No. 05-09-00579-CR
Opinion Filed June 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 56599.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
Opinion By Justice RICHTER.
A jury convicted appellant of aggravated robbery and sentenced him to twenty years' imprisonment and a $10,000 fine. Appellant raises five issues on appeal. First, appellant contends the trial court abused its discretion by dismissing his court-appointed attorney on the day of trial and denying his oral motion for continuance. Appellant also argues the trial court erred in denying his motion for new trial without a hearing because counsel's performance was deficient as a matter of law, he was deprived of an opportunity to develop his ineffective assistance claim and because counsel was not timely appointed to represent him. Finally, appellant argues the evidence is legally and factually insufficient to support his conviction. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
During oral argument, counsel withdrew an additional issue concerning alleged charge error.
I. Background
Mason was convicted of aggravated robbery under the law of parties. At trial, Don Thompson testified that he stopped at a convenience store on his way home from work on August 15, 2007. When he drove into the parking lot, he noticed a Lincoln Continental automobile with a man he identified as appellant in the driver's seat. Two other men were standing outside by the vehicle. As he exited the convenience store, the same two men approached him. One of the men blocked his entrance into his truck and demanded his wallet. Thompson initially refused, and told the men he had only four dollars. The man displayed a cocked gun half out of his pocket and again demanded Thompson's wallet. Thompson decided to comply. The two men then ran to the side of the convenience store where the Lincoln had been parked and got into the car. The Lincoln drove away. A Lincoln matching the description Thompson gave police was stopped a short distance away from the convenience store. The vehicle was occupied by five men, one of whom was appellant. Two other men in the vehicle, Khyrie Davis and Ricky George, were subsequently charged with and pleaded guilty to the robbery. Both Davis and George identified appellant as the driver of the Lincoln and stated that appellant was aware of the robbery. II. Discussion
Dismissal of Court Appointed Attorney.
In his first issue, appellant argues the trial court abused its discretion because the court "disregarded its duty to establish that an attorney client relationship existed" with his retained counsel before dismissing his court-appointed attorney. Appellant contends that as a result, he was deprived of his right to counsel. We disagree. Counsel was appointed for appellant, but appellant became dissatisfied with his court-appointed counsel and requested the appointment of new counsel. On the Friday before the Monday on which trial was to begin, attorney Carl White visited appellant in jail. White also attempted to bond appellant out of jail. Appellant assumed White was a new court appointment, but later learned that his mother retained White on his behalf. On the morning of trial, the court granted White's motion to substitute as counsel for appellant. Appellant was present at the hearing and had an opportunity to address the court, but made no objection to White. After counsel moved for a continuance "at [his] client's request," the following exchange occurred between appellant and the court: THE COURT: I assume when you retained your attorney, you told him you were set for trial today. Did you not tell him that, Mr. Mason?
APPELLANT: No, sir, I didn't know until last week.
THE COURT: That is not the truth.
APPELLANT: No, I didn't know-
THE COURT: You knew when you retained him last Friday that your case was-
APPELLANT: Yeah, I knew that.
THE COURT: — set for trial this morning. You didn't tell your attorney, did you?
APPELLANT: No, sir.
THE COURT: Okay. So I assume you didn't want him to know that he was going to trial this morning.
APPELLANT: No, I thought he already knew since he was — I didn't know that he didn't know. I thought it was a court appointed first. I put in a form for a new lawyer. I didn't know my mom paid for one.
