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 C a us e No. 19CR1668

MEMORANDUM OPINION
A jury convicted appella n t Douglas Wayne Reed of dr iving 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)

. T h e ju ry assess ed punishment at thirty

- five years ’ i mp rison ment. In four issues, appellant argues that: (1) the trial court abused its discretion by denying his o ral motion for continuance; (2) the trial court abu sed its discretion b y granting his f i rst

tr i al at torn ey ’ s motion to with draw; (3) the trial court erred by ov erru ling his2

objection to the prosec utor ’ s improper jury arguments during the punishment phase; and (4) the sentence imposed was illegal due to a Samudio error. See
Samudio v. State
, 6 48 S .W

. 2d 31 2, 314 (Tex. Crim. App. 1983) . We affirm.

I. B ACKGROUND

On July 8, 2019, appellant was indicted for DWI 3 rd or more. Before the formal indictment, appellant filed a motion to sub stitute co unsel on June 18, 2019 ; appellant ha d c ounsel a ppointed to repres e nt hi m , 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 fol lowing reasons in support of his w ithdraw al :

2

. [ Appellan t ] has failed to c om pl y with t he 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 man ner that will see m believabl e and does not ma k e th e defense have zer o credibility. In a letter dated January 10, 2020, appellant informed the trial cour t that he
had released Nelson as his attorney in the c ase as they “ disagreed on the way [hi s]

case was being handled. ”

On Jan uary 17 , 2020, the tria l cour t held a hea ring on Nelson ’ s motion

. Nelson stated that he wished to withdraw for “ payment reasons, and , obviously, a conflict of personality reasons

. ” Additionally
, Nelson pr oclaimed
, “ I beli eve [appell ant ] is ok ay with th at

. He has told me t hat he i s pr e pared to hire other
Counsel. ” Appellant interje cted that he did not have the mon ey to hire additional
counsel

. The trial court granted the motion

. O n January 22, 202 0 the court appoint ed Pedro Rui z to represent appel lant.
On March 9 , 2020, the day tr i al wa s to begin, Ruiz told the court

— for the first3

ti me

— that he was not ready for trial

. Ruiz state d that appellant would need more
tim e to prepare bec a use a witness wa s unavaila b le ; appel lant w as served with the

re

- indictment on March 2, 2020, less than t en d a ys before tr ial ; and the State
abandoned some of the language in the indictment

. 1 Ruiz orally moved for a continuance
, which the trial c o urt denied.

At tria l, appe llant did not refute that he was intoxicated while driving.
Inst ead, he argued that he unkno wingly became intoxicated when another
individual tricked him into ingesting a spoon ful of marijuana oil

. Freda And erson and Tammy Ashwo rth

— appellant ’ s sisters

— both testifi e d that they were su rprised by appellant s ’ conviction

. Anderson opined that ap p ellan t must have been drugged
because she has not seen app ellant even hol ding a beer over the l ast seven years

. A shworth testified that she sees appellant every day and that appellant must have been drugge d because she has never known him to drink and dri v e

. Th e jury found appellant guilty and found the en hancement allega t ions to be

true

. Du ri ng t he punishm ent phase, in its closing argument, the prosecutor ’ s co

counsel asked the jurors to impose a life sentence because appellant had been
convicted of seven total DWIs in his life (including the cur r ent offense an d the t wo previous conv ictions th e State allege d in the enhancement paragraphs). During appellan t ’ s closing argument, Ruiz asserted that “ [t] he fact that he was drugged put him in a position to do so m ethin g he never would have othe rwise done beca u s e he
hadn ’ t done it in 14 yea rs

. ”

T he primary prosecu tor respo nded 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 indictm ent mer e l y altered one of the j u risdictiona l enhancement s. The origin al indictment alleged that appellant was charged with DWI on March 9, 1992 in cause number 598634

. T he re

- indictment alleged that appellant was c harged with DWI on March 12, 1992 in

caus e nu mber 91361 08.4

years. Just because I c annot bring you a judg ment from the pa s t 14 years, doesn ’ t

m ean he h asn ’ t been intoxicated and behind the wheel of a vehicle. It just means he
hasn ’ t been caught. ” The jury assessed punishment at thirt y

- five years ’ imprisonment in the Texas Department of C r imin al Just ice

— Institutiona l Divi sion

. App ellant filed a motion for new trial , and a hearing on the motion w as conducted on April 23, 20 20. Appellant argued that the trial court erred by allowing Nelson to withdra w without mak ing further inquiries

. A ppe l lant also

ar gued tha t Ruiz provided ineffective assistance of counsel by failing to file a

s worn motion for continuance. On April 24, 2020, t he trial court denied appellant ’ s motion for new trial. A ppel lant fi led a timely ap pe al

.

