Affirmed and Memorandum Opinion filed July 10, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00330-CR

NO. 14-17-00331-CR

IVAN SMITH, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 262nd District Court 

Harris County, Texas 

Trial Court Cause Nos. 1501256, 1501257 

M E M O R A N D U M O P I N I O N 

Appellant Ivan Smith appeals his convictions for burglary of a habitation and 

aggravated assault on the grounds that the trial court reversibly erred by denying (1) 

his motion for mistrial and (2) his defense counsel’s request to withdraw from the 

case. Because appellant did not timely assert his motion for mistrial, we conclude 

he did not preserve this issue for our review. Additionally, appellant has not shown 
2

that the trial court abused its discretion in denying his counsel’s motion to withdraw. 

We therefore affirm the trial court’s judgment. 

Background 

A grand jury indicted appellant for the offenses of burglary of a habitation and 

aggravated assault. A jury convicted him of both offenses and sentenced him to ten 

years’ confinement for the burglary offense and thirty-eight years’ confinement for 

the aggravated assault offense. 

The facts are largely undisputed. Appellant and three co-defendants broke 

into the complainant’s home during the afternoon. The complainant and her 

boyfriend arrived at the house while the burglary was in progress. They saw an 

unknown vehicle, a white Lincoln, parked in the driveway, and the front door of the 

house appeared open and removed from its hinges. They parked their car behind the 

suspect vehicle, blocking it in the driveway. The complainant called 911 and 

informed the dispatcher that someone broke into her home and was still inside. She 

provided the license plate number of the white Lincoln parked in her driveway. 

Appellant “poked” his head out of the front door of the house and told the 

complainant and her boyfriend to move their car “out of the way.” Appellant and 

three others emerged from the house. Appellant again told the boyfriend to move 

his car, and the boyfriend complied. The four individuals entered the white Lincoln, 

and appellant occupied the driver’s seat. Appellant fired a gun toward the 

complainant’s car as the complainant’s boyfriend was moving it out of the way. 

Officers arrived at the scene shortly after the burglary; other officers 

proceeded to the address associated with the white Lincoln’s registration. When the 

officers arrived at this second location, they saw the suspect vehicle parked in front 

of a home. Shortly afterwards, officers arrested appellant and two of his co-
3

defendants. Appellant and one of his co-defendants, Jesse Jenkins, were tried 

together. 

Appellant’s identification was an issue at trial. We describe relevant events 

pertaining to the issue because those events form the basis for appellant’s complaints 

on appeal. Both the complainant and another eyewitness identified appellant at a 

“show-up” identification shortly after the offense occurred. The “show-up” 

identification sessions were videotaped, and the jury saw the videos. Additionally, 

the complainant and the other eyewitness positively identified appellant during trial 

as a person who committed the charged offenses. The State also presented a 

surveillance video from a neighboring address that supported the identification of 

appellant as a person who committed the charged offenses. 

Separately from the above identification evidence, the State also sought to 

support appellant’s identification by highlighting a unique distinguishing feature

relating to physical appearance: the suspect wore a gold grill in his mouth while 

committing the offense, and the State attempted to show the jury that appellant had 

just such a gold grill. Appellant, however, was no longer wearing a gold grill shortly 

after trial began. To develop testimony on the issue, the State called as a witness the 

court’s bailiff, Deputy Yolanda Sheppard. Sheppard testified that she observed

appellant with a gold grill in his mouth during his arraignment. Sheppard noticed at 

trial, however, that appellant no longer wore the gold grill. Sheppard asked appellant 

what happened to the grill and he told her he had “flushed it.” Appellant’s counsel

asserted no objections to Deputy Sheppard’s direct-examination testimony. 

Before beginning cross-examination, appellant’s counsel approached the 

bench to inform the court that her anticipated line of questioning could “put her as a 

witness” in the case. She did not explain how that was so, nor did counsel present 
4

an objection, request, or motion at that time.1 Appellant’s counsel then conducted 

cross-examination of Deputy Sheppard, attempting to impeach Sheppard. Sheppard 

said that she saw a gold grill in appellant’s mouth, and when asked why she did not 

take it from him, she explained that she did not know it was removable. Sheppard 

stated that appellant told her he “flushed” the grill after Sheppard spoke with defense 

counsel. After eliciting this testimony, appellant’s counsel approached the bench 

and the following exchange occurred outside the hearing of the jury:

[DEFENSE COUNSEL]: Okay, Your Honor, I’m the attorney in this 

case. She [Deputy Sheppard] just said “After I spoke with you.” I can’t 

be a witness and try the case at the same time, Your Honor. 

THE COURT: What are you asking the Court to do? 