A trial court's decision to allow a withdrawal and substitution of counsel is reviewed under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). This discretion includes the option to allow last-minute substitution of counsel. See Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules and principles or acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). As long as the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion and the trial court's ruling will be upheld. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Relying on Arabzadegan v. State, 240 S.W.3d 44, 49-50 (Tex. App.-Austin 2007, pet. ref'd); Plattenburg v. State, 972 S.W.2d 913, 917 (Tex. App.-Beaumont 1998, pet. ref'd) and similar cases, appellant maintains that an agreement between a family member of the accused and an attorney does not, of itself, create an attorney-client relationship. While we do not disagree with this general legal principle, the line of cases appellant cites are factually in opposite to this case. For example, in Plattenburg, the court considered the admissibility of the accused's written statement taken outside the presence of counsel after the accused's mother hired counsel to represent him. Plattenburg, 972 S.W.2d at 916. In reaching its conclusion that there was no attorney-client relationship at the time the accused gave his statement, the court relied on the fact that the accused had never conferred with the lawyer and did not inform the officers he was represented by counsel. Id. at 916-17. Similarly, in Arabzadegan, the court considered whether the defendant had an attorney-client relationship with his attorney at the time he waived his rights and consented to give a statement. Arabzadegan, 240 S.W.3d at 49. The court noted that the defendant was unaware of the attorney's existence or the fact that the attorney planned to offer his services. Although the attorney made an unsuccessful attempt to meet with the defendant, he was unable to do so until after the defendant had confessed. Id. at 46, 53. Concluding that there was no attorney-client relationship before the confession, the court observed that "[t]o establish an attorney-client relationship, the parties must explicitly or by their conduct manifest an intent to create it." Id. at 49-50. In the present case, however, the parties' conduct evidences an intent to create an attorney-client relationship. Appellant was not only aware that White was his new attorney, he met with him the Friday before trial. Although appellant was confused about whether the attorney was appointed or retained, the source of payment is not material to this analysis because there is nothing to indicate appellant was not aware that White was his new attorney. Appellant's dialogue with the court is instructive in this regard. When the court inquired about whether appellant told his new attorney about the trial setting, the questions were premised on the fact that White was appellant's counsel. Appellant never objected to this characterization, and his responses indicate that he accepted the premise of the questions. Because appellant affirmatively requested the replacement of his prior counsel, met with counsel before the hearing, and was present when the court considered the motion for substitution of counsel, there was no reason for the court to suspect that appellant had not accepted White as his new attorney. Under these circumstances, we conclude the record establishes the existence of an attorney-client relationship between appellant and White. In addition, after the court denied the continuance, appellant proceeded to trial with White acting on his behalf and never objected to White or questioned whether White was his lawyer. If appellant did not want White to represent him, he was required to object to the representation before he was tried and convicted. See McGee v. State, 124 S.W.3d 253, 257 (Tex. App.-Fort Worth 2003, pet. ref'd) (concluding complaint regarding denial of specific counsel was waived because alleged error not raised in the trial court). As the Court of Criminal Appeals has observed, the right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). Appellant also argues the trial court abused its discretion in allowing the substitution because appellant "had not ever conferred with the lawyer about the facts of the case or any potential defenses" and because the lawyer did not have adequate time to prepare for trial. These assertions, however, were not before the trial court at the time of the motion. Although counsel requested a continuance "until [he was] prepared to try the case — per the request of [his] client," counsel did not elaborate on his level of preparation or interaction with his client. Therefore, we cannot conclude the trial court acted outside the zone of reasonable disagreement in allowing the substitution of counsel. Appellant's first issue is overruled. Oral Motion for Continuance.
In his second issue, appellant argues the trial court erred in denying his oral motion for continuance because he had inadequate time to prepare for trial. According to appellant, this was tantamount to having no legal representation and constitutes a denial of due process. Article 29.03 of the Texas Code of Criminal Procedure provides in pertinent part "[a] criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). In addition, article 29.08 provides that "[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance." Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2006). The Texas Court of Criminal Appeals has concluded that oral motions for continuance preserve nothing for appellate review. See, e.g., Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995). Appellant does not dispute that his motion for continuance was not in writing and was not sworn to as required by the rules of criminal procedure. Instead, he urges that we apply equitable principles to conclude that his oral motion is sufficient to preserve error. As this court recently observed, however, equitable principles have only been applied in limited situations involving wrongdoing on the part of the prosecution. See Wise v. State, No. 05-08-01199-CR, 2009 WL 2648389 at * 9 (Tex. App.-Dallas 2009, no pet.) (not designated for publication). There is no claimed misconduct here. Therefore, we conclude that by failing to file a sworn, written motion for continuance, appellant has failed to preserve his complaint for our review. See Ricketts v. State, 89 S.W.3d 312, 317 (Tex. App.-Fort Worth 2002, pet. ref'd). Appellant's second issue is overruled. Motion for New Trial.
