Tettleton v. State

Full title: STEVEN WAYNE TETTLETON, JR., Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 9, 2005

Nos. 05-04-01834-CR, 05-04-01835-CR, 05-04-01837-CR (Tex. App. Nov. 9, 2005)

Opinion

Nos. 05-04-01834-CR, 05-04-01835-CR, 05-04-01837-CR

Opinion issued November 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 86^th District Court, Kaufman County, Texas, Trial Court Cause Nos. 21451, 21540, 21541. Affirmed in part, Dismissed in part.

Before Justices MORRIS, WRIGHT, and RICHTER.

OPINION

Opinion By Justice MORRIS.

In these three cases, appellant was convicted of five sexual offenses involving children. He was specifically convicted in cause number 05-04-01837-CR of one count of sexual assault of a child, one count of sexual performance of a child, and one count of promotion of child pornography. In cause numbers 05-04-01834-CR and 05-04-01835-CR, he was convicted of sexual assault of a child and possession of child pornography, respectively. He now complains that the trial court erred in adjudicating his guilt in cause number 05-04-01837-CR and revoking his community supervision in the other two cases because he was not permitted to substitute counsel at the hearing.¹ In cause number 05-04-01837-CR, we dismiss the appeal for want of jurisdiction. In the other two cases, we conclude the trial court did not abuse its discretion and affirm the trial court's judgments.

1 Appellant actually contends that he originally received deferred adjudication in all three cause numbers. The record, however, indicates that appellant was placed on regular community supervision, rather than deferred adjudication community supervision, in cause numbers 05-04-01834-CR and 05-04-01835-CR.

Factual Background

After the State filed its motions to revoke appellant's community supervision and adjudicate his guilt, he filed a pauper's oath. The trial court appointed an attorney to serve as appellant's counsel. Approximately two months later, the court appointed a new attorney to appellant's cases. The record does not indicate why the original attorney was replaced. Then, approximately one month later and two days before the hearing on the State's motion to revoke appellant's community supervision and adjudicate his guilt, a third attorney filed a motion for substitution of counsel. The third attorney testified at the revocation hearing. He stated that he had just been retained for appellant by appellant's father. The attorney claimed he required a continuance so he could locate certain Secret Service agents to testify on appellant's behalf. The attorney acknowledged that previous delays in the cases had probably been caused by appellant. The State opposed a continuance in the cases. The trial court denied the third attorney's motion for substitution of counsel and, therefore, did not consider further the motion for continuance. Appellant was then represented at the hearing on the motion to revoke regular community supervision and to adjudicate appellant's guilt by his second, appointed attorney. Before the hearing, appellant testified that he had thoroughly discussed his cases with the appointed attorney. He acknowledged that he refused to work with the appointed attorney approximately two weeks before the hearing when he became convinced that the third attorney had already been retained in the cases. He persisted in refusing to participate in preparation of the cases with the appointed attorney even after the appointed attorney contacted the third attorney, who informed her he had not at that time been retained to represent appellant. Approximately one week before the hearing, appellant signed a handwritten document admitting that the appointed attorney had tried to prepare the cases and that appellant had refused to talk to her and refused to list the witnesses he wanted at the hearing. Appellant stated that the appointed attorney was a "fine attorney." He acknowledged that she had done everything he had asked her to do in preparing the case "[t]o the fullest." He stated that he was happy with her representation. Evidence at the hearing showed appellant had failed to report to his community supervision officer, failed to register as a sex offender, failed to attend sex offender counseling, failed to pay the fines and court costs assessed against him in his cases, failed to submit DNA samples, and was living at an address that was within one thousand feet of a school. Appellant's community supervision officer stated that, before the motions to revoke had been filed, appellant had informed him that he had done some work with federal agents. Appellant asked if he could get travel permits to leave the country. The officer told appellant he would need information from the federal agents before he could do anything. No federal agent ever called the community supervision officer. Appellant testified in his defense at the revocation hearing. He claimed he had tried a few times to register as a sex offender but had not been able to reach the police officer responsible for registering sex offenders. He claimed he had informed the community supervision department that he had already had to submit DNA to the State for the paternity testing of his daughter, so he believed he had complied with that condition of his community supervision. Appellant stated that, while he was on bond in the case before his convictions, he informed his community supervision officer that he was being used as a confidential informant for the Secret Service. He claimed the officer told him it would be okay for him to continue acting as an informant "as long as [he] didn't have to do anything extravagant that [he] would have to get permission for." Appellant said that after his arrest on the motions to revoke, he told his community supervision officer that he failed to comply with his community supervision conditions because he was in fear for his life and for the life of his family, fiancee, and then-unborn son. He stated that approximately a week and a half after he pleaded guilty in the cases, he and his father started getting threatening phone calls saying that he was going to be killed. The callers claimed they now knew appellant's name and where his family lived. Appellant said that he thought it was in his "best interest" to hide himself and his family. He claimed he kept in contact with his community supervision officer by cell phone. He also claimed that when his first cell phone was cut off, he gave the community supervision officer his new cell phone number. The community supervision officer denied this. The officer made the following entry in his notes after vising appellant in jail after his arrest on the motions to revoke:

