyer Underwood was prepared to go forward immedi-

ately at that time. “They just don’t want me to assist in

any manner.” The motion was agreed to by the prosecutor.‘

Martin Underwood further advised the court that he

had been involved in the case even before Mr. Wilson was

recruited as co-counsel. He asserted that the petitioner’s

decision was a rational one, not made in acrimony, and he

tendered petitioner to the court for any questions.”

* [CR - 202}; (RR.III — 2; IV — 2; V - 2]; {[RR.III - 47, 39]

* (CR. - 169]

* (RR.VI - 7]

* [RR.VI - 7]

4

The court had no questions, but made the following

ruling:

What concerns me, Mr. Underwood, is that

there’s nothing in the record to show that you’ve

been involved in the case. I have no problem with

you presenting as lead counsel on the punish-

ment phase of the trial, but for our record’s sake

and for the jury’s appe: sance at this phase, I am

not going to allow Mr. Wilson to withdraw. He is

going to continue to sit in here during this trial. I

have no objections to you being the lead counsel

in the punishment phase of the trial, but for ap-

pearances and for the record, since you have not

taken an active role in it, I am going to deny his

Motion to Withdraw. But I will allow you to pre-

sent the case.°

The following exchange then occurred between peti-

tioner and the court:

THE DEFENDANT: Excuse me, Your Honor.

Do I not have a right to choose the counsel that I

want?

THE COURT: You’ve made that choice. We are

in mid trial, and he is going to continue to be in

here during this trial. He may not take an active

role, but he is going to continue to be here.’

The punishment phase continued with both lawyers

present,

although Martin Underwood examined the

witnesses and delivered the summation. The jury rejected

* [RR.VI — 7-8]

” [RR.VI - 8]

5

petitioner’s application for probation and sentenced him to ,

35 years in prison.*

After trial, petitioner filed a motion for new trial and

attached his affidavit, which stated that: he had hired

Martin Underwood to represent him in January, 2000, and

that Mr. Underwood had represented him continuously

since that date; he hired Randy Wilson in May, 2000, as

local counsel; both lawyers represented him in the

guilt/innocence phase of his trial, with Mr. Wilson serving

as lead counsel; after he was convicted, petitioner decided

he could do better without Randy Wilson, since, in his

judgment, the jury did not like him; because the trial court

refused to permit the withdrawal, petitioner was unable to

dissociate himself from Mr. Wilson, since he continued to

sit at counsel table; he believed that he would have fared

better had he been able to demonstrate to the jury that

Mr. Wilson was no longer representing him.” The motion

for new trial was denied after a brief hearing.”

B. How The Federal Questions Were Raised And

Decided Below

After the trial court denied Mr. Wilson’s motion to

withdraw as counsel, petitioner himself questioned

whether he would be allowed to choose his lawyer.” Later,

in his motion for new trial, petitioner complained that the

trial court’s actions had denied him his right to counsel

* (RR.VI — 214-215]

* (CR. — 202-203]

(RR.VII - 11)

* (RR.VI - 8]

6

guaranteed by the Sixth Amendment to the United States

Constitution.”

Petitioner argued in the court of appeals that the trial

court’s ruling denied him the right to choose his lawyer in

violation of the Sixth and Fourteenth Amendments te the

United States Constitution. The court of appeals dis-

agreed:

Here, appellant had the lawyer he wanted during

the punishment phase of his trial. The trial court

allowed Martin to act as lead counsel during the

punishment phase of the trial; that was the plan

from the beginning. The record reflects that Wil-

son did not participate in any of the punishment

proceedings in any manner except to sit at the

counsel table. The trial court expressed its con-

cerns over Martin’s lack of actual participation in

the guilt/innocence phase of the trial. The trial

court also expressed its concern “for the record”

as weil as “the jury's appearance at this phase.”

The trial court did not deny appellant his right to

retained counsel of his choice. The purpose of the

Sixth Amendment and of Article I, section 10 of

the Texas Constitution was met; appellant re-

ceived effective representation by an attorney of

his choice.”

Petitioner then sought discretionary review in the

Texas Court of Criminal Appeals where he asserted that

the Sixth Amendment broadly protected his right to choose

counsel, and that the trial court could override his right

* ICR. — 198]

* Underwood v. State, 2004 WL 584606 at *3.