II. M OTION FOR C ON TINUANCE

I n his f irst 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 sufficien t cause shown; wh ic h c au se shall be fully set f orth in
the motion

. ” Tex. Code Crim. P ro c . Ann. art. 29.03 (e mphasis ad ded). All motions
for continuance must be swo rn to by a person having personal knowle dge. Id. art. 29.08

. “ The Court of Criminal Appeals h as construed the se p rovisions to mean that

a s w orn a nd written motion for continuance is necessary to preserve any complai nt associated with the de nial of the motion

. ” Woodman v. State , 491 S.W.3d 424, 428 (Tex. App.

— Houston [14th Dist.] 2016, pet. ref ’ d) (citing See Blac ks h e ar v. State, 385 S.W.3d 58 9 , 591 (Tex. Crim. App

. 2012) ).

Because appellant ’ s motion for continuance w as not written and not sw orn, appellant has not preserved anything for review. See Woodman , 491 S.W.3d at 428 . We overrule appellant ’ s first issue.5 III. A L LO W I NG C OUNSEL TO W ITHDRAW

In h is se cond issue, appellant argues that the trial court erred in allowing
Ne lson to withdr aw from the case.
A. S TANDARD OF R EVIEW & A PPLICABLE L AW We review the granting of a motion to withdraw for an abuse of discreti o n. See Ca d d ell v. Caddell , 597 S.W.3d 10, 1 3 (Tex. App.

— Houston [14th Dist.] 2020, no pet.) ; Harrison v. Harrison , 367 S.W.3d 8 22, 826 (Te x. App.

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

— Houston [14 th Dist.] 2011, pe t

. ref ’ d)

. Though it is a no n

- exha ustive list, we have previo usly consi dered the following fac tors in determining whether a t rial court abused its discretion in ruling on a counsel ’ s motion to withdraw:
(1) whether counsel offered good ca use to withdraw; ( 2 ) the necessity for the wit h drawa l; (3) a client ’ s Sixth Amendment right to counsel of choice ; (4) a client ’ s Sixth Amen dment rig ht to call witnesses in his own defense; (5) the disruption that may result to the trial proceedings

as a re sult of the atto rn e y ’ s withdrawal; and (6) the attor ney ’ s role, if any, in creating the need to withdraw.

Johnso n , 352 S.W.3d at 228

. An attorney ma y withdraw from representing a party “ only upon written
motion for good cause shown. ” Tex. R. Civ. P. 10 ; Ha rrison , 367 S.W. 3d a t 826

. Rule 10 does not de f

ine “ good cause, ” but the Texas Disciplinary Rules of
Professiona l conduct set out relevant factors t o consider in determining Rule 10
motions

. Under these rules, a lawyer may w ithdraw from representing a clie nt if : a client “ i n s ists upon pursuing an obje c tive that the lawyer considers repugnant or imprudent or with whi ch the lawyer has fundamental disagr eement ” ; “ the client
fails substantially to fulfill an obligation to the law yer regarding the lawyer ’ s6

servi ces ” ; or “ other go o d cause for withdrawal exis t s. ” T ex. Disciplinary Rules
Prof ’ l Conduct R. 1.15(b) (4), (5), ( 7 ).

B. A NALYSIS

In his mo tion to wit hdraw, Nelson allege d that appellant had failed to make
the agr eed pay ments for Nel son ’ s services . Nelson fu rther alleged th at h e and appellant had a fund a menta l disagreem ent concerning how to approach appellant ’ s defens e

. Nelson described a ppellant ’ s t heo ry that he became involuntarily inebriated by ingesting a spoonful of marijuana oil as “ cockamamie

. ”

Additio nally, a f

t er Nelson filed his motion to withdr a w, ap p ellant filed a
letter with the trial court indica ting that he had released Nelson as his attorney
because he “ disagreed on the way [ the] cas e was being handled. ” More impor t antly, at the hearin g on Nelson ’ s mo ti o n to withdraw, appellant indicated
th a t he h ad no objections to Nelson ’ s withdraw al

