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 
Morton v. State Page 2

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 3

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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 

 

3

In 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 13

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 14

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 15

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

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