[THE STATE]: She’s allowed to ask questions about what she said, 

just like as --

THE COURT: What are you asking?

[DEFENSE COUNSEL]: Well, because basically for consideration, I 

don’t want to run the risk of a State Bar grievance in this trial. That’s 

my only concern. 

THE COURT: I don’t understand what the question is. What are you 

asking? 

[DEFENSE COUNSEL]: Because basically I’m going to ask her --

basically I would like to ask what do you remember telling me.

THE COURT: Well, you may . . . if you choose to do so. 

Defense counsel again articulated no request, objection, or motion. She continued 

cross-examining Sheppard in an attempt to show Sheppard was biased against 

appellant. Sheppard stated that she did not remember making certain statements to 

defense counsel. Sheppard also stated that two other deputies were present when 

 

1 Defense counsel stated that she would “keep herself out of the equation.”
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appellant told her that he had flushed the grill down the toilet, but she acknowledged 

there was no audio or video recording of her speaking with appellant. 

The State asked Sheppard on re-direct if appellant told her why he “got rid of 

the grill.” Sheppard responded, “He said his attorney told him to get rid of it.” 

Appellant did not object to the question or the answer and asserted no motion. 

Appellant’s counsel then conducted a brief re-cross examination regarding 

appellant’s asserted conversation with counsel as just mentioned by Deputy 

Sheppard: 

[DEFENSE COUNSEL]: Deputy, is it Sheppard? Deputy Sheppard, 

did you ever come back and confirm with me whether or not that 

conversation took place?

[DEPUTY SHEPPARD]: I remember telling you that we needed the

grill, because we had already prepared a bag to place it in his property. 

I remember telling you that.

[DEFENSE COUNSEL]: Your Honor, I object. She’s nonresponsive 

again.

THE COURT: The objection is overruled. You may ask your next.

[DEFENSE COUNSEL]: Did you ever come back and tell me that, 

Hey, I was told X, Y, Z by your client, yes or no?

[DEPUTY SHEPPARD]: Yes, I did.

[DEFENSE COUNSEL]: And . . .

[DEFENSE COUNSEL]: No further questions, Your Honor.

At the conclusion of appellant’s re-cross examination, Sheppard was excused. The 

State then rested its case in chief. Appellant moved for a directed verdict, urging 

that the State had not proven its case. The trial court denied the motion for directed 

verdict and recessed for lunch. 
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After the lunch break, appellant’s counsel moved for a mistrial, claiming that 

Sheppard testified in violation of “the Rule”;

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that Sheppard’s testimony was 

“prejudicial against [her] client”; that counsel was made to be a witness and an 

attorney, making her ineffective; and that the State had accused her of tampering 

with evidence, which “tarnished [her] credibility with the jury.” Appellant’s counsel 

also confirmed on the record that she gave her client no instruction to discard his 

grill, and the State presented no argument or evidence otherwise. The trial court 

denied the motion for mistrial and sua sponte indicated that it would instruct the jury 

to disregard the “last question asked by the prosecutor and the response of the 

witness Deputy Sheppard.” After the jury returned, the trial court instructed the jury 

to disregard the State’s final question and Sheppard’s response and to not “consider 

the question nor the response for any purpose whatsoever in your deliberations in 

this case.”

Appellant rested his case with no further motions, objections, or requests. The 

jury returned a verdict of guilty as to both charged offenses, and trial recessed for 

the day.

Before beginning the punishment phase the next day, appellant’s counsel reurged the motion for mistrial. The court again denied the motion. Appellant’s 

counsel then moved to withdraw from the case, and the following colloquy occurred:

[DEFENSE COUNSEL]: Your Honor, at this point I’m going to move 

to withdraw from the case. The motion for a mistrial has been denied. 

The urging of the motion for a mistrial has been denied for the reasons 

that I’ve already stated. 

On April 11th there was communication between yourself, me, 

the prosecutors in your chambers, where we discussed the issue of my 

 

2

See Tex. R. Evid. 614.
7

client and the grill and I advised everyone in attendance that I could not 

violate attorney-client privilege. There’s no way that I’m going to -- 

THE COURT: And you also stated that you never made that statement 

to your client.

[DEFENSE COUNSEL]: Correct. And as a result of the State’s actions 

on yesterday by accusing me of evidence tampering, I’ve had to go and 

hire an attorney as a result of that. So at this point I’m not effective, 

Your Honor, and that’s why I’m asking to withdraw at this point. And 

defense counsel does have reason to believe that there was an ex parte

communication between the Court and the prosecutors after I left that 

day.

