Affirmed and Memorandum Opinion filed March 22, 2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00311-CR

DOUGLAS WAYNE REED, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 19CR1668

MEMORANDUM OPINION

A jury convicted appellant Douglas Wayne Reed of driving while 

intoxicated (“DWI”), which was elevated to a third-degree felony offense by two 

prior DWI convictions. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2). The 

jury assessed punishment at thirty-five years’ imprisonment. In four issues, 

appellant argues that: (1) the trial court abused its discretion by denying his oral 

motion for continuance; (2) the trial court abused its discretion by granting his first 

trial attorney’s motion to withdraw; (3) the trial court erred by overruling his 
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objection to the prosecutor’s improper jury arguments during the punishment 

phase; and (4) the sentence imposed was illegal due to a Samudio error. See

Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983). We affirm.

I. BACKGROUND

On July 8, 2019, appellant was indicted for DWI 3rd or more. Before the 

formal indictment, appellant filed a motion to substitute counsel on June 18, 2019; 

appellant had counsel appointed to represent him, but sought to retain counsel—

Tad Nelson. The trial court granted the motion to substitute. On January 2, 2020, 

Nelson filed a motion to withdraw as counsel, alleging the following reasons in 

support of his withdrawal:

2. [Appellant] has failed to comply with the terms of the 

employment agreement with [Nelson]. [Appellant] has failed to 

make promised payments.

3. [Appellant’s] theory of the case will take extensive time and 

resources to prepare in a manner that will seem believable and 

does not make the defense have zero credibility.

In a letter dated January 10, 2020, appellant informed the trial court that he 

had released Nelson as his attorney in the case as they “disagreed on the way [his] 

case was being handled.”

On January 17, 2020, the trial court held a hearing on Nelson’s motion. 

Nelson stated that he wished to withdraw for “payment reasons, and, obviously, a 

conflict of personality reasons.” Additionally, Nelson proclaimed, “I believe 

[appellant] is okay with that. He has told me that he is prepared to hire other 

Counsel.” Appellant interjected that he did not have the money to hire additional

counsel. The trial court granted the motion.

On January 22, 2020 the court appointed Pedro Ruiz to represent appellant. 

On March 9, 2020, the day trial was to begin, Ruiz told the court—for the first 
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time—that he was not ready for trial. Ruiz stated that appellant would need more 

time to prepare because a witness was unavailable; appellant was served with the 

re-indictment on March 2, 2020, less than ten days before trial; and the State

abandoned some of the language in the indictment.

1 Ruiz orally moved for a

continuance, which the trial court denied. 

At trial, appellant did not refute that he was intoxicated while driving.

Instead, he argued that he unknowingly became intoxicated when another 

individual tricked him into ingesting a spoonful of marijuana oil. Freda Anderson 

and Tammy Ashworth—appellant’s sisters—both testified that they were surprised 

by appellants’ conviction. Anderson opined that appellant must have been drugged

because she has not seen appellant even holding a beer over the last seven years. 

Ashworth testified that she sees appellant every day and that appellant must have 

been drugged because she has never known him to drink and drive.

The jury found appellant guilty and found the enhancement allegations to be

true. During the punishment phase, in its closing argument, the prosecutor’s cocounsel asked the jurors to impose a life sentence because appellant had been 

convicted of seven total DWIs in his life (including the current offense and the two 

previous convictions the State alleged in the enhancement paragraphs). During 

appellant’s closing argument, Ruiz asserted that “[t]he fact that he was drugged put 

him in a position to do something he never would have otherwise done because he 

hadn’t done it in 14 years.”

The primary prosecutor responded to Ruiz’s argument during closing 

argument: “Now, defense brought up the point that he hasn’t been in trouble for 14

1 The new indictment merely altered one of the jurisdictional enhancements. The original 

indictment alleged that appellant was charged with DWI on March 9, 1992 in cause number 

598634. The re-indictment alleged that appellant was charged with DWI on March 12, 1992 in 

cause number 9136108.
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years. Just because I cannot bring you a judgment from the past 14 years, doesn’t 

mean he hasn’t been intoxicated and behind the wheel of a vehicle. It just means he 

hasn’t been caught.” The jury assessed punishment at thirty-five years’

imprisonment in the Texas Department of Criminal Justice—Institutional Division. 