Se ee ee ee ee

only for important considerations, none of which per-

tained. That court refused to grant review.“

7

ARGUMENT

A. There Is A Constitutional Presumption In Favor

Of Counsel Of Choice

This Court has long recognized the constitutional

right of a defendant in a criminal case to choose his own

lawyer at trial.” In Faretta v. California, this Court decided

that the State may not “constitutionally hale a person into

its criminal courts” and force or thrust a lawyer on him

that he does not want.” “An unwanted counsel ‘represents’

the defendant only through a tenuous and unacceptable

legal fiction. Unless the accused has acquiesced in such

representation, the defense presented is not the defense

guaranteed him by the Constitution, for, in a very real

sense, it is not his defense.” Because the defendant

suffers the consequences of a failed defense, the defendant,

not the State, has the right of choice.” In Wheat v. United

States, this Court wrote that the Sixth Amendment creates

a “presumption in favor of counsel of choice.”””

“ Appendix B, App. 16.

* Powell v. Alabama, 287 U.S. 45, 53 (1931) (“hardly necessary to

say that... a defendant should be afforded a fair opportunity to secure

counsel of his own choice”).

* 422 U.S. 806, 807, 817, 820, 833 (1974); see also Adams v. United

States ex rel. McCann, 317 U.S. 269, 279 (1942) (“the Constitution does

not force a lawyer upon a defendant:).

” Td. at 821.

* Id. at 834.

*® 486 U.S. 153, 160 (1988).

8 <

B. A Legitimate Reason Has Always Been Required

To Override The Presumptive Right To Choose

Counsel .

In Wheat, the Court recognized the presumption in

favor of chosen counsel, but also allowed that the pre-

sumption may be overridden depending on the circum-

stances of the case. The Court mentioned three limitations

on a defendant’s right to choose a lawyer: counsel must be

a member of the bar authorized to represent clients; the

lawyer must be willing to represent the defendant; and,

chosen counsel must not have a conflict.”

Later in McKaskle v. Wiggins, the Court rejected the

defendant’s complaints about the appointment of standby

counsel over his objection, where, among other things, the

appointment was necessary “to relieve the judge of the

need to explain and enforce basic rules of courtroom

protocol] or to assist the defendant in overcoming routine

obstacles that stand in the way of the defendant’s achieve-

ment of his own clearly indicated goals.” Other courts

have recognized that a defendant cannot insist on a

particular lawyer where that choice will delay trial.”

These cases make it clear that, although the right to

choose counsel is not absolute, it can only be overridden

for some legitimate reason. Absent a legitimate reason, the

*° Id. at 159

*! 465 U.S. 168, 184 (1984).

” E.g., United States v. Hughey, 147 F.3d 423, 428 (5th Cir.), cert.

denied, 525 U.S. 1030 (1998) (“Sixth Amendment right to counsel of

choice is limited, and protects only a paying defendant’s fair or reason-

able opportunity to obtain counsel of the defendant’s choice”).

9

trial court should not be able to override a defendant’s

right to choose his trial counsel.

C. No Legitimate Reason Was Given Here

In this case, none of the traditional concerns are

present. Martin Underwood was a licensed lawyer, he was

willing to represent petitioner, and he had no conflict of

interest, actual or potential. Nor was there any danger

that the trial would be delayed by Mr. Wilson’s with-

drawal, since Mr. Underwood made it clear he was pre-

pared to proceed immediately.

Instead, the trial court here expressed two concerns

when it refused petitioner’s request to dismiss Mr. Wilson.

In fact, neither of these concerns was sufficient to override

petitioner’s right to choose his lawyer.

First, the court worried that there was nothing in the

record showing Martin Underwood’s involvement in the

case. This is incorrect. In his motion to withdraw, Mr.

Wilson advised the court that attorney Underwood had

been representing petitioner for about two years, that they

had worked together closely in the preparation of the trial,

and that it had been planned that Martin Underwood

would bear the primary responsibility for the punishment

phase. Martin Underwood further advised the court that

he had been involved in the case even before Mr. Wilson

was recruited as co-counsel.”

* IRR. VI - 7-8]

* IRR. VI — 7]

10

Moreover, the record affirmatively reflects that Mr.