[THE STATE]: Your Honor, that is not true, and as an officer of the 

Court, I’m saying that that’s not true. The only communication that we 

had with the Court was with [defense counsel] present, period. That’s

the only time we had a conversation with the Court.

[DEFENSE COUNSEL]: Your Honor, at this point I cannot effectively 

represent my client. I’m a witness. There have been allegations made 

against me. I have had to hire an attorney as a result of all of this. I 

urge that my motion to withdraw from this case be granted.

THE COURT: The Court is going to take that under advisement.

Defense counsel filed a written motion to withdraw in which counsel stated that she 

sought to withdraw because she could not “effectively represent [appellant] because 

she was forced to continue as both a witness and attorney of record when the State 

accused [her] of evidence tampering in this case.” Defense counsel additionally 

incorporated into her written motion the grounds she stated previously on the record. 

The court denied counsel’s motion to withdraw, and the case proceeded to 

punishment. 

The trial court entered judgment according to the jury’s verdict. This appeal 

timely followed.
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Denial of Motion for Mistrial 

In his first issue, appellant contends the trial court reversibly erred by denying 

his motion for mistrial after the State allegedly accused his counsel of “evidence 

tampering” in open court. In sum, appellant contends that Deputy Sheppard’s 

testimony suggesting that appellant disposed of his grill because counsel instructed 

him to do so was intended by the State to prejudice the jury and was a “last ditch” 

effort to tie appellant to the alleged crimes. 

A mistrial is an appropriate remedy in “extreme circumstances” for a narrow 

class of highly prejudicial and incurable errors. Hawkins v. State, 135 S.W.3d 72, 

77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 

2000). A mistrial halts trial proceedings when error is so prejudicial that expenditure 

of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 

547, 567 (Tex. Crim. App. 1999). Whether an error requires a mistrial must be 

determined by the particular facts of the case. Id.

A trial court’s denial of a mistrial is reviewed for an abuse of discretion. Id. 

An appellate court views the evidence in the light most favorable to the trial court’s 

ruling, considering only those arguments before the court at the time of the ruling. 

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We must uphold the 

ruling if it was within the zone of reasonable disagreement. Id.

Finally, our rules of appellate procedure provide that, as a prerequisite to 

presenting a complaint for appellate review, the record must show that the appellant 

made the complaint by a timely and specific request, objection, or motion. Tex. R. 

App. P. 33.1(a). A motion for mistrial must be both timely and specific; such a 

motion is only timely if it is made as soon as the grounds for the motion become 

apparent. Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007); see also 
9

Veras v. State, 410 S.W.3d 354, 358 (Tex. App.—Houston [14th Dist.] 2013, no 

pet.). 

Here, appellant waited to assert his motion until after (1) Deputy Sheppard 

finished testifying and was excused, (2) the State rested its case, (3) appellant 

unsuccessfully moved for a directed verdict, and (4) trial reconvened after a lunch 

break. Under these circumstances, appellant did not move for mistrial as soon as the 

alleged grounds for his motion became apparent. See Griggs, 213 S.W.3d at 927; 

Veras, 410 S.W.3d at 358; see also Smith v. State, No. 01-15-00841-CR, 2017 WL 

3634247, at *13 (Tex. App.—Houston [1st Dist.] Aug. 24 2017, no pet.) (mem. op., 

not designated for publication) (appellant failed to preserve mistrial complaint for 

appellate review when he waited until after witness who made objectionable 

statements finished testifying and had been excused); Reid v. State, No. 10-14-

00107-CR, 2015 WL 6584361, at *3-4 (Tex. App.—Waco Oct. 29, 2015, pet. ref’d) 

(mem. op., not designated for publication) (same). 

Given appellant’s delay in moving for a mistrial, we conclude that his motion 

was untimely. Appellant therefore failed to preserve his complaint for our review, 

and we overrule his first issue. 

Denial of Motion to Withdraw 

In his second issue, appellant argues that the trial court reversibly erred by 

denying his defense counsel’s motion to withdraw from the case “after being forced 

to continue as both a litigant and a witness in the trial and after denial of the motion 

for mistrial.” 

We review a trial court’s decision on a motion to withdraw for an abuse of 

discretion. Hobbs v. State, 359 S.W.3d 919, 926 (Tex. App.—Houston [14th Dist.] 

2012, no pet.) (citing King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000));
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Johnson v. State, 352 S.W.3d 224, 227 (Tex. App.—Houston [14th Dist.] 2011, pet. 

ref’d) (citing King, 29 S.W.3d at 566; Brewer v. State, 649 S.W.2d 628, 631 (Tex. 