Appellant filed a motion for new trial, and a hearing on the motion was 

conducted on April 23, 2020. Appellant argued that the trial court erred by 

allowing Nelson to withdraw without making further inquiries. Appellant also 

argued that Ruiz provided ineffective assistance of counsel by failing to file a 

sworn motion for continuance. On April 24, 2020, the trial court denied appellant’s 

motion for new trial. Appellant filed a timely appeal.

II. MOTION FOR CONTINUANCE

In his first issue, appellant argues that the trial court erred in denying Ruiz’s 

motion for continuance.

“A criminal action may be continued on the written motion of the State or of 

the defendant, upon sufficient cause shown; which cause shall be fully set forth in 

the motion.” Tex. Code Crim. Proc. Ann. art. 29.03 (emphasis added). All motions 

for continuance must be sworn to by a person having personal knowledge. Id. art. 

29.08. “The Court of Criminal Appeals has construed these provisions to mean that 

a sworn and written motion for continuance is necessary to preserve any complaint 

associated with the denial of the motion.” Woodman v. State, 491 S.W.3d 424, 428 

(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (citing See Blackshear v. 

State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012)).

Because appellant’s motion for continuance was not written and not sworn, 

appellant has not preserved anything for review. See Woodman, 491 S.W.3d at

428. We overrule appellant’s first issue.
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III. ALLOWING COUNSEL TO WITHDRAW

In his second issue, appellant argues that the trial court erred in allowing 

Nelson to withdraw from the case.

A. STANDARD OF REVIEW & APPLICABLE LAW

We review the granting of a motion to withdraw for an abuse of discretion.

See Caddell v. Caddell, 597 S.W.3d 10, 13 (Tex. App.—Houston [14th Dist.] 

2020, no pet.); Harrison v. Harrison, 367 S.W.3d 822, 826 (Tex. App.—Houston 

[14th Dist.] 2012, pet. denied); Johnson v. State, 352 S.W.3d 224, 227 (Tex.

App.—Houston [14th Dist.] 2011, pet. ref’d). Though it is a non-exhaustive list, 

we have previously considered the following factors in determining whether a trial 

court abused its discretion in ruling on a counsel’s motion to withdraw:

(1) whether counsel offered good cause to withdraw; (2) the necessity 

for the withdrawal; (3) a client’s Sixth Amendment right to counsel of 

choice; (4) a client’s Sixth Amendment right to call witnesses in his 

own defense; (5) the disruption that may result to the trial proceedings 

as a result of the attorney’s withdrawal; and (6) the attorney’s role, if 

any, in creating the need to withdraw.

Johnson, 352 S.W.3d at 228.

An attorney may withdraw from representing a party “only upon written

motion for good cause shown.” Tex. R. Civ. P. 10; Harrison, 367 S.W.3d at 826.

Rule 10 does not define “good cause,” but the Texas Disciplinary Rules of 

Professional conduct set out relevant factors to consider in determining Rule 10 

motions.

Under these rules, a lawyer may withdraw from representing a client if: a

client “insists upon pursuing an objective that the lawyer considers repugnant or

imprudent or with which the lawyer has fundamental disagreement”; “the client

fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s
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services”; or “other good cause for withdrawal exists.” Tex. Disciplinary Rules

Prof’l Conduct R. 1.15(b)(4), (5), (7).

B. ANALYSIS

In his motion to withdraw, Nelson alleged that appellant had failed to make

the agreed payments for Nelson’s services. Nelson further alleged that he and 

appellant had a fundamental disagreement concerning how to approach appellant’s 

defense. Nelson described appellant’s theory that he became involuntarily 

inebriated by ingesting a spoonful of marijuana oil as “cockamamie.”