Underwood was present and involved in the trial from the

beginning. The first page of each volume of the statement

of facts from the trial reflects that both Randy Wilson and

Martin Underwood appeared “for the defendant.”” The

record makes it clear that Martin was also present during

jury selection.” Contrary to the court’s assertion, the

record clearly shows Martin Underwood’s involvement in

the case from the very beginning.

Second, the court expressed its concern “for the jury’s

appearance at this phase.”” It is not clear what the court

meant by this statement. In any event, it is not important,

because some unspecified concern over appearances would

not override a person’s constitutional right to choose his

lawyer. Absent a reai reason to believe that the choice to

dismiss Mr. Wilson would have some adverse impact on

the case, there was no justification for disallowing this

choice.

D. Contrary To What The Court Of Appeals

Found, The Trial Court Did Deny Petitioner

His Right To Choose Counsel

The court of appeals found that petitioner was not

denied “his right to retained counsel of his choice” because

the lawyer of his choice — Mr. Underwood — served as lead

counsel, and because Mr. “Wilson did not participate in

** IRR. III — 2; IV—2; V-2; VI-2]

° (RR. III — 39; 47]

” (RR. VI — 7-8]

11

any of the punishment proceedings in any manner except

to sit at the counsel table.””

Petitioner’s constitutional complaint, though, is not

that he was not allowed to choose that Martin Underwood

be his primary attorney. It is that he was not allowed to

choose — and to do so in a way that made clear to the jury

— that Mr. Wilson would no longer serve as his lawyer in

any way. The right to choose the lawyer who represents

you also includes the right to choose who does not repre-

sent you. Appearances are important to litigants. In the

Wiggins case, this Court recognized that appointed

standby counsel must not impair the perception before the

jury that a defendant is representing himself. “From the

jury’s perspective, the message conveyed by the defense

may depend as much on the messenger as on the message

itself.””

Here, petitioner believed that Mr. Wilson was a

damaging “messenger,” and he sought to disassociate

himself from Mr. Wilson. His choice was that Martin

Underwood, not Randy Wilson, represent him, and he had

the right to make that choice under the Sixth Amendment,

unless there was some legitimate reason that he not be

allowed to do so. When the trial court ordered that Mr.

Wilson remain in the courtroom, at counsel table, for the

duration of the punishment trial, it violated petitioner’s

right to choose his counsel under the Sixth and Fourteenth

Amendment to the United States Constitution.

* Underwood v. State, 2004 WL 584606 at *3.

*® McKaskle v. Wiggins, 465 U.S. at 179.

12

E. Certiorari Should Be Granted Under Sup. Ct.

R. 10(c)

The Founders undoubtedly “understood the inestima-

ble worth of free choice.” Several decisions from this

Court address the right of defendant in a criminal case to

choose his trial lawyer.” These cases recognize that, while

the right of choice is not absolute, it is important enough

that it may only be overridden for a legitimate reason. The

trial judge in petitioner’s case had no legitimate reason

when it denied him the right to choose who would repre-

sent him at the punishment phase of his trial. Certiorari

should be granted under Rule 10(c) because the state court

below has decided an important federal question in a way

that conflicts with this Court’s decisions in Wheat, Wig-

gins, and Faretta.

Respectfully submitted,

MARK STEVENS

Member, Supreme Court Bar

310 S. St. Mary’s Street

Tower Life Building, Suite 1505

San Antonio, Texas 78205

Tel. (210) 226-1433

Fax (210) 223-8708

Attorney for Petitioner

Counsel of Record

* Faretta v. California, 422 U.S. at 834.

*' Wheat v. United States, 486 U.S. 153 (1988); McKaskle v.

Wiggins, 465 U.S. 168 (1984); Faretta v. California, 422 U.S. 806 (1974).

App. 1

APPENDIX A

11th Court of Appeals

Eastland, Texas

Opinion

Ellie Barton Underwood, Jr.

Appellant

Vs. No. 11-02-00254-CR -— Appeal from Taylor County

State of Texas

Appellee

The jury convicted Ellie Barton Underwood, Jr. of

aggravated sexual assault of a child, indecency with a

child, and compelling prostitution. The jury then set his

punishment at 35 years confinement for aggravated sexual

assault, 10 years for indecency with a child, and 20 years

for compelling prostitution. We affirm the convictions.