In his third and fourth issues, appellant argues the trial court erred in denying his motion for new trial without a hearing. Appellant insists that a new trial should have been granted because trial counsel's poor performance is so apparent that it is deficient as a matter of law. Appellant also argues the trial court erred in failing to conduct a hearing on his ineffective assistance claim because he was entitled to develop the record on counsel's allegedly deficient performance. Appellant further claims the trial court erred because it did not timely respond to his request for appointed counsel and he was therefore "effectively unrepresented" during the time he was required to file and present a motion for new trial. A. Timely Appointment Of Counsel
We first consider appellant's claim that he was without counsel during the thirty days following his conviction. A defendant is entitled to counsel at all critical stages of the proceedings. Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978). The period for filing a motion for new trial is a critical stage of the proceedings. Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). Generally, there is a presumption that trial counsel continued to represent the defendant during the period for filing a motion for new trial; however a defendant can refute this presumption by showing he was deprived of counsel, which ultimately resulted in the lack of an opportunity to file a motion for new trial. Green v. State, 264 S.W.3d 63, 69 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd); see also Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) . In this case, appellant's sentence was imposed on February 18, 2009. On March 9, appellant sent a letter to the judge requesting the appointment of new counsel. There was nothing to indicate appellant had returned to indigent status or that his retained counsel no longer represented him. On March 20, appellant filed a pro se motion for new trial. The motion asserted ineffective assistance of counsel, but did not request a hearing. The court appointed new counsel on March 23 and appellant's affidavit of in degency was filed at this time. Appellant's newly appointed counsel did not request a hearing on the motion for new trial or seek permission from the court to present the motion out of time. See Tex. R. App. P. 21.6. On April 29, the court notified the parties that the motion for new trial was set for hearing on May 14. Counsel did not object that the motion was set outside the seventy-five day time frame for the court to rule before the motion would be overruled by operation of law. See Tex. R. App. P. 21.8. Instead, counsel moved for the issuance of subpoenas for the May 14 hearing. The record does not reflect whether the May 14 hearing was ever conducted, and the motion for new trial was overruled by operation of law of May 4, 2009. On this record, we cannot conclude appellant was without counsel during the thirty days following his conviction. Although appellant requested new counsel on March 9, his correspondence to the court gave no indication that White no longer represented him. Until March 20, the day appellant filed his motion for new trial, there is nothing in the record to refute the presumption that White continued to represent appellant. Counsel was appointed three days later. In addition, appellant was not deprived of an opportunity to file a motion for new trial. To the contrary, appellant's typed, verified motion was timely filed. Once appointed, counsel did not seek leave to amend the motion or otherwise alert the court as to any deficiencies in the motion. Therefore, we conclude appellant was neither denied counsel nor the opportunity to file a motion for new trial. B. Development of the Ineffective Assistance Claim.
Appellant also argues the trial court erred in not conducting a hearing to develop the record on his ineffective assistance claim. Generally, a claim of ineffective assistance of counsel requires a hearing on a motion for new trial to establish on the record that counsel's representation was so deficient as to overcome the presumption that counsel's conduct was reasonable and professional. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (stating ineffective assistance claim difficult to establish if evidentiary record not developed in hearing on motion for new trial). But appellant did not request a hearing on the motion for new trial. A trial court is not required to convene a hearing on a motion for new trial absent a request. Gallegos v. State, 76 S.W.3d 224, 228 (Tex. App.-Dallas 2002, pet. ref'd). Similarly, a reviewing court does not reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request for hearing was presented to it. See Rozzell v. State, 176 S.W.3d 228, 231 (Tex. Crim. App. 2005). Because appellant did not request a hearing, the trial court could not have abused its discretion in failing to hold one. C. Ineffective Assistance As a Matter of Law.