. T he t rial c ourt could reasonably
bel ieve that appellant was exercising his right to counsel of choice , and that appellant no longer wanted Nelson to represent hi m

.
L astly, we note that Nelson withd rew on Janu a ry 17 , 2020, and Ruiz was appointed to repres e nt appellant just a few days later
, on J anuary 22, 2020. Trial
did not be gin until March 9, 2020. Because Nelson ’ s withdrawal occurred over a

mont h before tri al b e g an , there was no serious disruption to the tr i al

. C f. Johnson
, 352 S.W.3d at 228 ( concludi ng that granting counsel ’ s motion to wit hdraw would
have cause d serious disruption because counsel moved to withdraw in the middle
of trial , after s everal witnesses h ad already testified )

. In summary, Nelson sub s tanti ated good cause for wanting to withdraw

. Furtherm ore, appellant indicated to the court that he had released Nelson as his attorney and presented no obj ections when Nelso n filed his motion to with draw.7

An d th ere was no serious disruption because Ruiz, the n ew attorne y, had over a
month to prepare for trial and never filed a motion for co nt inuance until the day of
trial. Given these circumstances, we cannot conclude that th e trial court abused its
discre tio n in granting Nelson ’ s motion to withdraw. See T ex. R. Ci v. P. 10 ; Johnson , 352 S.W.3d at 228

. We ov errule appellant ’ s secon d issue.

IV. I MPROPER J URY A R G U MENT

In his third issue, appellant a rgues that the trial court erred in ov erruling his objection to the State ’ s a llegedly improper jury argument during t h e punish ment phas e

. A. S TANDARD OF R EVIEW & A PPLICABLE L AW

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

argume nt for an abuse of discretion

. See Dav is v. State , 329 S.W.3d 798, 825 (T e x

. Crim. App. 2010)

. “ Proper jury argument g enerally falls wi thin one of the following four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answ er to argument of opposing counsel; an d (4) plea for
law enforcement

. ” Ni c h ol son v. State , 577 S.W.3d 559, 569

– 70 (T e x . App.

— H ouston [1 4th Dist.] 2019, pet. ref ’ d)

. Improper j ury argument s cons titute non

constitutional error; a non

- constitutional error “ th at does not affect substantial rights must be disregarded. ” Freeman v. St a t e , 340 S.W.3d 717, 728 (Tex. Crim. App. 2 0 1 1)

. B. A NALYSIS

In his closing argument to the jury, appellant suggested t hat he had not
dr i ven while drunk for fourteen ye ars. In its final jury argument, the pros e cutor clarified that appellant simp l y h a d not been arreste d for DWI in fourt een years

. T h is argum e nt was in response to appellant ’ s o wn argument s , and thus
, within the8

realm of approp riate jury ar gument. See Nicholson
, 577 S.W.3d at 569

. However, assuming with out deciding that the prosecut o r ’ s statement was improper, a

ppellant has not demo nst r ate d tha t the comment affected his substantial rights. See Freeman , 340 S.W.3d at 728

. “ In determining whether comments by the prosecutor constitute reversible e rror , the argument is viewed in light of the facts
adduced at trial and in the context of the e ntire 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. Ap p. 1989) )

. T he prosecutor did no t focus on the challenged statemen t in her closing argument ; instead, the prosec utor e mphasized

t hat appel lant ha d six previous DWIs. Simi larly
, the prosecutor ’ s co

- counsel , in her separate closing argument, focuse d on appellant ’ s h istory of DWIs. W e c oncl ude that the probability of prejudice f l ow ing from the alleged instance of improp er jury

a rgument doe s not outweigh the probability that the jury verdict was grounded on the proceedings and sufficient evidence

. See Brown , 2001 WL 224768, at *2

.
T herefore, we conclude that t he trial court did not err in overruling appellant ’ s objection

. See Palacio v. State , 580 S.W.3d 447, 453 (Tex. App.