In the second count of the multi-count indictment the

State charged appellant with the offense of indecency with

a child by exposure. In appellant’s third and fourth points

of error, he argues that the evidence is legally and factu-

ally insufficient to prove beyond a reasonable doubt that

he exposed himself with the intent to arouse and gratify

his own sexual desire.

To determine if the evidence is legally sufficient, we

must review all of the evidence in the light most favorable

to the verdict and determine whether any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307

(1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). To

determine if the evidence is factually sufficient, we must

review all of the evidence in a neutral light and determine

App. 2

whether the evidence supporting guilt is so weak as to

render the conviction clearly wrong and manifestly unjust

or whether the evidence supporting guilt, although ade-

quate when taken alone, is so greatly outweighed by the

overwhelming weight of contrary evidence as to render the

conviction clearly wrong and manifestly unjust. Vasquez v.

State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v.

State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958

S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d

126 (Tex.Cr.App.1996). We review the fact finder’s weigh-

ing of the evidence and cannot substitute our judgment for

that of the fact finder. Cain v. State, supra; Clewis v. State,

supra. Due deference must be given to the jury’s determina-

tion, particularly concerning the weight and credibility of the

evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000);

Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den’d,

522 U.S. 832 (1997). This court has the authority to disagree

with the fact finder’s determination “only when the record

clearly indicates such a step is necessary to arrest the

occurrence of manifest injustice,” Johnson v. State, supra

at 9.

K.D., a 13-year-old female, ran away from home. A

friend took her to Renee Dunn’s house. Dunn was an

adult. When K.D. and two other young girls who were also

at Dunn’s house were talking about making some money,

Dunn suggested that they could make some money by

“being with [appellant].” Dunn had known appellant for

six or seven years. She and appellant had sex four or five

times a month in the past, and appellant paid her $50 or

$60 each time. Dunn testified that she arranged a date

between appellant and K.D. about three or four days after

K.D. came to her house. Appellant, Dunn, and K.D. went

to an Fcono Lodge motel. Appellant rented the room. He

App. 3

and K.D. went in; Dunn stayed in the car. Appellant and

K.D. stayed in the room about 30 minutes. When they

came back to the car, appellant paid Dunn $60.

K.D. testified that, once inside the room, appellant

told her that he liked to give and receive oral sex. When

K.D. protested, appellant took a gun from his boot and

held it to her head. After appellant and K.D. removed their

clothes, they sat on the bed “for a minute and he was

telling me it wasn’t gross, and he went and washed him-

self off and said, Look, it’s clean.” As appellant held the

gun to K.D.’s head, he put his penis inside her mouth and

then inside her vagina, and they had sexual intercourse

until he was finished. Appellant gave K.D. $60, and they

went back to the car. They went either to McDonald’s or

Burger King to get something to eat. K.D.’s inother came

to Dunn’s house the next day and took K.D. home.

A former employee of Econo Lodge also testified

during the guilt/innocence phase of the trial. He testified

that he knew appellant. He remembered the day that

appellant checked in at the Econo Lodge. He also remem-

bered that appellant registered as “John Doe” and that he

had a young girl with him. Although appellant had been

coming to the Econo Lodge “off and on for about five years”

and staying for usually no more than “a half hour” the

employee never did get appellant’s correct name.

TEX. PENAL CODE ANN. § 21.11 (Vernon 2003)

provides in part:

(a) A person commits an offense if, with a

child younger than 17 years and not the person’s

spouse, whether the child is of the same or oppo-

site sex, the person:

App. 4

(2) with intent to amuse or gratify the

sexual desire of any person:

(A) exposes the person’s anus or

any part of the person’s genitals, know-

ing the child is present.