. . . The defendant stated that he ran because the Columbians he was doing CI work for with the [S]ecret [S]ervice found out about him and they were after him. I asked him why he did not call me and tell me this. He stated he does not trust anyone in Kaufman County and he thinks it is too corrupt. . . . He stated the Columbians stated they were going after him and his family and that that was the final straw. I told [appellant] that he was given a bond. He stated he does not have the money and if he got out, he would run again because of the Columbians.

The trial court found appellant had failed to register as a sex offender within seven days of being placed on community supervision, failed to pay his court costs, failed to cooperate with his counselor and officer in the sex offender program, failed to attend sex offender counseling as instructed, and failed to submit a DNA sample as instructed.

Discussion

We first address appellant's issue as it pertains to cause number 05-04-01837-CR. Appellant argues that the trial court erred by failing to permit him to substitute counsel before his guilt was adjudicated. These arguments concern the trial court's decision to adjudicate appellant's guilt. Accordingly, this Court has no jurisdiction to address them under article 42.12, section 5(b) of the Texas Code of Criminal Procedure. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992). We dismiss the appeal of cause number 05-04-01837-CR for lack of jurisdiction. Next, we address appellant's sole issue on appeal in cause numbers 05-04-01834-CR and 05-04-01835-CR. Appellant contends the trial court erred when it refused to permit the third, retained attorney to represent him at the hearing on the motions to adjudicate and revoke his community supervision. A defendant has a right to secure counsel of his choice. See Powell v. Alabama, 287 U.S. 45, 53 (1932). The right, however, is neither unqualified nor absolute. See United States v. Barrentine, 591 F.2d 1069, 1075 (5^th Cir. 1979). A defendant may not manipulate his right to select counsel so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. See Hubbard v. State, 739 S.W.2d 341, 344 (Tex.Crim.App. 1987). In these cases, the trial court would have permitted the attorney to represent appellant if he had not required a continuance. We will analyze the cases, therefore, under the standard set out by the court of criminal appeals in Ex parte Windham, 634 S.W.2d 718 (Tex.Crim.App. 1982). Under Windham, we weigh several factors against one another in deciding if the trial court erred in denying a motion for continuance to allow the defendant to be represented by counsel of his own choice. The factors include: (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, the opposing counsel, and the trial court; (6) whether the delay was for legitimate or contrived reasons; (7) whether the case was complex or simple; (8) whether the denial of the motion resulted in some identifiable harm to the defendant; and (9) the quality of the legal representation actually provided. Windham, 634 S.W.2d at 720. We will not reverse a trial court's decision to deny a motion for continuance unless it is shown that the court abused its discretion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996). It is not our role to reweigh the individual Windham factors but to determine whether the trial court could reasonably have balanced them and concluded that the fair and efficient administration of justice weighed more heavily than appellant's right to counsel of his choice. See Greene v. State, 124 S.W.3d 789, 794 (Tex.App.-Houston [1^st Dist.] 2003, pet. ref'd). Here, appellant was represented at the hearing by his second appointed attorney, whom he regarded as a "fine attorney." The third attorney was not retained until two days before the hearing, although appellant had known about the attorney for some time and had already caused delays in his cases. Even without the third attorney, the defense was able to put on evidence showing the threats against appellant that he claimed forced him to go into hiding and fail to comply with the conditions of his community supervision. Despite these claims, appellant put on no evidence showing how his fear of attacks against him and his family prevented him from paying the court costs that were a condition of his probation. Moreover, he claimed the harassing phone calls did not begin until approximately a week and a half after his probation was revoked. This explanation does not justify appellant's failure to register as a sex offender within seven days of his conviction. Apparently, appellant's attorney wanted time to access witnesses to prove his claim that he had been a confidential informant for the Secret Service and, as a result, became fearful that his life and the lives of his family members were in danger. This evidence, however, would have done nothing to refute the State's proof that appellant failed to pay court costs and failed to register as a sex offender. And proof by a preponderance of the evidence of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. [Panel Op.] 1980). Under the facts of this case, we conclude the trial court did not abuse its discretion in refusing to allow appellant to substitute counsel. In cause number 05-04-01837-CR, we dismiss the appeal for want of jurisdiction. In the other two cause numbers, we resolve appellant's sole issue against him and affirm the trial court's judgments.