Additionally, after Nelson filed his motion to withdraw, appellant filed a 

letter with the trial court indicating that he had released Nelson as his attorney 

because he “disagreed on the way [the] case was being handled.” More 

importantly, at the hearing on Nelson’s motion to withdraw, appellant indicated 

that he had no objections to Nelson’s withdrawal. The trial court could reasonably 

believe that appellant was exercising his right to counsel of choice, and that 

appellant no longer wanted Nelson to represent him.

Lastly, we note that Nelson withdrew on January 17, 2020, and Ruiz was 

appointed to represent appellant just a few days later, on January 22, 2020. Trial 

did not begin until March 9, 2020. Because Nelson’s withdrawal occurred over a 

month before trial began, there was no serious disruption to the trial. Cf. Johnson, 

352 S.W.3d at 228 (concluding that granting counsel’s motion to withdraw would 

have caused serious disruption because counsel moved to withdraw in the middle 

of trial, after several witnesses had already testified).

In summary, Nelson substantiated good cause for wanting to withdraw. 

Furthermore, appellant indicated to the court that he had released Nelson as his 

attorney and presented no objections when Nelson filed his motion to withdraw. 
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And there was no serious disruption because Ruiz, the new attorney, had over a 

month to prepare for trial and never filed a motion for continuance until the day of 

trial. Given these circumstances, we cannot conclude that the trial court abused its 

discretion in granting Nelson’s motion to withdraw. See Tex. R. Civ. P. 10;

Johnson, 352 S.W.3d at 228. We overrule appellant’s second issue.

IV. IMPROPER JURY ARGUMENT

In his third issue, appellant argues that the trial court erred in overruling his 

objection to the State’s allegedly improper jury argument during the punishment 

phase.

A. STANDARD OF REVIEW & APPLICABLE LAW

We review a trial court’s ruling on an objection asserting improper jury 

argument for an abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. 

Crim. App. 2010). “Proper jury argument generally falls within one of the 

following four areas: (1) summation of the evidence; (2) reasonable deduction 

from the evidence; (3) answer to argument of opposing counsel; and (4) plea for 

law enforcement.” Nicholson v. State, 577 S.W.3d 559, 569–70 (Tex. App.—

Houston [14th Dist.] 2019, pet. ref’d). Improper jury arguments constitute nonconstitutional error; a non-constitutional error “that does not affect substantial 

rights must be disregarded.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. 

App. 2011).

B. ANALYSIS

In his closing argument to the jury, appellant suggested that he had not 

driven while drunk for fourteen years. In its final jury argument, the prosecutor 

clarified that appellant simply had not been arrested for DWI in fourteen years. 

This argument was in response to appellant’s own arguments, and thus, within the 
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realm of appropriate jury argument. See Nicholson, 577 S.W.3d at 569.

However, assuming without deciding that the prosecutor’s statement was 

improper, appellant has not demonstrated that the comment affected his substantial 

rights. See Freeman, 340 S.W.3d at 728. “In determining whether comments by the 

prosecutor constitute reversible error, the argument is viewed in light of the facts 

adduced at trial and in the context of the entire argument.” Brown v. State, No. 14-

98-01232-CR, 2001 WL 224768, at *2 (Tex. App.—Houston [14th Dist.] Mar. 8, 

2001, pet. ref’d) (not designated for publication) (citing McGee v. State, 774 

S.W.2d 229, 239 (Tex. Crim. App. 1989)). The prosecutor did not focus on the 

challenged statement in her closing argument; instead, the prosecutor emphasized

that appellant had six previous DWIs. Similarly, the prosecutor’s co-counsel, in her

separate closing argument, focused on appellant’s history of DWIs. We conclude

that the probability of prejudice flowing from the alleged instance of improper jury 

argument does not outweigh the probability that the jury verdict was grounded on

the proceedings and sufficient evidence. See Brown, 2001 WL 224768, at *2.

Therefore, we conclude that the trial court did not err in overruling 

appellant’s objection. See Palacio v. State, 580 S.W.3d 447, 453 (Tex. App.—

Houston [14th Dist.] 2019, pet. ref’d) (concluding that the State’s allegedly 

improper jury arguments were not harmful because “[t]he prejudicial effect of the 

officer’s testimony was relatively low and the certainty of appellant’s conviction 

absent the misconduct was relatively high.”). We overrule appellant’s third issue.
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V. SAMUDIO ERROR

In his final issue, appellant argues that the sentence imposed was illegal due 

to a Samudio error. Appellant asserts that the prior convictions the State introduced 

for enhancement purposes did not establish that appellant had waived his right to

jury trial. Accordingly, he asserts that his sentence should be reduced to a class-B

misdemeanor.