Appellant directs his complaint to the legal and

factual insufficiency of the evidence to show that he

exposed himself with the intent to arouse or gratify his

own sexual desire. The intent to arouse or gratify can be

inferred from the conduct or remarks of the actor and the

circumstances surrounding the conduct. McKenzie v. State,

617 S.W.2d 211, 216 (Tex.Cr.App.1981). Here, the proof

presents sufficient evidence from which a rational fact

finder could infer that appellant’s conduct, his comments,

and the surrounding circumstances showed an intent to

arouse or gratify his own sexual desire. See Cunningham

v. State, 726 S.W.2d 151, 154 (Tex.CrApp.1987). The

evidence shows that appellant went to the Econo Lodge to

engage in sexual activities with K.D. Appellant sat naked

while trying to convince K.D. to engage in oral sex with

him. He went into the bathroom and washed himself and

told K.D., “Look, it’s clean.” Appellant then went on to

have both oral sex and vaginal intercourse with K.D. It

was appropriate for the jury to deduce that appellant

exposed himself with the intent to arouse or gratify his

own sexual desire. Further, there is no contrary evidence

for us to weigh. We hold that the evidence is both legally

and factually sufficient to support the finding of guilt

under count two of the indictment. Appellant’s third and

fourth points are overruled.

In his first two points of error, appellant argues that

the trial court violated his rights under U.S. CONST.

amend. VI and TEX. CONST. art I, § 10 when it refused to

App. 5

allow him to “choose the lawyer whd would represent him

during the punishment phase” of the trial.

Appellant first retained his brother, Martin Under-

wood, an attorney, to represent him in this case. Later,

Randy Wilson, an attorney from Abilene, was hired to

assist in appellant’s defense. Wilson was lead counsel

during the guilt/innocence phase of the trial. Appellant

and his lawyers had decided that Martin would be lead

counsel during the punishment phase of the trial, if the

case went that far. After the jury found appellant guilty,

but before the punishment phase started, Wilson filed a

motion to withdraw in which he alleged that appellant no

longer wanted him to act as his lawyer. Appellant’s com-

plaint was grounded in his belief that the jury did not like

Wilson, and he thought that he could do better if he were

not associated with Wilson. The trial court denied the

motion, but allowed Martin to act as lead counsel during

the punishment phase of the trial. Wilson sat at the

counsel table during the punishment phase of the trial,

but did not participate.

Appellant’s argument does not concern the denial of

counsel of his choice. Rather, it concerns the trial court’s

refusal to release a retained attorney when another

retained attorney of appellant’s own choosing (who has

been representing him during the trial, although not as

lead counsel) in fact conducts that part of the trial for

which he was originally chosen.

Both the federal and state Constitutions guarantee

the right to effective assistance of counsel. McFarland uv.

State, 928 S.W.2d 482, 508 (Tex.Cr.App.1996), cert denied,

519 U.S. 1119 (1997). However, the purpose of the Sixth

Amendment is not to make certain that a defendant is

App. 6

afforded representation by the counsel he wants. Wheat v.

United States, 486 U.S. 153, 159 (1988). Nevertheless, if a

trial court unreasonably interferes with the right to choose

retained counsel, that denial violates the Sixth Amend-

ment. Kozacki v. Knize, 883 S.W.2d 760, 763 (Tex.App. —

Waco 1994, no pet’n). In McFarland, the trial court ap-

pointed additional counsel to represent the defendant even

though original counsel was retained. The defendant

raised the objection that such action interfered with his

right to choose his counsel. In McFarland the court held

that: “Where a trial court deems... that retained counsel

may need assistance, it is acceptable to sua sponte appoint

additional counsel, and does not violate a defendant’s right

to counsel of choice.” McFarland v. State, supra at 508.

The reasoning of McFarland is controlling in this

case. Here, appellant had the lawyer he wanted during the

punishment phase of his trial. The trial court allowed

Martin to act as lead counsel during the punishment

phase of the trial; that was the plan from the beginning.

The record reflects that Wilson did not participate in any

of the punishment proceedings in any manner except to sit

at the counsel table. The trial court expressed its concerns

over Martin’s lack of actual participation in the

guilt/innocence phase of the trial. The trial court also

expressed its concern “for the record” as well as “the jury's

appearance at this phase.” The trial court did not deny

appellant his right to retained counsel of his choice. The

purpose of the Sixth Amendment and of Article 1, section

10 of the Texas Constitution was met; appellant received

effective representation by an attorney of his choice. See

Wheat v. United States, supra. Appellant’s first and second

points are overruled.

