Opinion
05-23-01087-CR
02-26-2025
KENDRA HUGHEY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F22-59668
Before Justices Smith, Jackson, and Lee
MEMORANDUM OPINION
MIKE LEE, JUSTICE
A jury found appellant Kendra Hughey guilty of aggravated assault with a deadly weapon and assessed punishment at thirty years' confinement. In two issues, Hughey contends the trial court violated her Sixth Amendment rights in failing to conduct a hearing on her motion to dismiss appointed counsel and abused its discretion in denying her motion for continuance. By cross-issue, the State argues the judgment incorrectly reflects that Hughey pleaded guilty to the offense and requests that we correct this mistake. We modify the trial court's judgment and affirm as modified.
Because the facts of this case are well-known to the parties, we will include only those necessary to resolve the issues raised by Hughey. See Tex. R. App. P. 47.1.
Hughey was indicted for committing aggravated assault with a deadly weapon, enhanced by an allegation she was previously convicted of felony assault family violence. Neil Pask was first appointed as counsel for Hughey; he filed a motion to withdraw three months after his appointment, which the trial court granted. Two days later, the court appointed Loren Green as counsel for Hughey.
On April 27, 2023, Hughey filed a pro se motion to dismiss Green. The form motion cited three reasons: "failure of counsel to file motions as requested by client"; "counsel shows no interest in the case at hand and only seeks plea agreement": and "failure of counsel to meet with defendant and/or acquaint himself with the facts of the case-at-bar." The motion did not request a hearing, and the record before us does not reflect any further action on the motion.
Hughey's case was eventually set for jury trial in September 2023 before being reset for October 16, 2023. On October 6, 2023, a pretrial hearing before a visiting judge was held, and Hughey brought up her motion to dismiss counsel. During a discussion of various pretrial matters, Hughey stated, "I've asked that I didn't want him to represent me anymore. . . . It's on record that I put in a motion. I keep putting in motions. I even had to go as far as putting in a state bar grievance because I'm not getting anywhere with my situation." Hughey later questioned the trial court as follows: "when I filed a motion to dismiss counsel, why couldn't that motion be heard in front of the judge? And say okay, if she filed the motion to dismiss you as the counsel, why is it that you are still on my case?" The court responded, "Well, the judge gets to decide whether or not your attorney is dismissed." Hughey said, "Exactly, and it's not being heard because he doesn't want to." Defense counsel informed the court that Hughey had in fact filed a motion to have him dismissed and said that the court had reviewed the motion and that it was "not heard, because my understanding is that, I am the second or possibly third lawyer on this case. She didn't feel that it would be something she needed to hear."
The day before trial commenced, the trial court conducted another pretrial hearing. Among other things, the parties discussed video exhibits the State planned to offer into evidence. One such exhibit was body-camera footage from the one of the arresting officers depicting Hughey's transport to the hospital following her arrest. Defense counsel objected to the video on grounds of relevance and rules 403 and 404(b). The trial court indicated an inclination to allow the video but reserved ruling until the exhibit was offered during trial.
The next day, shortly before voir dire, defense counsel again raised the question of the video, arguing that the video related to extraneous conduct the State had failed to include in a rule 404(b) notice. Defense counsel informed the court that he would have prepared an expert to explain the video had he known it was going to be offered. Defense counsel asked for a forty-five-day continuance "in the event that the court allows this videotape to come in," and alternatively, asked for the video to be excluded. Defense counsel also filed a motion for continuance that reiterated that the delay was sought so the defense could provide an expert to explain Hughey's conduct depicted in the video in question. The trial court again reserved ruling on the video's admissibility but denied the motion for continuance.
On the second day of trial, the trial court sustained Hughey's objections to the video, and it was never admitted in evidence. The jury ultimately found Hughey guilty of the charged offense and assessed punishment at thirty years' confinement. This appeal followed.
