Martinez v. State

Full title: Pedro Martinez, Jr., Appellant v. State of Texas, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: May 20, 2010

No. 01-09-00562-CR (Tex. App. May. 20, 2010)

Opinion

No. 01-09-00562-CR

Opinion issued May 20, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 178th District Court Harris County, Texas, Trial Court Case No. 1216708.

Panel consists of Justices JENNINGS, HANKS, and BLAND.

MEMORANDUM OPINION

JANE BLAND, Justice.

A jury found Pedro Martinez, Jr., guilty of failure to comply with sex offender registration requirements, a third degree felony, and found true that Martinez had a prior felony conviction for attempted murder. The trial court assessed punishment at seventeen years' imprisonment. On appeal, Martinez contends that (1) the judgment against him is void because the assignment order did not confer on the trial judge the authority to preside over his case, and (2) the trial court erred in denying his request to remove his appointed attorney and appoint him new counsel. Finding that Martinez waived his first contention and that the trial court did not err in denying Martinez's request for new counsel, we affirm.

Background

In 1986, Martinez was convicted of aggravated sexual assault of a child and incarcerated. In May 2006, the State released Martinez on the condition that he register as a sex offender in accordance with chapter 62 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 62.001-62.408 (Vernon 2007 Supp. 2009). The registration rules required Martinez to notify the registration authority within seven days of an address change and re-register each year within thirty days of his birth date. See TEX. CODE CRIM. PROC. ANN. art. 62.058. After Martinez failed to re-register in 2007, law enforcement apprehended him and charged him with failure to comply with the sex offender registration requirements. Just before jury selection, Martinez learned that a visiting judge, sitting by assignment, would preside over his trial. Martinez prepared and filed a motion "request[ing] that Judge Mendoza [the judge elected to that court] preside over this trial. There is a visiting Judge on the bench [at] this time and the Defendant requests that he be re[cused]." The visiting judge denied the motion and referred the matter to the presiding judge. The presiding judge "reviewed the motion and [] concluded that it does not state legally sufficient grounds for disqualification or recusal. The motion fails as a matter of law and therefore no hearing is necessary." The visiting judge informed the parties of the presiding judge's conclusion, and Martinez made no further objection. Next, the trial court took up the issue of Martinez's legal representation. Martinez told the court, "I would like to if possible get another lawyer, but if not I would be — I would represent myself on the grounds that [my current appointed attorney] . . . seems biased against me in this case because of my past and I'm on parole and why [I] . . . have to register." When asked for an example of why he thought defense counsel was biased, Martinez explained:

Because earlier he told me that when we pick the jurors that all of them have children and all of this, you know, and they're going to, you know — I said, listen, I'm trying to fight this case here, okay? I want us to try and get into some — some method to attack[] that even if it's a technicality.

The trial court responded by engaging Martinez in a colloquy concerning the consequences of declining representation by his appointed counsel and proceeding pro se. During the colloquy, the trial court repeatedly encouraged Martinez to continue with appointed counsel, suggesting that it would be a better strategy "to allow Mr. Scott to represent you, and if you're unhappy with the outcome, seek a reversal on the ground of ineffective assistance rather than go to trial and represent yourself." Martinez indicated that he would prefer to handle his own case. The trial court found that

Mr. Martinez has expressed a desire to represent himself, that his waiver of counsel is made knowingly, intelligently, and without threat or promise of benefit; therefore, it's without coercion; that he has been informed of his right to counsel. . . . [T]he Court has inquired about Mr. Martinez' age and his background, education, and experience. Mr. Martinez has been made aware of the general nature of the offense, the technical rules of evidence and procedure, and the fact that he will not be given special consideration. . . .

The trial court then allowed Martinez to represent himself and reassigned the appointed attorney to serve as standby counsel. Following the trial court's entry of judgment on the jury's finding of guilt, Martinez timely appealed.

Discussion

Denial of motion to recuse trial judge

Martinez first contends that the trial court lacked authority to preside over his case and sign the judgment because no valid order assigning the visiting judge to the trial court bench existed at the time of Martinez's trial and sentencing. A defendant may object to an otherwise qualified trial judge who is presiding pursuant to a defective assignment. Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998). But the defendant must raise this purely procedural objection pretrial; "if he does not, he may not object later or for the first time on appeal." Id. "A timely objection in the trial court will afford both the trial judge and the State notice of the procedural irregularity and an adequate opportunity to take appropriate corrective action." Id. at 380-81. Before trial, Martinez identified the trial judge's visiting status as the sole basis for his objection.¹ This objection does not encompass the procedural irregularity he now complains of on appeal. We hold that Martinez's appellate issue is not preserved because the basis for his objection in the trial court fails to comport with his argument on appeal. See Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim. App. 1994); see also Johnson v. State, 263 S.W.3d 287, 289 (Tex. App.-Houston [1st Dist.] 2007, pet. dism'd) ("An objection stating one legal theory may not be used to support a different legal theory on appeal.").

Denial of motion to appoint new counsel

In his second issue, Martinez contends that the trial court's denial of his motion to discharge his appointed lawyer and to appoint a new lawyer violates his constitutional right to counsel, claiming that his ultimate decision to proceed pro se instead of continuing with the first-appointed lawyer was not voluntary. Both the United States and Texas Constitutions guarantee the right to counsel in criminal cases and contemplate the right to obtain paid, non-appointed counsel of the defendant's choosing. United States v. Gonzalez-Lopez, 548 U.S. 140, 151-52, 126 S. Ct. 2557, 2565-66 (2006); Gonzalez v. State, 117 S.W.3d 831, 836-37 (Tex. Crim. App. 2003). The Texas Code of Criminal Procedure authorizes the replacement of appointed counsel for good cause. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (Vernon 2009). The trial court retains the discretion to determine whether good cause requires replacement and "is under no duty to search for a counsel until an attorney is found who is agreeable to the accused." Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990); see King v. State, 28 S.W.3d 556, 566 (Tex. Crim. App. 2000); Trammell v. State, 287 S.W.3d 336, 343 (Tex. App.-Fort Worth 2009, no pet.) ("Texas courts have specifically held that an indigent defendant does not have a right to the counsel of his own choosing."); Maes v. State, 275 S.W.3d 68, 71 (Tex. App.-San Antonio 2008, no pet.) ("A defendant does not have the right to choose appointed counsel, and unless he waives his right to counsel and chooses to represent himself, or shows adequate reasons for the appointment of new counsel, he must accept court-appointed counsel."). The record reflects that the trial court did not agree with Martinez's characterization of his attorney's comments as demonstrating bias against Martinez; rather, the trial court viewed the reported comments as a frank assessment of the advantages and disadvantages of potential strategies available in Martinez's case. We defer to the trial court's first-hand evaluation of Martinez's complaints and therefore hold that the trial court did not abuse its discretion in denying Martinez's motion for new appointed counsel.

Conclusion

We hold that Martinez waived his complaint concerning the validity of the judgment and that the trial court did not abuse its discretion in declining to appoint another attorney to represent Martinez and allowing Martinez to represent himself in the trial court. We therefore affirm the judgment of the trial court.