Opinion
Nos. 05-06-00535-CR, 05-06-00536-CR, 05-06-00537-CR
Opinion issued March 20, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 401-81972-05, 401-81973-05, 401-82655-05.
Before Justices MORRIS, LANG, and LANG-MIERS.
MEMORANDUM OPINION
In this appeal, Eldon Lee Skaggs challenges his convictions for aggravated sexual assault, aggravated kidnapping, and five counts of sexual assault of a child. He complains in two issues that the trial court violated his right to self-representation and erroneously denied his motion to appoint substitute counsel. We affirm the trial court's judgments. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. Three days before his trial began, appellant filed with the trial court a "motion to dismiss and replace court appointed counsel." The motion did not allege any particular facts, and it was not supported by an affidavit or evidence. On the day of jury selection, appellant stated to the trial judge, "Your Honor, I come before this court to petition you to remove my court-appointed attorney." The trial judge replied, "That's not going to happen. . . . We're going to trial today." After the jury found appellant guilty of all the charged offenses, appellant commented, "[L]et the record show that I want to file a verbal — for a new trial and . . . Strickland versus Washington." Appellant asserted that he had "an ineffective counsel." He complained the trial court would not let him "get rid of" trial counsel. Then appellant said, "[C]an this be on the record that I want to represent myself? I have that right." The trial judge noted, "Well for you to be represented by a lawyer who has criminal defense experience and has been licensed to practice law in the state for a whole lot of years, and has appeared in the courts of this and many other courts in numerous criminal matters, as he's exhibiting himself so far, at this time I haven't seen anything that remotely looks like ineffective assistance." The judge continued,
. . . I'm watching his performance in this courtroom. Among other things, . . . he's moved to have people struck for cause, and he's developed challenges for cause on voir dire. He's made objections during the course of this trial and kept things out. He has advised you on more than one occasion, because I've watched him converse with you at counsel table on several occasions, during the course of this trial. He made a final argument that, based on the evidence, was an appropriate final argument. He has done his best to try to minimize your exposure, best I can tell. He can't change the facts.Appellant alleged he had written to his attorney twice, requesting the police report in the case, his criminal background, and "major parts" of his case. He claimed he called the attorney seven times and was hung up on each time. He complained he had asked the attorney to subpoena people for his trial. He disparaged his attorney's tactics during jury selection. And he complained that his attorney told him statements from the examining trial would be irrelevant in his case. He stated, "Anything I want to bring up, he says is irrelevant, Your Honor." Appellant acknowledged that the attorney had communicated a plea offer of thirty-five years from the State. When questioned about his level of education, appellant stated that he had not completed high school and that they "passed [him] to the eighth grade." He admitted he had not studied the Texas Rules of Criminal Procedure or the rules of evidence. He admitted he did not know how to cross-examine a witness, object to evidence, or present evidence. He had never represented himself in a criminal trial. He contended his lawyer was "supposed to object to everything." The trial judge commented, "I don't believe that you have the ability to adequately represent yourself, Mr. Skaggs, such that your rights would be protected, such that you would know what arguments to make, what objections to make." Appellant stated this observation was "[u]nderstandable." The court then ruled appellant's appointed attorney would continue to represent him until the end of the punishment phase of trial. In his first issue, appellant complains the trial court violated his Sixth Amendment right to self-representation. A defendant who wishes to exercise his right to self-representation must assert the right in a timely manner, "namely, before the jury is impaneled." McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App. 1997). Here, appellant did not assert his right to self-representation until the punishment phase of trial. Because appellant's request was not timely, the trial court did not err in denying it. We resolve his first issue against him. In his second issue, appellant contends the trial court erroneously denied his motion to appoint substitute counsel. We review a trial court's ruling on a motion to substitute counsel under an abuse of discretion standard. See Carroll v. State, 176 S.W.3d 249, 256 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). The right to counsel may not be manipulated to obstruct the judicial process. In addition, personality conflicts and disagreements about trial strategy are not typically valid grounds for withdrawal. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). The trial court need not "search for counsel agreeable to the defendant." Id. It the defendant's burden to prove that he is entitled to a change of counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982). In this case, appellant presented scant evidence to the court supporting his motion to substitute counsel. Moreover, the record demonstrates that appellant's court-appointed attorney provided a "competent and vigorous defense." Id. at 792. Based on the record before us, we conclude appellant was not harmed by the trial court's denial of his motion to substitute counsel. See id.; Reddic v. State, 976 S.W.2d 281, 283 (Tex.App.-Corpus Christi 1998, pet. ref'd). We resolve appellant's second issue against him. We affirm the trial court's judgments.