Heath v. State

Full title: CURTIS HEATH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 6, 2012

No. 05-10-01084-CR (Tex. App. Jun. 6, 2012)

Opinion

No. 05-10-01084-CR No. 05-10-01085-CR

06-06-2012

CURTIS HEATH, Appellant v. THE STATE OF TEXAS, Appellee

MARY MURPHY

Affirmed as Modified; Opinion Filed June 6, 2012.

On Appeal from the Criminal District Court No. 4

Dallas County, Texas

Trial Court Cause Nos. F09-53257-K & F09-53486-K

OPINION

Before Justices Moseley, Lang-Miers, and Murphy

Opinion By Justice Murphy

Curtis Heath appeals his two convictions for aggravated assault with a deadly weapon against a family member. In three issues, appellant contends the trial court erred in refusing to charge the jury on the issue of self-defense, denying his motion for mistrial after the prosecutor's improper jury argument, and denying his counsel's motion to withdraw. We affirm the trial court's judgment in cause number F09-53257-K. We modify the trial court's judgment in cause number F09-53486-K and affirm that judgment as modified. Background

Appellant was indicted in two cases for aggravated assault with a deadly weapon, a knife, involving family violence. See Tex. Penal Code Ann. § 22.02(a), (b)(1) (West 2011); Tex. Fam. Code Ann. §§ 71.003, 71.004(1) (West 2008). The complainant in cause number F09-53257-K was Shamora Rhymes, appellant's ex-girlfriend and the mother of his two sons. The complainant in cause number F09-53486-K was his two-month old son M.H. Each indictment also included two enhancement paragraphs alleging appellant had been previously convicted of aggravated assault with a deadly weapon. Appellant pleaded not guilty to the charges, and the case proceeded to a jury trial.

Shamora testified that the evening of March 30, 2009, appellant brought their older son C.H. home after taking him out to eat. When they arrived, Shamora opened the door to let them in the house and went back to her bedroom where she had been breast-feeding M.H. Appellant followed her into the bedroom and closed the door. Shamora testified that as she was sitting on the bed feeding M.H., she heard appellant say "I told you" and she saw "his hand going up." Appellant then started stabbing her with what she thought was a pen; appellant stabbed her three or four times before she realized he actually had a knife. Shamora described the knife as a "pocket knife with a brown handle." She had seen the knife with appellant before and testified he "always carr[ied] a knife, a pocket knife."

Shamora started screaming and was "telling him no and to stop." She also leaned back while holding the baby and started kicking. Shamora testified that once she leaned back, appellant cut her in the chest and "during that time the baby got stabbed." She put the baby down on the bed and fell off the bed onto the floor. Shamora testified that as she lay on the floor, appellant "stood over" her, "slit the back of [her] neck," and then "started stabbing" her in the back. Shamora said she was lying there numb and that she decided to "play like [she] was dead." She thought appellant was trying to kill her. Appellant then closed the door, left the room, and went to the room of S.R., Shamora's ten- year old daughter. After appellant left the room, Shamora got up from the floor and made it to the doorway of S.R.'s room. At that time, Shamora saw C.H. try to stab appellant with a knife C.H. had gotten from the kitchen. Appellant grabbed the knife from C.H. and threw it to the ground. C.H. retrieved another kitchen knife and tried to stab appellant a second time. Appellant also took that knife from C.H. and put it in his pocket.

Shamora testified she told appellant not to hurt her kids. Appellant responded by grabbing her and trying to pull her back to the bedroom. During that time, appellant told Shamora to give him his phone and keys, both of which Shamora explained had been missing days before. Shamora testified appellant was "stuck" on the idea that she had his phone and keys and that she took off her pants to show him she did not have them. Shamora also fell to the floor and asked appellant to take her to the hospital. Shamora testified that "that's when he stabbed [her] in [her] head" and then again above her ear. Shamora panicked and screamed because all she could see was blood; S.R. and C.H. were facing Shamora and were also screaming. Shamora testified S.R. and C.H. had a good view of everything that was going on.

