Opinion
No. 06-04-00055-CR
Date Submitted: November 5, 2004.
Date Decided: December 17, 2004. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 28827-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
When the scheduled date arrived to hear evidence on the State's motion to revoke Reyes Delangel Morales' community supervision, Morales' court-appointed attorney, Thomas Tibiletti, was unavailable. Tibiletti asked another attorney, Kevin Settle, to stand in as Morales' counsel, and Settle did so. Morales pled "true" to violating his community supervision by failing to report to his community supervision officer, failing to maintain a residence within Gregg County, failing to pay various fees, and failing to complete his community service work. The trial court then revoked Morales' community supervision and sentenced him to two years' confinement in a state jail facility. On appeal, Morales contends the trial court erred (1) by failing to inquire whether Morales objected to being represented by substitute counsel and (2) by failing to consider continuing Morales' community supervision in lieu of imprisonment. We affirm. Substitution of Counsel Was Harmless Error In his first point of error, Morales contends due process requires he be represented by "his" attorney and the trial court reversibly erred by failing to inquire of Morales whether he consented to the absence of his attorney of record at the revocation hearing. The Sixth Amendment guarantees the right to counsel to all indigent defendants accused of serious crimes and misdemeanors. U.S. CONST. amend VI; Gideon v. Wainwright, 372 U.S. 335, 344 (1963). "Although an indigent defendant does not have the right to counsel of his own choosing, once counsel is appointed, the trial judge is obliged to respect the attorney-client relationship created through the appointment." Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex.Crim.App. 1992) (orig. proceeding). "Once counsel has been validly appointed to represent an indigent defendant and the parties enter into an attorney-client relationship[,] it is no less inviolate than if counsel is retained." Stearnes v. Clinton, 780 S.W.2d 216, 221-22 (Tex.Crim.App. 1989) (orig. proceeding). Once the attorney-client relationship has been established, even if counsel has been appointed by the court, the trial court does not have plenary power to remove that attorney without sufficient cause. Id.; see also TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (Vernon Supp. 2004-2005) (attorney appointed shall continue representation until replaced by other counsel after "finding of good cause is entered"). The record before us reflects both Tibiletti and Settle met with Morales before the revocation hearing. All three discussed that Tibiletti would be unavailable for the scheduled hearing and that Settle was available to substitute as counsel for Morales. During the revocation hearing, Settle made a professional statement to the trial court, which is a part of the record, that after discussing the possible substitution, Morales consented to be represented by Settle at the revocation hearing. Morales did not object to Settle's representation at any time during the hearing, nor did Morales otherwise suggest to the trial court that he was unhappy with Settle's performance. Nonetheless, the trial court should not have permitted the substitution, given the status of the record in this case. Instead, the trial court should have taken the affirmative steps of (1) inquiring whether there existed independent good cause for the replacement of Tibiletti as Morales' court-appointed counsel (such as a real conflict of interest), and (2) determining whether Morales would consent to the withdrawal of his court-appointed attorney (Tibiletti). Such a proactive inquiry was especially important in this case because the record reveals Morales is not a citizen of the United States and speaks very little English. There is also nothing in the record to indicate Tibiletti had an ethical conflict in representing Morales; the only conflict was with Tibiletti's schedule. Yet the trial court did not conduct a hearing to see if the proposed substitution of counsel was justified. Accordingly, the lower court erred by allowing Morales to be represented by stand-in counsel at the revocation hearing without a finding, on the record, (1) that good cause existed to permit Tibiletti's withdrawal and (2) that Morales affirmatively consented to that withdrawal. Having found error, we must then determine whether the error caused reversible harm. See TEX. R. APP. P. 44.2(a). In this case, nothing in the record before us suggests the trial court's error harmed Morales or otherwise contributed to his conviction or punishment. Morales pled "true" to violating the terms of his community supervision agreement with the trial court. Morales also admitted that, shortly after his initial guilty plea, he fled to Mexico and was not recaptured until over two years later when police located him in McAllen, Texas. In the period during which he had absconded from Gregg County, Morales did not report his current location or status to his community supervision officer. In short, Morales satisfied none of the requirements of his community supervision. And nothing in the record before us suggests Morales was displeased with Settle's performance as substitute counsel or had any valid reason to be displeased with that performance. Accordingly, we conclude, beyond a reasonable doubt, that the trial court's error did not contribute to Morales' conviction or punishment. We overrule Morales' first issue. The Trial Court Considered Continuing Community Supervision In his second point of error, Morales contends the trial court erred by failing to consider continuing community supervision in lieu of imprisonment. In Hull v. State, 29 S.W.3d 602, 604-07 (Tex.App.-Houston [1st Dist.] 2000), vacated and remanded, 67 S.W.3d 215 (Tex.Crim.App. 2002), the First Court of Appeals held the trial court violated Hull's due process rights by revoking his community supervision for violating the terms of a "zero tolerance" brand of community supervision. On petition for discretionary review, the Texas Court of Criminal Appeals held Hull had failed to preserve the alleged error by not objecting to the "zero tolerance" conditions at the time he was placed on community supervision. Id. The record in the case now before us does not suggest Morales had been placed on a "zero tolerance" brand of community supervision akin to that in Hull. To the contrary, before receiving evidence on the State's motion to revoke community supervision, the trial court explained it had several options available to it if it found Morales had violated the community supervision agreement:
The Court: Upon your plea of true, I must find the accusations true. And when I do that, I've got some options. First is do nothing; that is, leave you on probation as you presently are.
The next option is to extend the length of probation for up to an additional one year or fine you up to a thousand dollars. And the final option is to revoke your probation and send you to a state jail facility for a period of not less than 180 actual calendar days, day for day nor more than two actual calendar years, day for day.
Do you understand those are the options that I have?
Morales: Yes.The trial court then heard evidence that, immediately after being placed on community supervision, Morales fled to Mexico and was not heard from again until two years later when he was arrested near McAllen, Texas, while working in construction. After all the evidence and before pronouncing sentence, the trial court stated,
The Court: I choose not to reward him for his absolute failure to comply with any term and condition of probation. I would rather house him in a state facility for two years than to have him going back and forth between Mexico and the United States and coming across the river any time he feels like he wants to. I agree with you, he was a poor candidate for probation.
Be that as it may, I do what I have to do, I revoke your probation and I assess your punishment two calendar years day for day confinement in a state jail facility, giving you credit for any time spent in jail in connection with this case.After closely reviewing the record in this case, we believe the trial court did consider the available options, but based on the evidence presented — especially Morales' admission that he chose to abscond to Mexico before even meeting with his community supervision officer to review the conditions of supervision — exercised its discretion to revoke Morales' supervision. From the record presented, we cannot say the trial court abused that discretion. We overrule Morales' points of error and affirm the trial court's judgment.
Morales had been placed on community supervision in November of 2001 for possessing cocaine in an amount of less than one gram, a state jail felony. See TEX. HEALTH SAFETY CODE ANN. § 481.115 (Vernon 2003).
See, e.g., Wheat v. United States, 486 U.S. 153 (1988) (affirming federal trial court's refusal to allow defendant to substitute retained attorney for court-appointed attorney when retained counsel would have had conflict of interest by virtue of having previously represented codefendants) (cited approvingly for federal standard in Stearnes, 780 S.W.2d at 222-23).
The record does not indicate Tibiletti ever filed a formal motion to withdraw as counsel of record.
We do not imply any requirement that a trial court recite that it is considering the full range of punishment options.