Opinion
No. 05-08-01570-CR
Opinion issued July 20, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F07-40737-RI.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
A jury convicted appellant Vincent Bernard Rone of burglary of a habitation, and the trial court assessed his punishment at eighteen years' confinement. Appellant raises two issues in this Court, complaining that (1) the trial court failed to hold a hearing on appellant's pro se motion to dismiss his appointed counsel, and (2) the trial court prevented appellant from employing counsel of his own choosing by denying appellant's motion for continuance. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellant Procedure 47.4. We affirm the trial court's judgment. Appellant's indictment for burglary of a habitation was filed on September 13, 2007. Within the week, appellant sought appointed counsel, and the trial court appointed George Conkey to represent him. On April 30, 2008, appellant filed a handwritten pro se motion, titled Motion to Withdraw as Counsel. The motion stated, in its entirety:
To The Honorable Judge of this Court[:] George Conkey name attorney for Vincent Rone name defendant in this cause moves this court to enter an order permitting George Conkey him to withdraw as counsel of record.
Ability to exercise her [sic] best professional judgment and the defendant's right to the effective assistance of counsel. But there has been a conflict of interest between counsel and defendant.
The granting of this motion will not have a meteral [sic] adverse effect on the interests of the defendant and will not result in an unreasonable delay in the proceedings.
Wherefore move [sic] prays the court grant this motion and orders that George Conkey he be released as counsel of record in this cause.No evidence was attached to the motion. Appellant did not request a hearing on the motion or follow up on the motion in any manner. Conkey continued to represent appellant; he prepared appellant's pretrial filings made October 24, 2008. Appellant's case was set first on the trial docket for Monday, November 10, 2008. Conkey informed the prosecutor that he was prepared to begin trial on that date. However, on November 1, 2008, Macy Jaggers was retained to represent appellant. Jaggers filed appellant's Motion for Substitution of Counsel and Motion for Continuance on Friday, November 7, 2008; the motion was heard the same day. The trial court denied the motion, and trial began the following Monday with Conkey representing appellant. In his first issue, appellant contends the trial court erred by failing to set his pro se motion to dismiss counsel for hearing. We disagree. Appellant's motion did not include a request for a hearing. A trial court is not obliged to conduct a hearing merely because a defendant expresses dissatisfaction with his court-appointed counsel; there is no error if the defendant never requests a hearing on the matter. Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim. App. 1982) (citing Stovall v. State, 480 S.W.2d 223 (Tex. Crim. App. 1972)). The defendant carries the burden of proving that he is entitled to new counsel. Malcom, 628 S.W.2d at 791. Thus it is his responsibility to make the court aware of his dissatisfaction with counsel, to state the grounds for the dissatisfaction, to substantiate his claim, and-if he desires one-to request a hearing. See Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985). In appellant's case, his motion made only a vague allegation that he and Conkey had a conflict of interest. He did not explain the conflict, offer any evidence of the conflict, or request a hearing. Under these circumstances, the trial court did not err by failing to set a hearing sua sponte. We overrule appellant's first issue. In his second issue, appellant contends the trial court erroneously prevented him from employing counsel of his own choosing when it denied appellant's motion for continuance. Appellant relies on the Sixth Amendment's right to counsel of his own choosing. See Wheat v. U.S., 486 U.S. 153, 158 (1988). However, that right is not absolute. Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (right to counsel of one's own choice is neither absolute nor unqualified). The right must be balanced against the trial court's need for prompt, orderly, effective, and efficient administration of justice. Emerson v. State, 756 S.W.2d 364, 369 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd). Moreover, the defendant's right to select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Ex parte Davis, 818 S.W.2d 64, 66 (Tex. Crim. App. 1991); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). Thus, the defendant may not wait until the eve of trial to demand different counsel or to request counsel be dismissed so that he may retain other counsel. Webb, 533 S.W.2d at 784. Again, the defendant carries the burden of proving that he is entitled to a change of counsel. Malcom, 628 S.W.2d at 791. The Texas Court of Criminal Appeals has identified a number of factors that can be weighed in determining whether a continuance was properly denied in this situation:
(1) the length of the delay requested; (2) whether other continuances were requested and whether they were denied or granted; (3) the length of time in which the accused's counsel had to prepare for trial; (4) whether another competent attorney was prepared to try the case; (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court; (6) whether the delay was for legitimate or contrived reasons; (7) whether the case was complex or simple; (8) whether the denial of the motion resulted in some identifiable harm to the defendant; and (9) the quality of the legal representation actually provided.Windham, 634 S.W.2d at 720. We will not reverse a trial court's decision to deny a motion for continuance unless the court has abused its discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). We conclude the majority of relevant Windham factors clearly supports the trial court's ruling. Appellant requested an open-ended continuance. The motion asserted not only that Jaggers could not be ready for trial the following Monday, but that she needed time to investigate the case and consult with appellant to determine whether a jury trial was in his best interest. Moreover, if Jaggers did recommend taking the case to trial, appellant would require an unspecified amount of additional time to pay the fee owed under his retainer agreement. Although Jaggers would have had only a matter of days to prepare for trial, Conkey stood ready to try the case; appellant does not contend Conkey's representation was ineffective. At the hearing on the motion, the prosecutor explained she had already subpoenaed witnesses, who had made arrangements to miss work and attend trial the following week. The prosecutor also stated that if the case were not tried at this setting, she could not try it again for six months because of her pending maternity leave. Perhaps most important in this case, appellant has never identified a specific reason for seeking to change counsel. The "conflict of interest" has never been explained, and appellant has never identified any harm he suffered because of the denial of the continuance. The trial court could certainly have balanced these factors, especially in light of the impending trial setting, and concluded a continuance would be inappropriate. We discern no abuse of discretion in the court's ruling. We overrule appellant's second issue. We affirm the trial court's judgment.
It appears appellant was employing a form meant for an attorney requesting permission to withdraw, rather than one for a client seeking to dismiss appointed counsel. We will treat the motion as a motion to dismiss appellant's appointed counsel.