After pacing the hallway, appellant told Shamora and the kids to "come on" because he was going to take Shamora to the hospital; he threatened to get his gun and shoot them if they did not get in the car. Shamora testified she did not want to get in appellant's car but she wanted to get outside because she planned to run away. When they got outside, S.R. gave M.H. to Shamora, who took off running. Shamora also yelled to S.R. and C.H. to run. Shamora testified that at the time she took off running, appellant was looking for his gun in the trunk of the car. Shamora ran to the next-door neighbor's house, got inside, and locked the door. As soon as she was in, appellant was at the door "kicking it real hard" and trying to get inside. Shamora did not realize that S.R. and C.H. were not with her until after she had closed the door and locked it. The neighbors called 911. Shamora testified M.H. was crying and "fully covered in blood." He had been stabbed twice on his right side under his arm. Shamora testified she was also "very bloody" and was "cut up real bad." She estimated she had been stabbed between twenty-seven and thirty times. She had injuries to her left arm, in which her tendons had been cut leaving her hand hanging; she said she had "never seen anything like that, and it was so much blood [she] thought [she] was going to die." She also had injuries to her chest, shoulder, on the back of and under her neck, all down her back, and on her head. She explained appellant used a lot of force; "he was jabbing the knife in [her] and pulling." She did not know whether appellant was injured while trying to stab her.

S.R. testified she saw appellant stab her mother and M.H. Specifically, she testified that after appellant went inside her mother's bedroom, she heard screaming, and as she was peeking in the bedroom door, she saw appellant stab M.H. once and her mother multiple times. S.R. also testified that at one point, appellant saw her and started coming toward her. S.R. thought appellant was going to stab her, and she ran into her room and got onto her bed. S.R. held up her comforter and sheets so that appellant would "just cut the sheets and not [her]." Appellant stabbed at her sheets about three times but did not cut her. S.R. testified appellant stopped trying to get her when her mother came into the hallway. S.R. said her mother was sitting up against the wall and was telling appellant not to hurt her kids. S.R. testified appellant went back to her mother and stabbed her in the head. S.R. said C.H. was standing next to appellant and telling him to stop.

S.R. testified that after appellant finished stabbing her mother, he told everyone to get in the car. S.R. explained she had no choice but to go because appellant told them "to come before he [got] the gun." S.R. thought appellant was going to kill them. When they got outside, S.R. saw appellant put M.H. on the ground. S.R. picked him up and gave him to her mother, who took off running. But instead of following her mother, S.R. ran in a different direction and ducked under a white car when she saw appellant point a gun at her. S.R. testified appellant then went to the neighbor's house and started banging on the door to get in. While appellant was trying to get in, her neighbor drove up. S.R. ran to his car, knocked on the window, and asked him for help. When appellant saw her knocking on the car window, appellant got in his car and drove off fast. After appellant left, S.R. and C.H. joined their mother inside the neighbor's house.

Shamora's next-door neighbors were Shera Chambers and her husband Patrick Fisher, and Shera's son. Shera testified she was awakened that night with "beating at the door." She described Shamora as frantic and asking for help. Shera testified Shamora and the baby were screaming and that S.R. was hysterical. S.R. and C.H. were asking her to "please don't let their mom die." The son testified that when he saw Shamora, she was "dripping blood" and looked like she had been "attacked by a wild animal or something."

Fisher testified that when he got home that night, one of the children came to his car window and asked him for help. Fisher said he saw appellant kicking at his door, trying to get in his house. When Fisher approached, appellant stopped and walked off. Fisher testified appellant was carrying a pistol. As appellant drove off, Fisher and the children went inside the house. Fisher testified the children were crying and scared, and when he got inside the house, Shera was calling 911. He said Shamora "thought she was fixin' to die."

Dallas police detectives, Javier Gonzalez and Gary Collins, investigated the injuries sustained by Shamora and M.H. Gonzalez took pictures of Shamora while she was in the hospital the day after the assault. Gonzalez testified Shamora had multiple injuries, including cuts to her throat and both breasts, as well as her left shoulder, right side of her back, and neck. He also testified Shamora had some "slicing cuts to one of her arms." He described the cuts as a "criss-cross cut" which indicates several slashes. Collins took pictures of M.H., which reflected two cuts to M.H.'s torso underneath his right arm.

Detectives Shelia Greene and Dineen Corden investigated the crime scene. Greene described Shamora's house as "extremely blood[y]." Greene testified "there was blood visible immediately upon entering the hallway." She also testified Shera and Fisher's house was "equally as bloody." Corden took photographs of the scene. She also collected two knives found inside Shamora's house. One knife was a kitchen knife with a blue handle that was found on the living room floor underneath an end table. The second knife had a black handle and was found on the floor in the hallway leading to the bedrooms. Corden testified the blade of the second knife had blood stains. Courtney Ferreira, a forensic biologist with the Dallas County Crime Lab, testified the blood found on the knife with the black handle matched appellant's DNA profile.