A. STANDARD OF REVIEW & APPLICABLE LAW

“The State establishes a prima facie case of proof of a prior conviction by 

introducing copies of the judgment and sentence in each case used for 

enhancement and connecting them with the defendant.” Johnson v. State, 725 

S.W.2d 245, 247 (Tex. Crim. App. 1987); see Blake v. State, 468 S.W.2d 400, 403 

(Tex. Crim. App. 1971) (“The State was entitled to rely upon the judgments, valid 

on their face. If the recitations in the judgments were incorrect so as to render the 

convictions void and unusable for enhancement, it was incumbent upon [the 

defendant] to show the same.”). The burden is on the defendant to prove that a 

judgment introduced by the State is void. See Humphrey v. State, 681 S.W.2d 223, 

224 (Tex. App.—Houston [14th Dist.] 1984, no pet.); see also Morton v. State, 870 

S.W.2d 177, 179 (Tex. App.—Amarillo 1994, pet. ref’d) (“Once the judgment and 

sentence were introduced and appellant was identified with them, the regularity of

the conviction was presumed unless appellant affirmatively showed that he did not 

waive his right to trial by jury, thereby showing the conviction was void.”).

B. ANALYSIS

Appellant relies on Samudio to argue that the evidence of his prior 

convictions were inadmissible because they failed to show that he waived his right 

to a jury trial.
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In Samudio, the defendant was found guilty of assault, a class-A 

misdemeanor. See Samudio, 648 S.W.2d at 313. The judgment did not specifically 

reflect that the defendant had waived his right to jury trial; rather, the judgment 

contained the recitation: “No jury having been demanded.” Id. The Samudio court 

observed that “the waiver of jury can never be presumed from a silent record, at 

least on direct appeal.” Id. at 314 (emphasis added). Accordingly, in Samudio, the 

court concluded that the State had failed to meet its constitutional burden of 

establishing that the defendant had waived jury trial. See id.

However, we find appellant’s reliance on Samudio to be unwarranted 

because we have previously distinguished Samudio from cases such as appellant’s

case. Humphrey, 681 S.W.2d at 224. In Humphrey, we noted that:

Samudio involved a silent record challenged on direct appeal in which 

the court of criminal appeals held the State failed to meet its 

constitutional burden of establishing waiver of jury trial. Appellant’s 

case involves a collateral attack on the prior Ohio conviction, and as 

such the burden is on the Appellant to prove that the Ohio judgment

did not conform to the laws of Ohio.

Id. (emphasis added) (internal citation omitted); see Rogers v. State, 792 S.W.2d

841, 843 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (“The Samudio

formulation, however, does not govern collateral attacks on judgments of

conviction, such as those presented here.”).

Likewise, appellant’s case involves a collateral attack on his prior Texas 

convictions. The State introduced the prior judgments and connected them to

appellant. Appellant stated that he had no objections to the introduction of the prior 

convictions, and appellant even admitted that he had been previously convicted of 

DWI. The burden was on appellant to prove that the judgments were void. 

Appellant failed to meet his burden because he provided no evidence to show that 

he did not waive his right to jury trial. See Humphrey, 681 S.W.2d at 224; see also 
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Ex parte Ibarra, No. 01-16-00313-CR, 2017 WL 1175557, at *4 (Tex. App.—

Houston [1st Dist.] Mar. 30, 2017, no pet.) (mem. op., not designated for 

publication) (“A party fails to meet his burden if he fails to bring forward the entire 

record from the prior conviction or other evidence to show that he did not waive 

his right to a jury trial.”). We overrule appellant’s fourth issue.

VI. CONCLUSION

We affirm the trial court’s judgment.

/s/ Margaret “Meg” Poissant

Justice

Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.

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