App. 7

In the first count, the State charged appellant with

the offense of aggravated sexual assault by causing his

male sexual organ to penetrate K.D.’s female sexual organ;

causing his male sexual organ to penetrate K.D.’s mouth;

causing his male sexual organ to contact her female sexual

organ; and causing her mouth to contact his male sexual

organ. In the second count, the State alleged that appel-

lant committed the offense of indecency with a child by

exposing his genitals to K.D. The third count contained

the State’s charge that appellant committed the offense of

compelling prostitution. By its verdict, the jury found

appellant guilty of each count.

In his fifth point of error, appellant argues that the

double jeopardy provision of the Fifth Amendment to the

United States Constitution prohibits his being convicted of

aggravated sexual assault as charged in count one and of

indecency with a child by exposure as charged in count

two. He argues that indecency with a child by exposure is

a lesser included offense of aggravated sexual assault. To

punish him for both would subject him to multiple pun-

ishments for the same offense and would subject him to

double jeopardy. While appellant’s proposition may be true

in some situations, it is not universally so; and the issue

must be decided on a case-by-case basis. Gottlich v. State,

822 S.W.2d 734, 738 (Tex.App. — Fort Worth 1992, pet’n

ref’d).

The Fifth Amendment guarantee against double

jeopardy is designed to protect against a second prosecu-

tion for the same offense following conviction, a second

prosecution for the same offense following acquittal, and

multiple punishments for the same offense. Illinois v. Vitale,

447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569,

572 (Tex.Cr.App.1991). However, those who commit separate

App. 8

assaults against the same person may be prosecuted and

punished for each instance of criminal conduct. Vernon v.

State, 841 S.W.2d 407, 410 (Tex.Cr.App.1992). The question

is whether appellant committed one offense or two separate

offenses when he sexuallv assaulted K.D. and when he

exposed himself to her.

In Blockburger v. United States, 284 U.S. 299 (1932),

the Supreme Court set forth the test for determining

whether two offenses are the same:

The applicable rule is that where the same act or

transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to de-

termine whether there are two offenses or only

one, is whether each provision requires proof of a

fact which the other does not.

Blockburger v. United States, supra at 304.

However, sexual offenses, even though they fall under

the same statute, are not considered the same offense

under Blockburger if they do not involve the same conduct.

Prosecutions are barred by jeopardy only when there are

multiple offenses arising from “the same act or transac-

tion” in certain situations. Vick v. State, 991 S.W.2d 830,

833 (Tex.Cr.App.1999). In Vick, the court determined that

the legislature intended, in sexual offense cases, to punish

separate acts although the acts might be in close temporal

proximity. Vick v. State, supra. If the acts are separate,

then Blockburger is not implicated because they are not

the same act or transaction.

The defendant in Vick was tried and acquitted of the

offense of aggravated sexual assault. The State had

alleged that Vick had committed the offense by causing

the penetration of the female sexual organ of the victim by

App. 9

his sexual organ. After Vick was acquitted, the State

brought another indictment in which it alleged, among

other things, that Vick caused the female sexual organ of

the victim to contact his mouth. The trial court dismissed

the second indictment based upon double jeopardy

grounds. After the case was affirmed by the Amarillo

Court of Appeals, the Texas Court of Criminal Appeals

granted the State’s petition for discretionary review. The

Court held that Blockburger did not prohibit the second

indictment and that there was no transgression of double

jeopardy because the offenses did not involve the same

conduct. The State alleged in the second indictment that

Vick caused the victim’s sexual organ to contact his mouth.

The first indictment contained an allegation that Vick

caused the penetration of the victim’s sexual organ with

his sexual organ. The offenses were separate and distinct

acts even though they occurred during the same criminal

transaction.

Appellant relies upon Ochoa v. State, 982 S.W.2d 904

(Tex.Cr.App.1998), Patterson v. State, 96 S.W.3d 427

(Tex.App. — Austin 2002, States pet’n granted, appellant’:

pet’n ref’d), and Hutchins v. State, 992 S.W.2d 629

(Tex.App. — Austin 1999, pet’n ref’d, untimely filed).

In Ochoa, the defendant was charged with five counts

of aggravated sexual assault of a child occurring on differ-

ent dates. He was also charged, in the same indictment,

with five counts of indecency with a child by touching.

