Opinion
No. 05-11-00304-CR No. 05-11-00305-CR
07-27-2012
ANTHONY CHARLES GARRETT, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 27, 2012.
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1024587-R and F-1024588-R
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
Anthony Charles Garrett appeals his convictions for the aggravated assaults of his girlfriend and her adult son. In a sole issue, he complains the trial court erred in denying his motion for new counsel. We affirm the trial court's judgments. Because the law to be applied is well-settled, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. BACKGROUND
Garrett was charged with assaulting his girlfriend and her son with an iron, bottle, and knife. See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). Garrett met with his counsel a month after his arrest and elected to proceed before a jury. During the next seven months leading to trial, trial counsel investigated the case, filed an "omnibus pre-trial motion," obtained discovery from the prosecutor, and engaged in plea negotiations.
On the day of trial, after Garrett's arraignment and entry of not guilty pleas to both charges, trial counsel announced he was not ready for trial. When the trial judge asked him to explain why, the following discussion occurred:
[DEFENSE COUNSEL]: I'm not ready. I have a complete failure to communicate with my client. My client does not want me to be his lawyer any further, he does not want to proceed with a jury trial. He's not listened to or wanted to understand my advice.The prosecutor then offered into evidence a jail letter from Garrett to his girlfriend. In the letter, written the same day Garrett first met with trial counsel, Garrett stated he had met with his attorney that day and his attorney would be calling her. The trial court admitted the letter for record purposes and, after the prosecutor listed all the documents she had tendered to defense counsel in preparation for trial, denied Garrett's "request for a continuance and/or a new attorney." Garrett then waived his right to a jury trial, changed his pleas to guilty, and pleaded true to two enhancement paragraphs. Following punishment testimony and a recess to allow for a presentence report, the trial court found Garrett guilty of both offenses, found the enhancement paragraphs true, and assessed concurrent twenty five year sentences.
THE COURT:So as far as your point of view, have you investigated this case?
[DEFENSE COUNSEL]: Yes.
THE COURT: Have you gotten the discovery from the State?
[DEFENSE COUNSEL]: Yes.
THE COURT: Other than your client's lack of cooperation, are you ready to try this case?
[DEFENSE COUNSEL]: The only other thing, Judge, I'll make note to the Court, as I made earlier, a doctor has seen Mr. Garrett. He told me he had some psychological problems, and it came up last night that he may have some records at a hospital that I have not investigated and I wish I had in front of me to use for mitigation if it's a punishment issue.
THE COURT:Do we have a written report from Dr. Pittman who examined Mr. Garrett this morning?
[DEFENSE COUNSEL]:Yes.
THE COURT: And what does Dr. Pittman conclude in his -
[PROSECUTOR]: Your Honor, if I may comment after he finishes submitting that.
THE COURT: Yeah, you can. . . . what does Dr. Pittman conclude?
[DEFENSE COUNSEL]: He told me - I haven't read his report, but he did tell me he was competent.
[PROSECUTOR]: I read it and that's what it said, that he is competent.
THE COURT: Where is the report?
[DEEFENSE COUNSEL]: It's - I think it's maybe out here.
THE COURT: Let me - either side have any objection to me reviewing the report since it's addressed to me?
[PROSECUTOR]: No objection from the State, Your Honor.
[DEFENSE COUNSEL]: No objection.
THE COURT: Dr. Pittman finds the defendant to be competent. All right. Mr. Garrett, your lawyer has announced ready for trial.
THE DEFENDANT:I'm not ready, sir. I haven't been able to prepare nothing. The first time that me and Mr. Cox ever just talked to each other, other than last night about 8:20 or so. So I don't know nothing about him, he don't know nothing about me, didn't file nothing, show me nothing. He aint' file no motions or nothing.
[DEFENSE COUNSEL]: I did file motions.
THE DEFENDANT:I ain't got no copy of it. He told me nothing. This [is] the first time he talking to me. So I don't feel comfortable with him.
THE COURT:And you knew this case was set for trial, is that correct?
THE DEFENDANT: No, sir, not until last night.
THE COURT: Not until last night?
THE DEFENDANT:Not until last night at 8:20, he came to see me last night, told me I was going to jury trial today. That's why I'm dressed like I'm dressed now and everything.THE COURT:All right. Off the record . . . .
[BREAK]
THE COURT:Back on the record. The State wishes to put something on the record in regards to Mr. Garrett's allegations. Go ahead, counsel.
II. Motion for New Counsel
Garrett asserts in his sole issue that the trial court erred in denying his motion for new counsel when Garrett (a) "clearly had a problem with his trial counsel" and (b) demonstrated, with testimony that trial counsel had failed to obtain hospital records and failed to keep Garrett informed about the case, that trial counsel's "interest in getting to trial prevailed over those of [Garrett's]." In response, the State argues no error occurred because Garrett failed to present evidence of the existence of a conflict of interest and his allegations of "general dissatisfaction" with trial counsel were insufficient to warrant new counsel.