Greene testified she did not believe either knife found at the scene was the weapon that inflicted the injuries sustained by Shamora and M.H. Rather, Greene learned in her investigation that a pocket knife was used. She did not recover a pocket knife at the scene and testified that in her experience, "[p]eople that commit crimes take the weapons with them" and then "[g]et rid of them." Shamora testified that the knife with the black handle was one of the two knives C.H. had retrieved from the kitchen.

Appellant was arrested early in the morning on March 31 after a police chase. ¹ After his arrest, officers took appellant to the hospital; appellant's hand had been wrapped and was bleeding, and appellant's coveralls were covered in blood. Appellant had told one officer that he and his girlfriend "had just gotten into it." Jason Sapp, a registered nurse, treated appellant's injuries and testified appellant's injuries consisted of two cuts to his hand; one on his thumb and one to the outside of his hand. Sapp described the cut to appellant's thumb as a "very small" injury that was treated with a band-aid. Sapp described the other laceration as a clean, "fairly deep" cut but stated appellant was not bleeding excessively. Appellant received three stitches for that cut.

1 Appellant was indicted for evading arrest/detention with a motor vehicle arising out of the police chase. A jury convicted appellant, found he used his vehicle as a deadly weapon while evading arrest, and assessed punishment at thirty-years' imprisonment. Appellant's conviction in that case was affirmed on appeal. See Heath v. State, No. 05-09-01089-CR, 2010 WL 2854457, at *1 (Tex. App.-Dallas July 22, 2010, no pet.) (mem. op., not designated for publication).

Sapp testified the first thing appellant told him about his wounds was that they were "self- inflicted"; Sapp's notes reflected appellant reported "cutting self before getting pulled over." Sapp also testified that about an hour and a half later, appellant told Sapp he was cut after getting in an argument with his "wife"; appellant told him his "wife" cut him with a knife and he did not want to get her in trouble.

The jury also heard a recording of a telephone call appellant made to his mother from jail on the day of his arrest. The recording was admitted into evidence over appellant's objection. In that recording, appellant told his mother that Shamora cut him first. He stated, "I'm cut. I'm cut. I got the knife from her to cut her." He told his mother he "got stitches all in [his] hand" and that he had been to the emergency room. His mother replied, "I ain't never known Shamora to cut nobody."

At the charge conference, appellant objected to the absence of a jury instruction on the issues of self-defense and defense of necessity. As to self-defense, appellant claimed the evidence showed he was confronted with a knife, and in response, he used a pocket knife to defend himself. He pointed to the evidence showing he was cut on his hands and that he told two individuals, Sapp and his mother, that Shamora cut him. The trial court denied both requests.

The jury found appellant guilty as charged in both indictments, ² and the cases proceeded to punishment. The jury found the State's two enhancement allegations to be true and assessed punishment at life in prison in each case. The trial court ordered the life sentences to run concurrently. The trial court also ordered appellant's concurrent life sentences to begin after appellant served and discharged the thirty-year sentence assessed in his evading arrest conviction. Self-Defense Instruction

2 Appellant also had been charged with aggravated assault against S.R. The jury acquitted appellant in that case.
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In his first issue, appellant argues the trial court erred when it refused to charge the jury on the issue of self defense. Appellant claims there is evidence in the record showing he acted to protect himself against Shamora, who attacked him. Appellant contends the "jury clearly had some problems with the State's case because it acquitted [him] of assaulting [S.R.]." He maintains that in determining he assaulted Shamora and M.H., the jury was deprived of the opportunity to decide whether he assaulted them "while defending himself against an attack by Shamora."

When reviewing claims of jury-charge error, we first determine whether an error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and appellant objected to the error at trial, then we determine whether the error caused sufficient harm to require reversal. Id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988) (if error exists and was preserved, reversal required if error caused "some harm" to appellant from the error).

A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of what the trial court may think about the credibility of the defense. See Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). A trial court, however, may refuse an instruction on a defensive theory if the issue was not raised by the evidence. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007); Garza v. State, 829 S.W.2d 291, 294 (Tex. App.-Dallas 1992, pet. ref'd); see also Tex. Penal Code Ann. § 2.03(c) (West 2011) (defensive jury instruction not submitted to jury unless "evidence [was] admitted supporting the defense"). A defense is supported or raised by the evidence "if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true." Shaw, 243 S.W.3d at 657-58. The question of whether a defense is raised by the evidence is a sufficiency question, which we review as a question of law. Id. at 658.