Each of the dates of the five aggravated sexual assaults

corresponded to the dates of each of the indecency of-

fenses. The jury convicted Ochoa of only one aggravated

sexual assault and one incident of indecency, both alleged

to have occurred on June 16, 1994. The victim testified

that Ochoa sexually assaulted her during the summer of

App. 10

1994. She did not testify about any specific dates. One

witness testified that the victim called her on June 16,

1994, and told her that Ochoa “put his thing in [her] butt.”

There was no testimony that Ochoa touched the victim

more than one time on June 16, 1994. The Court of Crimi-

nal Appeals held that the evidence indicated that Ochoa

committed only one offense on that date and that the trial

court should not have submitted the case to the jury in

such a manner that would allow them to convict Ochoa

twice for the same offense. Either the State should have

been required to elect upon which offense it would proceed

or the trial court should have submitted the indecency

allegation as a lesser included offense. Ochoa v. State,

supra.

In Hutchins, the State charged in one indictment,

among other things not here relevant, that Hutchins

penetrated the female sexual organ of the victim with his

penis, that he touched the victim’s genitals with the intent

to arouse and gratify his sexual desire, and that he ex-

posed his genitals to the victim with that same intent. All

of the allegations concerned the same date. The testimony

was that Hutchins first touched the victim’s sexual organ

with his fingers and then penetrated her sexual organ

with his penis. The Austin Court of Appeals held that it

was undisputed that Hutchins exposed himself to the

victim in the course of penetrating the victim’s female

sexual organ. The court further noted that Hutchins commit-

ted two violations in this regard: aggravated sexual assault

by penetrating the victim’s female sexual organ with his

penis and indecency of a child by exposure. Because the

violations arose from the same conduct, double jeopardy

principles prevented a conviction for each offense, and the

court set aside the conviction for indecency by exposure.

Oe US NDA AES ME INC ay 5 ANE IY

App. 11

However, the court upheld the conviction for indecency

with a child by touching the victim’s genitals with his

fingers. This touching by Hutchins with his fingers was

not the same conduct as, and was distinct from, Hutchins’s

penetration of the victim’s sexual organ with his penis. It

was not a violation of double jeopardy to convict Hutchins

of aggravated sexual assault by penetration and indecency

of a child by touching. The court stated that the outcome

would have been different if the only evidence of touching

had been a touching with Hutchins’s penis in the process

of penetration of the victim’s female sexual organ. Hut-

chins v. State, supra.

In Patterson, the indictment contained three counts

and five paragraphs. The allegations were that Patterson

penetrated the victim’s anus with his penis; that he caused

the victim’s anus to contact his penis; that he touched the

victim’s anus with the intent to arouse or gratify his

sexual desire; that he caused the victim to touch his

genitals with the intent to arouse or gratify his sexual

desire; and that he exposed his genitals in the victim’s

presence with the intent to arouse or gratify his sexual

desire. The evidence before the jury showed that appellant

twice penetrated the victim’s anus with his penis. The

court commented that the evidence was sufficient to

support a conviction for aggravated sexual assault by

penetration of the victim’s anus by Patterson’s penis and a

conviction for aggravated sexual assault by contacting the

victim’s anus with his penis. The acts were separate and

distinct and were not based upon the same conduct.

Therefore, separate punishments for each do not consti-

tute multiple punishments in violation of double jeopardy

provisions. However, the court further observed that the

only sexual contacts were the two acts of penetration and

App. 12

that those support the aggravated sexual assault convic-

' tions. Therefore, the convictions for indecency by contact

and indecency by exposure were based upon the same

conduct as the conduct involving the two aggravated

sexual assault convictions. Under the circumstances in

Patterson, the indecency by contact was the same conduct

giving rise to the two aggravated sexual assaults. Further,

the only time Patterson exposed his penis was when he

attempted to cause the victim to touch his penis and then

he penetrated her anus with his penis. The court held that

the exposure was conduct which was also included within

the aggravated sexual assault convictions. Patterson v.

State, supra. We note that on May 21, 2003, the Texas

Court of Criminal Appeals granted the State’s petition for

discretionary review in Patterson. :

The cases relied upon by appellant are at the same

time distinguishable and instructive. In this case, appel-

lant performed at least three distinct types of conduct: (1)

when he was sitting naked talking to K.D. and showing

her his clean penis; (2) when he penetrated K.D.’s mouth

with his penis; and (3) when he vaginally penetrated her

with his penis. The act of exposure was not merely inci-

dental to the two penetrations. Although in close temporal

proximity, the violations did not arise from the same

conduct, and the punishment for those separate instances

of conduct do not constitute multiple punishments for the

same offense. Double jeopardy principles are not violated.

