Lincoln v. State

Full title: HERSCHELL LINCOLN, JR., Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jun 15, 2010

No. 05-09-00341-CR (Tex. App. Jun. 15, 2010)

Opinion

No. 05-09-00341-CR

Opinion issued June 15, 2010. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-00215-V.

Before Justices MORRIS, FITZGERALD, and FRANCIS.

OPINION

Opinion By Justice MORRIS.

Before the trial court without a jury present, Herschell Lincoln, Jr. pleaded guilty to indecency with a child. He now contends the trial court erred by denying his motion to appoint new counsel. We affirm the trial court's judgment.

Factual Background

Appellant was originally charged with a different offense.¹ Before jury selection began in that case, appellant commented, "You know, I need another lawyer. I don't feel comfortable with him being my lawyer going into trial, sir." Appellant clarified that his appointed attorney was urging him to accept a plea bargain for fifteen year's confinement and he did not think his lawyer was "representing [him] to the fullest." He further commented that the attorney had delayed in hiring an investigator and as a result he had no witnesses to testify on his behalf. The trial judge stated that appellant's appointed counsel was well respected and asked the attorney if there was anything that would interfere with the attorney's representation of appellant. The attorney replied,

Judge, the only thing that I say is we — we don't get along. I don't think he understands what I've been trying to explain to him for months. He keeps saying, like he just said, he doesn't understand why he's here. . . . And I tell him, the little girl's testimony is all the State has to prove the case against you. If the jury believes that little girl, that's it. They don't have to have any kind of physical evidence. And I have told you that several times, over and over again. And I told you — outside of that, I said it is a fairly weak case, but with your prior history and what you are facing —

Appellant interjected, ". . . I'm saying, as far as you talking about the State and talking about my prior to convict me because of what she's saying, you understand me, that was implicated her daddy and them and all that, I don't feel like I should be in there . . . because she has STD and I don't have no STD." In response to these comments, the trial judge stated,

Mr. Lincoln, here's where we are. The State of Texas has obtained an indictment against you. They have witnesses that they are going to present which I assume they believe will prove this case beyond a reasonable doubt. You are going to be here with your attorney. You are going to have the right to cross-examine these witnesses. You are going to have the right to present witnesses on your behalf and you have the right to testify, if you so choose. That's how we resolve a conflict like this where you say you didn't do it and they say that you did.

So that's what we're going to do. We're going to have a trial this morning. So I'm going to deny your request for a substitution of counsel this morning.

Twenty days later, a trial against appellant for the offense of indecency with a child commenced with the same complainant but a new cause number. Appellant pleaded guilty to the offense. When reminded that "it's been a long road to get you to this point," appellant agreed. Appellant further agreed that his plea of guilty in exchange for the reduction of the offense to a third-degree felony that would not require him to register as a sexual offender for the rest of his life was the best way to handle his case. When asked if he had questions for his attorney or for the judge, appellant replied that he did not. When asked if the attorney had done everything that appellant had asked him to do, appellant replied, "Yes, sir." The trial judge then noted that, although he was not bound to follow the sentencing recommendation made by the State, he would honor the request and set appellant's sentence at ten years' confinement. The parties agreed to transfer the back-time credit appellant had earned under the previous cause number to this case, and the State agreed to file a motion to dismiss the case under the previous cause number. When asked if he had any questions about his right to file an appeal, appellant responded, "No, sir."

Discussion

In his sole point of error on appeal, appellant complains the trial court erred in denying his motion for appointment of new counsel. To the extent he is arguing that the trial court erred by failing to appoint new counsel while he was still charged with the original offense, that cause is not before this Court. Moreover, to the extent he is arguing that the trial court should have appointed new counsel for appellant in the current case, his argument is waived because he failed to raise it once the proceedings for the current indecency offense began. See Tex. R. App. P. 33.1(a) We overrule appellant's sole point of error. We affirm the trial court's judgment.