The defendant bears the burden of showing that some evidence, viewed in the light most favorable to the defendant, exists to support each element of the defense. Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010); Shaw, 243 S.W.3d at 657-58; Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). In this case, appellant would be justified in using deadly force against Shamora (1) if he was justified in using force under section 9.31 of the penal code; and (2) when and to the degree he reasonably believed deadly force was immediately necessary to protect himself against Shamora's use or attempted use of unlawful deadly force. See Tex. Penal Code Ann. §§ 9.31(a) (Self-Defense), 9.32(a) (Deadly Force in Defense of Person) (West 2011). A "reasonable belief" is a belief that would be held by an ordinary and prudent person in the same circumstances as appellant. Id. § 1.07(a)(42). Thus, appellant must provide some evidence that would permit a jury to make a rational inference that when appellant assaulted Shamora and M.H. with a knife, Shamora was using or attempting to use unlawful deadly force against appellant and appellant reasonably believed the use of deadly force was immediately necessary for his protection. See id. § 9.32(a).

Appellant claims the evidence "clearly raised the issue" of self-defense and directs our attention to the following evidence: (1) the jailhouse recording of his telephone call to his mother in which he told her that Shamora attacked him and that he responded to defend himself; and (2) Sapp's testimony that appellant told him he received the cuts to his hand because his "wife" attacked him. Although appellant told two people that Shamora attacked him, there was no evidence in the record that appellant used deadly force only because he reasonably believed it was necessary to protect himself against Shamora's use of deadly force. In the recorded telephone call to his mother, appellant told her that Shamora cut him first and that he "got the knife from her to cut her." But there is nothing in the record to show that Shamora ever possessed a knife or other deadly weapon when she was in her bedroom with the baby. Nor is there anything to suggest that after appellant took the knife from her as he claims, she continued to come after him causing him to have to defend himself against her attack. Rather, the evidence shows Shamora was holding the baby when appellant first stabbed her, and after she put the baby down, she fell to the floor, was numb, and acted like she was dead.

Officers found a kitchen knife at the scene with appellant's blood on it. But this evidence, without more, would not support a rational jury finding that appellant's use of deadly force was necessary for his protection. The knife was found in the hallway, not Shamora's bedroom; both Shamora and S.R. testified appellant first stabbed Shamora in her bedroom. Shamora also testified that the particular knife was the knife C.H. had retrieved from the kitchen, and when C.H. tried to use it, appellant grabbed the knife from him and threw it the ground. No evidence shows that Shamora used that knife at any time during the assault.

Finally, although appellant received two cuts to his hand, one cut was "very small" and treated with a band-aid, and the other cut was not bleeding excessively and required just three stitches. Shamora's injuries on the other hand were extensive, requiring surgery and hospitalization. Thus, under these circumstances, and e ven viewing the evidence in the light most favorable to appellant, we conclude the evidence does not support a rational jury finding that appellant reasonably believed that the force he used was immediately necessary to protect himself against Shamora's use of force. Therefore, the trial court did not err in refusing to include a self-defense instruction in the jury charge. We overrule appellant's first issue.

Improper Jury Argument

In his second issue, appellant contends the trial court erred when it denied his motion for mistrial after the prosecutor's improper jury argument. We review a trial court's denial of a motion for mistrial for an abuse of discretion and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).

Proper jury argument generally falls within one of four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel's argument; and (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A prosecutor may not use closing arguments to present evidence that is outside the record, as these references are generally designed to arouse the passion and prejudice of the jury. Freeman, 340 S.W.3d at 728. When facts not supported by the record are interjected into argument, "such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper." Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). The remarks "must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial." Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

If the claimed error involves the denial of a request for mistrial at the guilt phase where constitutional rights are not implicated, we balance three factors: (1) the severity of the misconduct (that is, the prejudicial effect), (2) any curative measures, and (3) the certainty of conviction absent the misconduct. Archie, 221 S.W.3d at 700; Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is required only in extreme circumstances, where the prejudice is incurable. Hawkins, 135 S.W.3d at 77. "A mistrial is the trial court's remedy for improper conduct that is 'so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).