See Ochoa v. State, supra; Hutchins v. State, supra. We

overrule appellant’s fifth point of error.

In his sixth point of error, appellant argues that,

during its punishment phase argument, the State argued

things to the jury that were not in the record. In its

argument, the State basically told the jury that appellant

App. 13

had been doing this very same thing for many years.

Appellant’s chosen attorney objected, and the trial court

sustained the objection. The trial court also instructed the

jury to disregard the argument. However, the trial court

denied appellant’s motion for mistrial which is what

appellant complains of on appeal.

Jury argument by the State must fall within one of

the following general categories in order to be permissible:

(1) summation of the evidence; (2) reasonable deduction

from the evidence; (3) answer to argument of opposing

counsel; or (4) plea for law enforcement. Felder v. State, 848

S.W.2d 85, 94-95 (Tex.Cr.App.1992), cert. den’d, 510 U.S. 829

(1993). If the defendant’s attorney invites the argument, then

the State is allowed to respond to the argument. Albiar v.

State, 739 S.W.2d 360, 362 (Tex.Cr.App.1987). The State

maintains that its argument was invited by appellant’s

attorney.

Appellant’s attorney made the following statement

during jury argument:

You know, you can draw on your own experi-

ences, and you should. Common sense is what

makes this system work. Do people somehow all

of a sudden at age 63, 62, change from a much

admired person who no one can think of any

criticism of to a sex maniac? Can that really

happen in your experience? Do you know people

like that, that all of a sudden at age 63 just went

crazy? Maybe you do. I don’t. But that is some-

thing to think about, isn’t it?

Maybe you could postulate, well, he’s been

doing this ever since he was 14 years old for the

last 40 years. That’s pretty unlikely, isn’t it?

What we've — what it looks like we’re saying here

App. 14

is that somehow a man who lived as close to a

perfect life as anybody could, all of a sudden be-

comes a sex maniac.

The States’s argument about which appellant com-

plains was made following appellant’s argument. The

State argued:

: His biggest problem is he wants to have sex

with girls and pay money for it ... He didn’t

change all of a sudden. He didn’t start at 63 and

become a sex maniac. This is a long progression.

He has done this over a course of many years.

The State’s argument was permissible as a response

to the argument made by appellant’s attorney. Further-

more, Jennifer Denise Johnson testified that she and her

mother, Tillie Johnson, had procured girls for appellant.

Another witness, Judy Sapp, testified that she had pro-

cured girls for appellant during the 15 years that she had

known him. The desk manager employed by Econo Lodge

testified that appellant had been there about 250 times

and that he usually brought a girl there with him.

Appellant testified that he did not go to the Econo

Lodge as often as the desk clerk said and that the times he

did go there was in connection with his volunteer counsel-

ing ministry that included tutoring and financial assis-

tance on occasion. His home and the homes of those he

counseled were normally too crowded and too noisy to be

conducive to the performance of his work. At times, the

counseling sessions would conclude with the participants

going out for a meal. He never went to the motel for sexual

purposes, only to engage in his ministry of helping others

with their problems. He had performed these counseling

services for Tillie Johnson and Renee Dunn, among others,

App. 15

The State’s argument was within the bounds of

permissible jury argument because it was invited by

appellant’s attorney’s argument and also because it was a

proper summation of the evidence. Appellant’s sixth point

of error is overruled.

The judgment of the trial court is affirmed.

/s/ (Megible]

JIM R. WRIGHT

JUSTICE

March 25, 2004

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and Wright, J., and McCall,

J.

App. 16

APPENDIX B

OFFICIAL NOTICE FROM COURT

OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION,

AUSTIN, TEXAS 78711

10/6/2004

COA#: 11-02-00254-CR

RE: Case No. PD-0684-04

STYLE: UNDERWOOD, ELLIE BARTON, JR.

On this day, the Appellant’s petition for discretionary

review has been refused.

Troy C. Bennett, Jr.

Mark Stevens

TOWER LIFE BUILDING

310 S. ST MARY’S

Suite 1505

San Antonio, TX 78205-3192