IN THE

TENTH COURT OF APPEALS

No. 10-16-00219-CR

TOSHA LYNN HOUSTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Somervell County, Texas

Trial Court No. 249-00873

MEMORANDUM OPINION

In one issue, appellant, Tosha Lynn Houston, contends that the trial court erred in 

failing to make a sufficient inquiry into her desire to be represented by the counsel of her 

choice. We affirm.

I. BACKGROUND

Here, Houston was charged by indictment with: (1) unlawful possession of a 

controlled substance—methamphetamine—in an amount greater than two grams, but 
Houston v. State Page 2

less than 200 grams (“Count 1”); and (2) possession of a prohibited substance—

methamphetamine—in a correctional facility (“Count 2”). Also included in the 

indictment was an enhancement paragraph referencing Houston’s prior felony 

conviction for robbery. Houston entered an open plea of guilty to Count 1 and agreed to 

plead “true” to the enhancement paragraph in exchange for the State dropping Count 2. 

The trial court accepted Houston’s guilty plea as to Count 1 and plea of “true” to the 

enhancement paragraph, and this matter was tried to a jury on punishment. At the 

conclusion of the evidence, the jury assessed punishment at eighty years in the 

Institutional Division of the Texas Department of Criminal Justice. Houston filed 

motions for a new trial and in arrest of judgment—both of which were overruled by 

operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal followed. 

II. ANALYSIS

In her sole issue on appeal, Houston contends that the trial court denied her Sixth 

Amendment right to counsel of choice by not making a sufficient inquiry when Houston 

stated at a pre-trial hearing that she wished to be represented by another attorney. We 

disagree.

A. Facts

Attorney Kriste Burnett was originally appointed to represent Houston. However, 

on May 10, 2016, attorney Robert Kersey filed a motion for substitution of counsel in the 

trial court. In his motion, Kersey indicated that he had been “employed to represent 
Houston v. State Page 3

Tosha Lynn Houston.” The following day, the trial court granted Kersey’s motion, 

thereby substituting him as counsel for Houston and discharging Burnett. Numerous 

pre-trial hearings were conducted in this matter. At a pre-trial hearing conducted on June 

8, 2016, the trial court indicated that this matter was set for a jury trial on punishment for 

June 20, 2016. 

At another pre-trial hearing conducted on June 17, 2016, a mere three days before 

trial, Houston stated that she did not want a trial. Kersey explained to the court that 

Houston’s response was due to her surprise and disappointment in learning that the State 

had “withdrawn their offer in the case.” After speaking with Houston during a court 

recess, Kersey later announced ready for the June 20, 2016 trial date. The State then 

informed the trial court that Houston was going to enter an open plea of guilty and go to 

the jury on punishment. In response, Houston stated a second time that she did not want 

to go to trial. Kersey informed Houston of the following: “Each side has a right to a jury 

trial, okay? If you don’t want a jury trial, they can demand one, okay?” Kersey also told 

Houston that, by withdrawing the offer, the State intended to go to trial. Thereafter, 

Houston exclaimed, “I’m not going to trial, sir. I don’t want to. I don’t want to chance 

it.” As the trial court and attorneys discussed the necessity of Houston appearing in court 

in civilian clothes, Houston requested another attorney because she did not “trust—I 

don’t trust going to trial.” Houston was not allowed to replace Kersey as her attorney, 

and this matter was tried to the jury on punishment three days later.
Houston v. State Page 4

B. Applicable Law

A defendant’s right to have assistance of counsel during a criminal proceeding is 

guaranteed by both the United States and Texas Constitutions. U.S. CONST. amend. VI; 

TEX. CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp. 2016) 

(“A defendant in a criminal matter is entitled to be represented by counsel in an 

adversarial judicial proceeding.”). This right includes the defendant’s right to obtain that 

assistance from retained counsel of her choosing. United States v. Gonzalez-Lopez, 548 U.S. 

140, 144, 126 S. Ct. 2557, 2561, 165 L. Ed. 409 (2006); see Gonzalez v. State, 117 S.W.3d 831, 

836-37 (Tex. Crim. App. 2003); Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981) 

(stating that the right to assistance of counsel, “of course, includes freedom of choice in 

the selection of counsel by the accused”); see also Powell v. Alabama, 287 U.S. 45, 53, 53 S. 

Ct. 55, 77 L. Ed. 158 (1932) (“It is hardly necessary to say that the right to counsel being 

conceded, a defendant should be afforded a fair opportunity to secure counsel of his own 

choice.”). “Deprivation of the right is ‘complete’ when the defendant is erroneously 

prevented from being represented by the lawyer he wants, regardless of the quality of 

representation he received.” Gonzalez-Lopez, 548 U.S. at 148, 126 S. Ct. at 2563; see, e.g., 

Obando v. State, No. 14-07-00359-CR, 2008 Tex. App. LEXIS 3725, at *6 (Tex. App.—

Houston [14th Dist.] May 20, 2008, no pet.) (mem. op., not designation for publication).