Discussion
Motion to dismiss counsel
In her first issue, Hughey argues the trial court violated her Sixth Amendment rights in failing to conduct a hearing on her motion to dismiss counsel. Although a defendant has the right to counsel, a "criminal defendant is not entitled to appointed counsel of choice." Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991). The trial court has discretion to determine whether counsel should be allowed to withdraw from a case. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). Personality conflicts and disagreements concerning trial strategy generally are not valid grounds for withdrawal. Id. A trial court has no duty to search for counsel agreeable to the defendant. Id. Further, "the right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice." Id.; see also Thornton v. State, No. 05-16-00565-CR, 2017 WL 1908629, at *3 (Tex. App.-Dallas May 9, 2017, pet. ref'd) (mem. op., not designated for publication).
The defendant has the burden to make the trial court aware of his dissatisfaction with counsel, to state his grounds for the dissatisfaction, and to substantiate his claim. Loring v. State, No. 05-18-00421-CR, 2019 WL 3282962, at *1 (Tex. App.-Dallas July 22, 2019, no pet.) (mem. op., not designated for publication). A trial court is not required to hold a hearing sua sponte on a motion to dismiss counsel; the defendant bears the burden of requesting a hearing and if the record does not show she did so, no error is preserved for our review. Id. at *2 (citing Hill v. State, 686 S.W.2d 184, 186 (Tex. Crim. App. 1985); Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim. App. [Panel Op.] 1982)); see also Rone v. State, No. 05-08-01570-CR, 2011 WL 2859937, at *1 (Tex. App.-Dallas July 20, 2011, no pet.) (mem. op., not designated for publication).
Here, because Hughey did not request a hearing on her motion to dismiss counsel or ask for an opportunity to present evidence, nothing is preserved for our review. To the extent that Hughey's questions at the pretrial hearing about the lack of a hearing could be construed as a request for a hearing, we conclude it was untimely. Hughey filed her motion in April 2023 and questioned the visiting judge about the lack of hearing nearly six months later, in October at a pretrial hearing, after the original trial setting had passed. See Robles v. State, 577 S.W.2d 699, 704 (Tex. Crim. App. [Panel Op.] 1979) (stating that an accused's right to select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice); Willink v. State, No. 05-92-01061-CR, 1997 WL 335042, at *4 (Tex. App.-Dallas June 19, 1997, no pet.) (not designated for publication). We overrule Hughey's first issue.
Motion for continuance
In her second issue, Hughey contends the trial court abused its discretion in denying her motion for continuance. The granting or denying of a motion for continuance is within the sound discretion of the trial court, and we will not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement. Seghelmeble v. State, 390 S.W.3d 576, 581 (Tex. App.-Dallas 2012, pet. ref'd). "[I]n order to show reversible error predicated on the denial of a pretrial motion for continuance, a defendant must demonstrate both that the trial court erred in denying the motion and that the lack of a continuance harmed him." Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
On the record before us, assuming without deciding that the trial court erred in denying Hughey's motion for continuance, we conclude Hughey has failed to demonstrate that the lack of continuance harmed her. Hughey's request for a continuance-both the oral request and the written motion filed with the court-was predicated entirely on the admission of the video of Hughey's transport to the hospital. But the trial court ultimately sustained Hughey's objection to the video and excluded it from evidence. Given this, we conclude Hughey cannot demonstrate she was harmed by the denial of her motion for continuance. See Gonzales, 304 S.W.3d at 843. We overrule Hughey's second issue.
State's cross-issue
Finally, the State asks us to modify the trial court's judgment to reflect that Hughey pleaded not guilty to the offense. This Court has the power to correct and reform the judgment of the court below to make the record speak the truth when we have the necessary information to do so. Tex.R.App.P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd).
The judgment in the record before us states that Hughey pleaded "guilty" to the charged offense. The record, however, reflects that Hughey pleaded not guilty. Accordingly, we will modify the judgment to correctly reflect Hughey's plea.
Conclusion
As modified, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
In the space for "Plea to Offense," the judgment is MODIFIED to state "Not Guilty."
As REFORMED, the judgment is AFFIRMED.
Judgment entered.