Opinion
No. 05-03-01522-CR
Opinion issued August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F00-54655-LK. Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
OPINION
Darrell Keith Adkins appeals the trial court's judgment revoking his community supervision and sentencing him to eighteen months' confinement and a $300 fine. In four points of error, appellant argues the trial court erred in failing to credit appellant with all of his eligible back time, failing to grant his motion to dismiss his appointed counsel, revoking his community supervision, and ordering appellant to a Substance Abuse Felony Punishment Facility (SAFPF). We affirm the trial court's judgment. On December 1, 2000, the trial court entered its judgment on appellant's guilty plea to the offense of possession of a controlled substance. The judgment sentenced appellant to two years' confinement but placed appellant on community supervision for five years. At the top of the judgment, stamped in large letters is "SAFPF." On December 13, 2000, the trial court released appellant from the requirement to attend SAFPF. On May 1, 2003, the State filed a motion to revoke appellant's probation. On May 22, 2003, the trial court entered an order modifying the conditions of community supervision and requiring appellant to submit to treatment at SAFPF for no more than six months. However, appellant refused to sign the order. In June 2003, appellant filed a handwritten "motion to withdraw counsel," but the trial court apparently took no action on the motion. On October 2, 2003, the trial court conducted a hearing at which the State presented appellant's plea of true to a motion to revoke appellant's probation. Appellant testified that he understood one of the reasons for the motion to revoke was that appellant refused to go to SAFPF. Appellant testified he still did not want to go to SAFPF and wanted jail time instead. The trial court revoked appellant's probation and sentenced him to eighteen months' confinement. The trial court stated appellant would get no back time credit for going to SAFPF. This appeal followed. In his first point of error, appellant argues his due process and due course of law rights were violated by the trial court's failure to give him back time credit for two periods. The record shows appellant was given back time credit for the periods from October 11, 2000 to December 1, 2000; April 22, 2003 to May 22, 2003; and September 24, 2003 to October 2, 2003. Appellant first complains he should have been given credit for the twelve days between December 1, 2000 when he was placed on community supervision and December 13, 2000, the day he was released from the requirement to attend SAFPF. Second, appellant complains he should have been given credit for the gap between May and September 2003 when he was held pending release to SAFPF. Defendants are entitled to time credit toward their sentences for time spent in confinement from arrest to sentencing according to the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a) (Vernon Supp. Pamph. 2004-05); Ex parte Walker, 150 S.W.3d 429, 431 (Tex.Crim.App. 2004). However, the trial judge is not required to give a defendant credit for time spent in confinement as a condition of community supervision. Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a) (Vernon Supp. Pamph. 2004-05); Ex parte Walker, 150 S.W.3d at 431. The trial judge has discretion to decide whether a defendant receives credit for such time. Ex parte Walker, 150 S.W.3d at 432. In Ex parte Walker, the defendant spent 119 days waiting for a space in SAFPF. Id. The court reasoned the time spent in SAFPF was served as a term of community supervision and the trial judge therefore did not err in refusing to grant back time credit for the time spent waiting to go to SAFPF. Id. By the same reasoning, we conclude the trial court did not err in refusing to give appellant credit for the time spent waiting to go to SAFPF in this case. Id. Our decision is not altered by the fact that appellant's refusal to sign the order requiring him to submit to SAFPF and refusal to cooperate may have contributed to the time he spent waiting in jail. We overrule appellant's first point of error. In his second point of error, appellant argues the trial court denied his right to due process and due course of law by failing to grant his motion to dismiss his appointed counsel. A defendant does not have the right to his own choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court. McKinny v. State, 76 S.W.3d 463, 477 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A trial court is under no duty to search until it finds an attorney agreeable to defendant. Perry v. State, 464 S.W.2d 660, 664 (Tex.Crim.App. 1971); McKinny, 76 S.W.3d at 477. Personal animosity, without more, does not mandate withdrawal of counsel. Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). A request for change of counsel cannot be made in a criminal proceeding so as to obstruct orderly procedure in the courts or to interfere with the fair administration of justice. Culverhouse v. State 755 S.W.2d 856, 861 (Tex.Crim.App. 1988). At the outset of the May 22, 2003 hearing on the State's motion to revoke, the trial judge asked appellant to verify his name. Appellant's counsel replied that appellant did not wish to testify, and the trial judge took judicial notice of appellant's identity. Appellant responded, "Oh, I did not say that. I just said I don't want him representing me." At the conclusion of the hearing, appellant's counsel stated that appellant had repeatedly indicated he did not want to go to SAFPF and wanted either to be continued on probation without SAFPF or sentenced to a short term in state jail. Nevertheless, the trial court entered an order requiring appellant to go to SAFPF. In June 2003, appellant filed a "motion to withdraw counsel" asserting that appellant and his counsel were in "fundamental and unalterable disagreement over the conduct of the defense." At the hearing on the State's further motion to revoke in October 2003, appellant's counsel continued to represent him. Appellant's counsel presented appellant's testimony that he did not want to go to SAFPF but wanted the trial judge to give him jail time. Appellant made no complaints concerning his counsel at the October 2003 hearing. Based on this record, we conclude that, at most, some personal animosity existed between appellant and his counsel, but this was not sufficient to warrant counsel's withdrawal. See Solis, 792 S.W.2d at 100. We overrule appellant's second point of error. In his third point of error, appellant argues the trial court erred in revoking his community supervision. Specifically, appellant asserts that all but one of the alleged violations were the same as had been litigated in the previous motion to revoke, and the remaining alleged violation was not a violation. The only question presented in an appeal from an order revoking probation is whether the trial court abused its discretion in revoking appellant's probation. Lloyd v. State, 574 S.W.2d 159, 160 (Tex.Crim.App. 1978). Proof of any one of the alleged violations is sufficient to support the order revoking probation. Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979). The May 22, 2003 order modifying the conditions of appellant's community supervision required appellant to submit to in-patient substance abuse treatment at SAFPF for no more than six months and then participate in a continuum of care treatment until discharged by the staff of the continuum of care program. The State's motion to revoke alleged, among other things, that appellant violated the terms of his community supervision because he was unsuccessfully discharged from SAFPF. At the hearing on the motion to revoke, appellant pled true to the State's allegations in the motion to revoke. Appellant testified he did not want to go to SAFPF. When he got to SAFPF, he "told them [he] didn't want to be down there and send me back in front of the Judge." Appellant testified he wanted the judge to "give [him] some jail time." Thus, the record is clear that appellant violated the condition of his community supervision by failing to submit to SAFPF. This one violation was sufficient to support the trial court's revocation of appellant's probation. See Moses, 590 S.W.2d at 470. We overrule appellant's third point of error. In his fourth point of error, appellant argues he was ordered to SAFPF without a finding that drug or alcohol abuse significantly contributed to the violation of community supervision or that appellant was a suitable candidate for treatment subjected appellant to cruel and unusual punishment. Appellant did not raise this objection at trial. Because appellant cannot complain about the community supervision conditions for the first time on appeal, we conclude appellant's complaint presents nothing for our review. See Speth v. State, 6 S.W.3d 530, 535 (Tex.Crim.App. 1999). We overrule appellant's fifth point of error. We affirm the trial court's judgment.