— Housto n [14th Dis t.] 2019, pet. ref ’ d) ( conclu ding th at the State ’ s alleged l y improper jury a

rg uments were not harmful be cause “ [t] he preju dicial effect o f the
officer ’ s testimony was relatively low and the certainty of appellant ’ s conviction
absent the miscondu ct was rela tively high

. ” ). We o verrule appellan t ’ s third issue.9 V. S AMUD IO E RROR

In his f i na l issue, appellant argues that the sen ten c e imposed was ill egal due

to a Samudio error

. A ppellant asserts that the prior convictions th e State introduced
for enha nce ment purpos es did not e stablish that appellant had waived his right to jury trial . A cco r d in gly, he asserts that his s entence shou ld b e reduced to a cl ass

- B
misdemeanor

. A. S TANDARD OF R EVIEW & A PPLICABLE L AW

“ The State establishes a prima facie case of pro of of a pri or conviction by introducing copies of the judgment and sen tence in each cas e us ed for
enhancement and con necting them wit h the defendant. ” Johnson v. State , 725 S.W.2d 245, 247 (Tex. Crim. App. 19 87) ; see Blake v. State , 468 S.W.2d 400, 403 (Te x. Crim. Ap p. 1971) ( “ The State was entitled to rely upon the judgment s, valid
on their f ac e. If the recitations in t he judgments wer e 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 t o prove that a judgment introduced by th e St at e is void

. S ee Humphrey v. State , 68 1 S.W.2d 223, 224 (Te x. App.

— Houston [14th Dist.] 1984, no pet.) ; see a lso Morton v. State , 870 S.W.2d 177, 179 (Tex. App.

— Amarillo 1994, p et. ref ’ d) ( “ Once the judgment and
sentence were introduce d and appellant w a s i dentified with them, t he r egularity of the conviction was p resumed unless appellant affirmatively showed that he did not waive his right to trial by jury, thereby showing the c o nviction was void

. ” ).

B. A NALYSIS Appellant reli e s on Sam udio to argue tha t th e evi dence of his prior

co nvictio ns w e re inadmissible becau se they failed to show that he waived his right

to a jury trial

.10

In Sa m udio
, the defendant was found guilty of assau lt, a class

- A
misdemeanor. See Samudi o , 648 S.W.2d at 313

. The judgment did n o t s pecifically
reflec t that t he defendan t had waived his right to jury trial; rather, the judgmen t contained the recitation: “ No jury having been demanded. ” Id. The Samudio court observe d t hat “ the waiver of jury can never be presumed from a sil ent record, at lea s t o n direct appeal

. ” Id. at 314 ( emphasi s added ). Acco rdingly, in Sam udio , the
court concluded that th e State had failed to meet its constitutional burden of establishing that th e d efendant had waived jury trial. Se e id.
However, we find appellant ’ s relia n c e on Samudio to be u nwarr anted
b eca use we have previo usly distinguished Samudio from cases such as appellant ’ s

case

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

Sa mudio inv olved a silent record challenged on direct appeal i n which the cour t of cr i m in al appeals he ld the State failed to meet its consti tutional burden of establishing waiver of jury trial. Appellant ’ s case involves a colla teral attack on the prior Ohio convictio n, and as such the burden is on t he Appellant to pr ove that the Ohi o judgm e n t did not confo rm to the la ws of O hio. Id. (em phasis added ) (internal citation omitted) ; see Rogers v. State , 792 S.W.2d 841, 843 (Tex. App.

— Houston [1st Dist.] 1990, no p et.) ( “ T h e Samudio formulation, however, d oes not govern col lateral attacks on judg m e nt s of
convicti on, such as those p resented here. ” )

.
L ikewi se, appellant ’ s case invo lves a collat eral attack on his prior Texas

conv ictions. The State in troduc ed the prior judgment s and connected them to appellant. Appellant state d that he had no o bjectio n s t o the introdu ction of the prio r convictions, and ap pellant ev en admitted that he had been pre vi ously convicted of
DWI. The burden was on appellant to p rove that the j udgments w ere void

. Appellant failed to meet his burden becau se he provided no evidenc e to show that
he did not wai ve hi s right to jury trial

. See Humphrey , 681 S.W.2d at 224 ; see also11

Ex parte Ibarra , No. 01

- 16

- 00313

- CR, 2017 WL 1175557, at *4 (Tex. App.

— Houston [1 st Dist.] Mar. 30, 2017, no pet.) ( mem. op. , not de signated for publi cation ) ( “ A party fails to meet his burde n if he fails to brin g 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 four th issue

. VI. C ONC LU SIO N

W e a ffirm the trial c o ur t ’ s judgme nt.

/s/ Marg aret “ Meg ” Poissant Justice

P a nel co nsists of C hi ef Justice Christopher an d Justices Hassa n a nd Poissan t

. Do Not Publish

— Tex

. R. App. P. 4 7. 2( b)

.