A defendant’s right to obtain assistance from the counsel of her choosing, 

however, is not absolute. See Gonzalez, 117 S.W.3d at 837. “[W]hile there is a strong 
Houston v. State Page 5

presumption in favor of a defendant’s right to retain counsel of choice, this presumption 

may be overridden by other important considerations relating to the integrity of the 

judicial process and the fair and orderly administration of justice.” Id.; see Webb v. State, 

533 S.W.2d 780, 784 (Tex. Crim. App. 1976) (“Thus, an accused may not wait until the day 

of trial to demand different counsel or to request that counsel be dismissed so that he 

may retain other counsel.”). Among other things, “a trial court [has] wide latitude in 

balancing the right to counsel of choice against the needs of fairness and against the 

demands of its calendar.” Gonzalez-Lopez, 548 U.S. at 152, 126 S. Ct. at 2566-67 (citations 

omitted); see Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (listing factors 

to be weighed in balancing defendant’s right to counsel of choice against the trial court’s 

need for prompt and efficient administration of justice)1; see also Martinez v. State, No. 01-

12-00892-CR, 2014 Tex. App. LEXIS 5105, at **10-11 (Tex. App.—Houston [1st Dist.] May 

 

1

In determining whether a trial court abused its discretion in denying a motion for continuance to 

obtain new counsel, the Court of Criminal Appeals outlined the following factors, which are not exhaustive:

While not a complete listing some of the factors include the following: (1) the length of the 

delay requested, (2) whether other continuances were requested and whether they were 

denied or granted, (3) the length of time in which the accused’s counsel had to prepare for 

trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced 

convenience or inconvenience to the witnesses, opposing counsel, and the trial court, (6) 

whether the delay is for legitimate or contrived reasons, (7) whether the case was complex 

or simple, (8) whether a denial of the motion resulted in some identifiable harm to the 

defendant, [and] (9) the quality of legal representation actually provided. In addition to 

all of these factors, it must be remembered that the public interest in the fair and orderly 

administration of justice may be greater than a defendant’s right to have counsel of his 

choice.

Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (internal citations omitted). 
Houston v. State Page 6

13, 2014, no pet.) (mem. op., not designated for publication). A trial court violates a 

criminal defendant’s constitutional rights when this balancing reveals that the court 

unreasonably or arbitrarily interfered with a defendant’s right to counsel. Gonzalez, 117 

S.W.3d at 837.

C. Discussion

Based on our review of the record, we cannot say that the trial court abused its 

discretion in denying Houston’s request for a new attorney. Specifically, the record 

reflects that Houston retained Kersey as counsel and that she did not state any 

dissatisfaction with his representation when she made her request for new counsel. As 

noted by Kersey at the pre-trial hearing, Houston had just learned that: (1) the State had 

pulled its plea offer and intended to go to trial; and (2) the State had a right to a jury trial. 

And given this information, it likely became apparent that: (1) Houston might receive a 

far greater sentence from the jury than what the State had offered; and (2) it was unlikely 

that any deal could be made with the State. Moreover, it was only after these realizations 

that Houston made her request for new counsel, a mere three days before trial. 

Furthermore, in making her request, Houston noted that she did not want to go to trial 

and that she intended to employ new counsel in an attempt to avoid going to trial. 

Therefore, because of the foregoing facts, and because “a trial court [has] wide 

latitude in balancing the right to counsel of choice against the needs of fairness and 

against the demands of its calendar,” Gonzalez-Lopez, 548 U.S. at 152, 126 S. Ct. at 2566-67, 
Houston v. State Page 7

we cannot say that the trial court unreasonably or arbitrarily interfered with Houston’s 

right to counsel. See Gonzalez, 117 S.W.3d at 837; Ex parte Windham, 634 S.W.2d at 720; see 

also Martinez, 2014 Tex. App. LEXIS 5105, at **10-11. And though Houston complains that 

the trial court should have inquired further into her request for new counsel, it is our 

opinion that, based on the governing case law listed above and the conversation that 

transpired during the pre-trial hearing, no further inquiry was necessary. Houston’s 

request was designed to delay or avoid trial, and the trial court was within its discretion 

to decline to acquiesce to Houston’s request to maintain the integrity of the judicial 

process and the fair and orderly administration of justice. See Gonzalez, 117 S.W.3d at 837. 

Accordingly, we conclude that the trial court did not abuse its discretion in denying 

Houston’s eleventh-hour request for new counsel. See Gonzalez, 117 S.W.3d at 837; Ex 

parte Windham, 634 S.W.2d at 720; Webb, 533 S.W.2d at 784; see also Martinez, 2014 Tex. 

App. LEXIS 5105, at **10-11. We overrule her sole issue on appeal. 

III. CONCLUSION

We affirm the judgment of the trial court.

AL SCOGGINS

Justice
Houston v. State Page 8

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed May 31, 2017

Do not publish

[CRPM]