A. Applicable Law
The Federal and Texas constitutions guarantee a criminal defendant the right to the assistance of counsel. Gonzalez v. State, 117 S.W.3d 831, 836 (Tex. Crim. App. 2003). A defendant's right to counsel, however, may not be manipulated to obstruct the judicial process, and it does not require the trial court to appoint counsel agreeable to the defendant. Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Maes v. State, 275 S.W.3d 68, 71 (Tex. App.-San Antonio 2008, no pet.). Unless the defendant effectively waives his right to counsel or shows adequate cause for appointment of a different attorney, such as a conflict of interest, the defendant must accept counsel assigned by the court. Thomas, 550 S.W.2d at 68; Maes, 275 S.W.3d at 71; Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd); see also Tex. Code Crim. Proc. Ann. Art. 26.04(j)(2) (West Supp. 2011) (authorizing removal of appointed counsel for "good cause").
A defendant dissatisfied with his appointed counsel must bring the matter to the court's attention and bears the burden of proving he is entitled to a change of counsel. Stephenson v. State, 255 S.W.3d 652, 655 (Tex. App.-Fort Worth 2008, pet. ref'd) (mem. op.) (per curiam) (citing Malcolm v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982); Webb v. State, 533 S.W.2d 780, 784 n.3 (Tex. Crim. App. 1976)). Generally, conclusory allegations of conflicts of interest, disagreements on trial strategy, and personality conflicts are insufficient to satisfy the defendant's burden. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Carroll, 176 S.W.3 at 257. When, as here, a defendant seeks a last-minute change of counsel and does not waive counsel and assert the right to self-representation, the trial court may compel the defendant to proceed to trial with the attorney he has. Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991); see also Carroll, 176 S.W.3d at 256, 257-58.
B. Standard of Review
An appellate court reviews a trial courts ruling on a motion for new counsel under an abuse of discretion standard. Carroll, 176 S.W.3d at 256.
C. Application of Law to Facts
Although Garrett asserts he showed new counsel was warranted because of his "problem" with trial counsel and trial counsel's conflict of interest, we agree with the State that Garrett failed to meet his burden. Garrett's "problem" with counsel appears to have been based on a lack of communication. Trial counsel testified Garrett would not listen to or want to understand his advice, and Garrett testified he did not feel trial counsel knew him, he was unaware of any motions that had been filed on his behalf, and he was unaware that a trial date had been set. While the testimony might show a personality conflict or general dissatisfaction with counsel, it is insufficient to satisfy Garrett's burden. See Maes, 275 S.W.3d at 71-72 (no abuse of discretion in denying motion to dismiss court-appointed counsel where motion supported only by "vague expression of dissatisfaction" and disagreement with counsel over trial strategy; appellant argued an "irreparable, antagonistic relationship [existed] between [him] and appointed counsel" and stated he no longer wanted [appointed counsel's] representation).
Similarly, Garrett's general assertion that trial counsel had a conflict of interest is also insufficient. Trial counsel's failure to request the complained-of records was explained to be the result of Garrett's late disclosure, not trial counsel's own interest. And, while testimony that trial counsel failed to keep Garrett informed on the status of the case might show a general dissatisfaction with counsel, it did not show trial counsel had an "interest in getting to trial" that conflicted with Garrett's interests. See Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007) ("'actual conflict of interest' exists if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests (perhaps counsel's own) to the detriment of his client's interest.").
By the time Garrett moved for new counsel, trial counsel had met with Garrett at least twice, investigated the case, filed pre-trial motions, obtained discovery from the prosecutor, and engaged in plea negotiations. Trial counsel was prepared for trial, and nothing in the record shows any new counsel would have been prepared to proceed without a delay of trial. Moreover, although Garrett was allowed to testify and could have expanded on his reasons for his dissatisfaction with counsel and perceived conflict of interest, Garrett failed to do so. Given the record before us, we conclude Garrett failed to meet his burden of showing he was entitled to new counsel, and the trial court did not abuse its discretion in denying Garrett's motion. See King, 29 S.W.3d at 566 (no abuse in discretion in denying motion to withdraw where appellant's complaint stemmed from dissatisfaction with counsel's failure to provide him with updated and certain other unspecified information; record reflected counsel had worked on case for several months, substitution of counsel could have necessitated continuance, and appellant failed to expand on his reasons for dissatisfaction with counsel); Butler v. State, 300 S.W.3d 474, 484-85 (Tex. App.-Texarkana 2009, pet. ref'd) (no abuse of discretion in denying motion to withdraw; complaint that counsel not acting in appellant's best interest and had not met with appellant to discuss witnesses, alibis, and whether to proceed before a jury was "minimal"). We decide Garrett's issue against him.
III. Conclusion
Having decided Garrett's sole issue against him, we affirm the trial court's judgments.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110304F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANTHONY CHARLES GARRETT, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00304-CR
Appeal from the 265th Judicial District court of Dallas County, Texas. (Tr.Ct.No. F- 1024587-R).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 27, 2012.
DOUGLAS S. LANG
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANTHONY CHARLES GARRETT, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00305-CR
Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F- 1024588-R).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 27, 2012.
DOUGLAS S. LANG
JUSTICE