Appellant's complaint is based on the following portion of the prosecutor's closing argument, which was delivered during the guilt phase of the trial:

Then you didn't get to see little [C.H.] the one who tried to be the hero out of all of this. The one who ran to the kitchen to get two knives. And I submit to you that this knife as flimsy as it is you know did not inflict any injury on anyone. And this knife it has [appellant's] blood on it. But why does it have [appellant's] blood on it? Because this is one of the knives that [C.H.] went to grab from the kitchen that he took from him. And whether he swatted or grabbed it or whatever, that's how [appellant] got that injury. It wasn't inflicted by Shamora or inflicted by anyone else. It was inflicted through his own terror.
But [C.H.] will have to ask himself why wasn't I able to save my mom everyday.

Defense counsel immediately objected to these remarks as "pure speculation." The trial court sustained the objection but denied counsel's motion for mistrial. The trial court also instructed the jury to disregard the last argument of counsel.

Appellant claims these remarks constituted an attempt to impute "ongoing psychological effects" to C.H. He contends the remarks were "highly prejudicial" because C.H. did not testify, and therefore, the prosecutor introduced facts not in evidence. He also maintains that even if those facts had been in evidence, they were not relevant to appellant's guilt or innocence. Appellant asserts his conviction was "far from certain" absent the misconduct and that the jury's consideration of C.H.'s point of view could have led the jury to convict him for assaulting Shamora and M.H. We disagree.

We first observe the prejudicial impact of the remarks would have been low given the substantial evidence supporting appellant's guilt in both cases. Additionally, the prosecutor's remarks were a small part of an otherwise proper argument, and the record does not reflect a willful or calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Concerning the second factor, the trial court promptly sustained defense counsel's objection and instructed the jury to disregard the complained-of argument. An instruction to disregard an improper statement generally will cure any error committed. Hawkins, 135 S.W.3d at 85; Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). And we presume the jury followed that instruction. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Finally, looking to the certainty of the conviction absent the misconduct, the evidence presented against appellant was strong, and given the strength of the State's case, it is likely the jury would have convicted appellant regardless of the prosecutor's remarks. After applying the relevant factors, we conclude the trial court did not abuse its discretion by denying appellant's request for a mistrial. We overrule appellant's second issue.

Defense Counsel's Motion to Withdraw

In his third issue, appellant complains the trial court erred when it denied his counsel's motion to withdraw. We examine the trial court's ruling for an abuse of discretion. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000).

Counsel had represented appellant in two prior cases and was appointed to represent appellant in the instant cases. Counsel's appointment began around the time appellant was indicted, and counsel had been the only attorney handling these cases. The day after the jury was selected, but before the start of the trial, appellant's counsel filed a motion to withdraw as counsel. In the motion, counsel alleged "good cause" existed for his withdrawal because of an actual conflict rendering counsel unable to effectively represent appellant. The conflict concerned the fact that counsel's mother served as foreperson of the grand jury that indicted appellant in each case. Appellant discovered this fact the day before trial was to begin.

At a hearing held just before the jury was sworn, counsel told the court his mother had not talked to him or consulted with him on these cases while she was on the grand jury. But counsel had called his mother the night before and "[t]alked to her about the facts of the case a little bit." Counsel informed the court his mother expressed no opinion on the cases and that he did not plan on having any further discussions with her about the cases. Counsel discussed his concern with the court: [Counsel]: Judge, I'll just tell you that yesterday when I discovered that it did cause me a great deal of concern. I did disclose it to my client yesterday afternoon so the record would be clear and these are serious cases.

And I told him that my mom - I wouldn't go against my mom and her decision she made to indict him. So I said that may have put me in a conflict with him in representing him.

THE COURT: What do you mean by that?

[Counsel]: I just meant that I would never dispute my mom's opinion.

Counsel stated the fact of his mother's service as foreperson had not impacted his preparation for trial, but he admitted he became "flustered" when he found out. He could not say for sure whether this would "subconsciously" influence him in his representation of appellant.

The court then questioned counsel on his ability to represent appellant: THE COURT: So you're telling me there's a chance that you're going to do less than a hundred percent possible to represent him on this case? Is that what you're telling me?

[Counsel]: I will do my 100 percent best to represent him on this case that's for sure. I will for sure represent him.

THE COURT: Is the fact that your mother was the Grand Jury Foreman on this case is that going to impact your zealous representation of your client?