Paradoxically, appellant also argues the trial court erred in denying the motion for new trial without a hearing on the ineffective assistance of counsel claim because counsel's "misunderstanding of basic legal principles was sufficiently apparent on the record" as to demonstrate constitutional deficiency as a matter of law. The standard for testing claims of ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, appellant must prove (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 695; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, appellant must prove that his attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for his attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. Our review of counsel's representation is highly deferential. We indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We reject appellant's characterization of counsel's performance as constitutionally deficient as a matter of law. Appellant provides a laundry list of actions he claims demonstrate that his trial counsel was ineffective, many of which pertain to the issue appellant has withdrawn. Other claimed deficiencies are wholly unsupported by the record or involve actions that might reasonably be explained as trial strategy. When the record before us contains no explanation of trial counsel's actions, and we are not required to speculate. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Therefore, in light of the silent record, we conclude appellant has failed to rebut the presumption that trial counsel's decisions were reasonable. Thompson, 9 S.W.3d at 814; see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.) (concluding, in face of silent record, counsel's failure to object to inadmissible hearsay, among other things, not ineffective assistance). Appellant's third and fourth issues are overruled. Legal and Factual Sufficiency.
In his fifth issue, appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated robbery. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Then, we determine whether the evidence supporting the verdict is so weak that the verdict is "clearly wrong" and "manifestly unjust" or whether the verdict is "against the great weight and preponderance of the conflicting evidence." Watson, 204 S.W.3d at 414-15. Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). Appellant was convicted of aggravated robbery under the law of parties. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Tex. Penal Code Ann. § 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02 (2) (Vernon 2003).To establish the crime of aggravated robbery as alleged in the indictment, the state was required to prove that appellant or one of the parties, while in the course of committing robbery intentionally or knowingly threatened Thompson or placed him in fear of imminent bodily injury or death and used or exhibited a deadly weapon. See Tex. Penal Code Ann. § 29.02, 29.03(2) (Vernon 2003). Appellant asserts the evidence relied upon to convict him under the law of parties was insufficient because the evidence constituted inadmissible hearsay . Specifically, appellant complains about testimony elicited from a police detective that both Davis and George told him Mason was driving and knew about the robbery. The testimony about which appellant complains, however, was admitted without objection. Hearsay testimony admitted without objection has probative value and may be considered. See Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986). Appellant also claims there was no evidence Thompson was threatened or placed in fear of immediate bodily injury or death. It is well settled that to constitute robbery, there must be violence or intimidation of such nature that the injured party is put in fear. Cranford v. State, 377 S.W.2d 957, 958 (Tex. Crim. App. 1964). The victim's fear must arise from the conduct of the accused, rather than mere timidity of the victim. Id. at 959. The statute is satisfied where the victim reasonably believes he will be injured if he does not comply with the robber's demands. Id.; see also Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). Thus, our inquiry is whether the words and conduct of appellant or one of the parties were sufficient to place a reasonable person in Thompson's circumstances in fear of imminent bodily injury. See Welch v. State, 880 S.W.2d 225, 226-27 (Tex. App.-Austin 1994, no pet.); Williams v. State, 827 S.W.2d 614, 616 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). Thompson testified that he was accosted by two men as he left the convenience store. One of the men blocked his entry into his truck and demanded his wallet. The man displayed a gun half out of his pocket with the hammer cocked, and again demanded Thompson's wallet. Although at one point Thompson stated that it all happened so fast he did not get scared, he also testified to the contrary. In particular, Thompson stated that he was really worried when the robber hesitated for a few seconds after he had given him his wallet because he did not know if the robber was going to shoot him. In light of this evidence, the jury could reasonably infer the robber's overall conduct placed Thompson in fear of serious bodily injury or death. Therefore, we conclude the evidence was legally sufficient to establish beyond a reasonable doubt that appellant intentionally or knowingly threatened to cause or place Thompson in fear of death or serious bodily injury. From a factual sufficiency viewpoint, the State's evidence was not so obviously weak that the convictions were clearly wrong and unjust, nor was the evidence, when considering conflicting evidence, against the great weight and preponderance of the evidence. Thus, the evidence was legally and factually sufficient to support appellant's conviction for aggravated robbery. Appellant's fifth issue is overruled. III. Conclusion
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.