Opinion
No. 05-16-01424-CR
12-29-2017
KENNETH RHODES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1633732-V
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Whitehill
Opinion by Justice Brown
Kenneth Rhodes appeals his conviction for aggravated robbery. In a single issue, he contends the trial court abused its discretion in ignoring his pro se motion to dismiss his appointed counsel. We affirm.
The indictment in this case alleged that on or about May 27, 2016, appellant intentionally and knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of that property, threatened and placed Adrianna Perez in fear of imminent bodily injury and death, and appellant used or exhibited a deadly weapon, namely, scissors. Appellant certified he was without means to employ a lawyer and requested court-appointed counsel. The trial court appointed a lawyer on May 31, 2016. In a handwritten motion dated October 19, 2016, and filed stamped on October 28, 2016, appellant asked the trial court to dismiss his attorney. Appellant stated he had been scheduled to appear before the judge at least thirteen times. He asserted that his attorney repeatedly reset court dates without explanation and deliberately refused to allow him to appear before the judge. Appellant also stated that a bailiff "heard how disrespectful [the attorney] was with [appellant] in front of everyone." The motion is silent as to whether appellant wanted new counsel to be appointed or wanted to represent himself.
In addition, the record contains a letter from appellant addressed to the trial judge and to the State Bar of Texas, also file stamped October 28, 2016. In it, appellant complained that his appointed counsel was not properly representing him and had violated his civil rights in several ways, including "fast and speedy process," "using hostile and extremely vulgar and abusive language towards me," and "keeping me and my love ones uninformed of the development / progress / status of my case." Appellant asked that his attorney be removed from the case and asked for an "MHMR attorney."
On November 4, 2016, appellant signed various documents, including a judicial confession and a plea agreement indicating he wanted to waive a jury trial and enter an open plea of guilty. At a hearing on Friday, November 18, 2016, the trial judge asked appellant if he had understood everything he signed. Appellant indicated he had, but added, "I was requesting MHMR counsel. Am I not entitled to MHMR counsel?" The judge responded:
[Appointed counsel] is your lawyer. He has been appointed to represent you. There is no such thing as an MHMR counsel.
[Appointed counsel] is on the Dallas County felony wheel. He's got extraordinary experience, and he is qualified to represent you in this case.
If there is another lawyer that you're going to hire, I haven't heard about that, because there is no letter of representation in my file. Right now [appointed counsel] is your lawyer.
Appellant pleaded guilty. The State offered his judicial confession into evidence and called the complainant Perez as a witness. Perez testified about the offense, which appellant committed at the dollar store where she worked. During Perez's testimony, the State offered a video into evidence. Perez testified the video accurately depicted what happened at the dollar store. The court recessed the hearing until Monday.
When the hearing resumed, appellant called two witnesses, his girlfriend and the girlfriend's daughter. Both the girlfriend and her daughter testified that appellant is a good person. The girlfriend testified that appellant has struggled with mental health and substance abuse issues and needed some type of treatment. After their testimony, appellant wanted to address the judge without being subject to cross-examination. The court informed appellant that if he wished to testify, the State would be permitted to cross-examine him. Appellant decided to testify. He stated he did not remember committing the offense and asked the court for help with his substance abuse and mental health issues. The trial court found appellant guilty and assessed his punishment at fifteen years' confinement.
In this appeal, appellant complains the trial court erred in ignoring his motion to dismiss his appointed counsel. Appellant's true complaint is not that his motion was ignored; it is that it was not granted. He asserts the conflict between him and his appointed counsel was so great it resulted in a total lack of communication and prevented an adequate defense.
We note that generally, a defendant who enters a valid plea of guilty, with or without the benefit of a plea bargain, forfeits his right to appeal a claim of error when the judgment of guilt is rendered independent of, and is not supported by, the alleged error. Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000). The State has not asserted that appellant's guilty plea forfeits his complaint about his attorney. Accordingly, we do not resolve the appeal on this basis.
We review a trial court's ruling on a motion to dismiss appointed counsel for an abuse of discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). The defendant carries the burden of proving he is entitled to a change of counsel. Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985) (citing Malcolm v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982)). He must make the court aware of his dissatisfaction with counsel and substantiate his claim. Id. A criminal defendant is not entitled to appointed counsel of choice. Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991). Personality conflicts and disagreements concerning trial strategy are typically not valid grounds for dismissal. King, 29 S.W.3d at 566. A trial court has no duty to search for counsel agreeable to the defendant. Id.
Appellant had the burden to show he was entitled to a change in counsel, and he presented nothing to substantiate his claim. When given the opportunity to address the court, appellant mentioned the MHMR attorney, but did not express dissatisfaction with his counsel. There is nothing in the record to verify the claims in appellant's motion and letter. Appellant complains of the number of times the case was reset, but our record does not contain any evidence of this. We note that counsel was appointed on May 31, 2016, and appellant was sentenced about six months later. Most of appellant's allegations involve personality conflicts that are not valid grounds for dismissal.
Further, the record belies appellant's claim that he was denied an adequate defense. Appellant's court-appointed counsel provided a vigorous defense under the circumstances. Appellant was captured on video committing the crime. His appointed counsel had Perez acknowledge that appellant might have had something "mentally wrong with him." He brought witnesses to testify that appellant was a good person who struggled with mental health and substance abuse issues. Counsel argued that appellant be placed on probation so he could get needed help. The trial court did not abuse its discretion in failing to dismiss appointed counsel. We overrule appellant's issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b). 161424F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1633732-V.
Opinion delivered by Justice Brown, Justices Lang-Miers and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 29th day of December, 2017.