[Counsel]: No, Your Honor, it should not.

THE COURT: Will it? I know it shouldn't but will it?

[Counsel]: It will not.

Counsel added that because of the situation, appellant did not feel comfortable with his representation.

After confirming with counsel that he had adequately investigated and prepared the cases for trial, the court denied the motion. The court stated it was "not aware of any law" that calls for "automatic disqualification" because of the fact that counsel's mother served as grand jury foreman, and based on counsel's answers, the court determined there was no conflict of interest.

A defendant does not have the right to his own choice of appointed counsel. See Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977). Nor is a trial court required to search for counsel agreeable to the defendant. King, 29 S.W.3d at 566. There are certain circumstances, however, in which a defendant may, upon a proper showing, be entitled to a change of counsel. See Garner v. State, 864 S.W.2d 92, 98 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). For example, a defendant is entitled to new counsel upon a proper showing of appointed counsel's actual conflict of interest. See id. at 98-99; Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (recognizing conflict of interest may warrant court's exercise of discretion to appoint substitute counsel). An actual conflict of interest exists if counsel is required to make a choice between advancing his client's interests in a fair trial or advancing other interests to the detriment of his client's interest. Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). The defendant bears the burden of proving he is entitled to a change of counsel. See Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982) (citing Webb v. State, 533 S.W.2d 780, 784 n.3 (Tex. Crim. App. 1976)).

The record before us reflects that counsel did not find out about his mother's service as grand jury foreperson until after the jury was selected. And by the time he filed the motion to withdraw, counsel had worked on the cases for over a year, devoting a great deal of time and effort in the preparation of appellant's defense. Specifically, counsel had prepared the cases with a crime scene investigator, reviewed witness testimony, police reports, medical records, and other documents and evidence from the State, secured the necessary subpoenas for trial, and had discussed the evidence and trial strategy with appellant. Given the amount of work counsel had already invested in the cases, his withdrawal could have necessitated a delay of the trial.

Additionally, the record does not suggest counsel was faced with a choice between advancing someone else's interests to the detriment of appellant. See Monreal, 947 S.W.2d at 564. Even though counsel expressed his concern about the situation and acknowledged he had been "flustered" by the fact, counsel admitted it had not impacted his trial preparation up to that point and that he would not let it impact his representation going forward. Notably, after the last witness testified, the trial court followed-up on the issue and asked counsel whether the "situation about [his] mother" affected his ability to give appellant a "vigorous defense." Counsel replied it had not and that he had not "even thought about it." Counsel also stated that he had "done everything that [he] could for [his] client." Thus, on this record, appellant has not shown he was entitled to a change of counsel due to an actual conflict of interest. We therefore conclude the trial court did not abuse its discretion in denying the motion to withdraw. We overrule appellant's third issue. Modification of the Judgment

Although neither the State nor appellant raise this issue, we observe that the written judgment for cause number F09-53486-K contains a clerical error. The judgment incorrectly recites the statute for the offense is section 22.02 of the "Utilities Code" rather than the penal code. Under rule of appellate procedure 43.2, we have the authority to correct a trial court's judgment and affirm it as modified. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). Such authority is not dependant upon the request of any party, nor does it turn on the question of whether a party has objected in the trial court. Asberry, 813 S.W.2d at 529-30. Accordingly, we modify the judgment in cause number F09-53486-K to show the statute for the offense is section 22.02 of the Texas Penal Code.

Conclusion

We affirm the trial court's judgment in cause number F09-53257-K. We also affirm the trial court's judgment as modified in cause number F09-53486-K.

MARY MURPHY

JUSTICE

Do Not Publish

Tex. R. App. P. 47

101084F.U05

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CURTIS HEATH, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 05-10-01084-CR

Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F09- 53257-K).

Opinion delivered by Justice Murphy, Justices Moseley and Lang-Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 6, 2012.

MARY MURPHY

JUSTICE

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CURTIS HEATH, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 05-10-01085-CR

Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F09- 53486-K).

Opinion delivered by Justice Murphy, Justices Moseley and Lang-Miers participating.

Based on the Court's opinion of this date, the trial court's August 13, 2010 judgment in Case No. F-09-53486-K is MODIFIED as follows:

The "Statute for Offense" is modified to read: "22.02 Penal Code."

As modified, the judgment of the trial court is AFFIRMED.

Judgment entered June 6, 2012.

MARY MURPHY

JUSTICE