Crim. App. 1983)). A trial court abuses its discretion when it acts arbitrarily, 

unreasonably, or without reference to guiding rules or principles. Johnson, 352 

S.W.3d at 227. But so long as the trial court’s ruling falls within the zone of 

reasonable disagreement, the court does not abuse its discretion and we will uphold 

its ruling. Id. Finally again, as explained above, to preserve a complaint for 

appellate review, the record must show that the appellant made the complaint by a 

timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a). 

First, we note that counsel’s motion to withdraw was likely untimely, given 

the grounds on which it was based and the asserted prejudice expected to befall 

appellant from the motion’s denial. Deputy Sheppard testified on the last day of 

testimony in the guilt-innocence phase. But defense counsel did not urge her motion 

to withdraw until the next day, after the guilt-innocence phase concluded and after

the jury found appellant guilty of the charged offenses. Waiting until after evidence 

closes (and after conviction) to assert that counsel ought to be allowed to withdraw 

because she is a material fact witness is a motion that comes too late to secure 

effective relief even assuming the grounds are meritorious. Cf. Griggs, 213 S.W.3d 

at 927 (stating that delay in making motion for mistrial that “allow[ed] for the 

introduction of further objectionable testimony or comments and greater 

accumulation of harm” resulted in forfeiture on appeal of complaint about denial of 

mistrial); Veras, 410 S.W.3d at 358 (same). 

Even assuming a timely motion, appellant’s counsel’s grounds for withdrawal 

hinged on the premise that counsel became “ineffective as an attorney” from the 

point that Deputy Sheppard’s testimony “forced” her to be a witness. But supporting 

such a complaint requires appellant to have sought to present his trial counsel’s 
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testimony. See Johnson, 352 S.W.3d at 230 (because Johnson never sought to have 

his trial counsel testify as a witness, he failed to preserve his complaint that the trial 

court’s denial of his motion to withdraw denied him the right to call his counsel as a 

witness). Appellant’s counsel never sought to testify as a witness. Further, appellant 

does not contend that he was denied effective assistance of counsel. Cf. Ramirez v. 

State, No. 01-04-00196-CR, 2005 WL 2123791, at *5-6 (Tex. App.—Houston [1st 

Dist.] Aug. 31, 2005, pet. ref’d) (mem. op., not designated for publication). 

Appellant also relies on Rule 3.08 of the Texas Disciplinary Rules of 

Professional Conduct, which provides that a lawyer should not represent a client if 

the lawyer knows or believes he may be a witness “necessary to establish an essential 

fact” on behalf of the client. Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a), 

reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A. Appellant contends that 

his trial counsel’s testimony “could have been used to impeach Deputy Sheppard’s 

testimony.” Here again, appellant’s trial counsel did not inform the trial court that 

she sought to impeach Deputy Sheppard’s testimony. 

At any rate, we conclude that Rule 3.08 did not support withdrawal in this 

instance because the fact purportedly rendering counsel a witness is not “essential.” 

The State offered evidence of appellant’s gold grill solely to support his 

identification as the perpetrator of the charged offenses. But ample evidence from 

other sources established appellant’s identity, including both the complainant’s and 

her boyfriend’s eyewitness testimony and identification of appellant. Whether 

appellant’s trial counsel told him to dispose of the grill was simply not essential to 

the elements of the charged offenses or any defenses. Moreover, even if the fact was 

essential, it is not always the case that an attorney with knowledge of an essential 

fact must be allowed to withdraw. See Johnson, 352 S.W.3d at 230 (citing several 

cases in which courts have recognized that a lawyer can testify at trial without 
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withdrawing, including Ramon v. State, 159 S.W.3d 927, 931 (Tex. Crim. App. 

2004); Flores v. State, 155 S.W.3d 144 (Tex. Crim. App. 2004); Shannon v. State, 

104 Tex. Crim. App. 483, 284 S.W. 586 (1926); Mealer v. State, 32 Tex. Crim. App. 

102, 22 S.W. 142 (1893)). This argument does not support appellant’s claim that 

the trial court abused its discretion in denying his trial counsel’s motion to withdraw. 

Finally, to the extent the issue is preserved and the trial court erred, any harm 

was no more than slight. The trial court’s instruction to the jury to disregard Deputy 

Sheppard’s statement and to not consider it for any purpose ameliorated any 

perceived harm. 

Under these circumstances, appellant has not shown that the trial court acted 

unreasonably or arbitrarily in denying his motion to withdraw. We overrule his 

second issue.

Conclusion 

Having overruled appellant’s two issues, we affirm the trial court’s judgment. 

 

 /s/ Kevin Jewell

 Justice 

Panel consists of Justices Busby, Brown, and Jewell. 

Do Not Publish — Tex. R. App. P. 47.2(b).