No. 05-09-01357-CR
Opinion Filed June 22, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-80315-09.
Before Justices MURPHY, FILLMORE, and MYERS.
Opinion By Justice MURPHY.
A jury found William Lonnie Calahan guilty of aggravated robbery, and the trial court assessed punishment, enhanced by prior felony convictions, at forty years in prison. Appellant contends the trial court erred by denying his request to change appointed counsel and by not inquiring into his competency; he also claims ineffective assistance of counsel. We affirm.
Background
Appellant was arrested on January 6, 2009 and charged with an aggravated robbery offense. The trial court found appellant indigent and appointed counsel to represent him. The record contains three letters counsel sent to appellant. In the first letter dated January 8, 2009, counsel informed appellant of the appointment and instructed appellant to write to him with any questions. Counsel also told appellant he would not file for an examining trial or a bond reduction. Counsel promised appellant he would "investigate [appellant's] case," "discuss all issues" with him, and visit appellant when he had information about the case. Counsel sent the second letter on February 10, 2009 in response to a letter from appellant. Counsel assured appellant he would "look for the best outcome" and communicate all offers from the State. He also acknowledged appellant's desire to meet in person and wrote he would visit appellant in "due time." In the third letter, dated March 11, 2009, counsel communicated the prosecutor's offer of forty years' imprisonment in exchange for a guilty plea. Counsel wrote that the "offer [was] based upon [appellant's] extensive criminal history and the violent nature of the alleged offense" and warned appellant he was in "serious trouble" because of his prior felony convictions. Appellant filed a pro se motion to dismiss on March 23, 2009, seeking to replace his court-appointed counsel. He asked that counsel be appointed who had no conflicts of interest or irreconcilable differences. Appellant specifically complained of counsel's decision not to file for an examining trial and about communicating with counsel by mail. Appellant asserted he needed information from counsel so he could make a decision on the State's offer. He did not request a hearing, and the record does not show the motion was presented to the trial court prior to the trial date. Several months later, on June 2, 2009, counsel filed various pre-trial motions and requests on appellant's behalf, including a motion for evidence favorable to the defendant, a request for notice of extraneous offenses, a motion for a list of the State's witnesses, and a motion for discovery and inspection of evidence. On September 15, 2009, appellant sent counsel another letter to "enlighten" him. Appellant cited counsel's decision not to file for an examining trial and his deliberate failure to file any pre-trial motions, claiming he had "a conflict of interest towards [counsel's] substandard performance." And because he had not seen a copy of the police report or the probable cause affidavit, appellant asserted counsel was "NOT working in [appellant's] best interest" and that counsel was "working more favorable towards the State than [appellant's] defense." Appellant asked counsel to withdraw as his attorney due to counsel's "lack of concern" and "attempt to sustain a conviction for the State." That same day, appellant also sent a letter to the State Bar of Texas, alleging he was being "subjected to ineffective assistance of counsel, prosecutorial misconduct, and judicial misconduct" and asking that a "grievances complaint application" be sent to him. Shortly thereafter, appellant filed a series of pro se pre-trial motions, including a motion to suppress evidence, for discovery and inspection, to quash the indictment, and for a speedy trial. Appellant also filed a second motion seeking to dismiss and replace his appointed counsel and generally asserting counsel's neglect and refusal "to give his EFFECTIVE ASSISTANCE of counsel." On the morning of trial, October 28, 2009, the trial court conducted a hearing on appellant's request to dismiss appointed counsel. Appellant told the trial court the first time he saw his appointed counsel was over two months after his arrest, and he complained he did not talk to counsel again until the Friday before trial. Appellant also complained (1) of counsel's decision not to file for an examining trial or for a bond reduction, (2) that he was not aware of the pre-trial motions filed on his behalf, and (3) that counsel was unprepared because he had just received "some statements" from the State. Appellant told the court he felt his counsel was "not really trying to help [him]" and that if appellant proceeded to trial with him, appellant would "automatically" receive a forty-year sentence. Counsel responded that he went to talk to appellant when he received discovery. Counsel expressed his belief he had spent enough time with appellant to learn about and prepare a position on the case. He also told the court he had access to the State's file and was confident in his abilities. Counsel acknowledged he had just received "additional discovery" from the State, which consisted of appellant's videotaped statement, a videotape of the photo lineup, and pictures from the crime scene, but counsel assured the trial court he had reviewed the materials and they did not put him in a position to tell the trial court he could not proceed. Counsel admitted he did not visit appellant regularly but stated he responded to appellant's letters. Counsel also advised the trial court of his difficulty communicating with appellant. He specifically described problems communicating issues such as whether to have a judge or jury assess punishment in the event appellant was found guilty, the advantages and disadvantages of testifying, and whether appellant wanted to waive a jury trial. Counsel also reported difficulty reviewing the evidence with appellant, including the witness statements and appellant's videotaped statement. The trial court denied appellant's motion, finding "no reason" to dismiss or replace appointed counsel. The trial court then recessed the proceedings to give counsel and appellant time to confer and resolve the specified issues. After conferring with appellant, counsel informed the court he was ready to proceed but acknowledged he was still unable to communicate with appellant. Counsel said the conflict was based on appellant's assertions that he was "not doing enough" and "not working hard" for appellant. Counsel further advised that appellant's use of the "N" word kept them from communicating effectively and that appellant would not listen or talk to him. The trial court told appellant that his appointed counsel was "a good lawyer" and advised appellant to participate in the proceedings; the trial court warned appellant was putting himself in "great jeopardy" if he did not talk to his lawyer. While the trial court agreed the communication problems hampered counsel's ability to advise appellant, the trial court further stated: "if [appellant] is not communicating with you, he's doing that by his choice. And you cannot create your own error." Appellant responded that he did not think counsel would represent him to the best of his ability and complained "the stage [had] already been set," stating he "knew what [they were] trying to do." Although counsel told the court he would proceed, counsel said he was "not comfortable" and was concerned about communicating with appellant. The case then proceeded to jury selection. At the conclusion of the State's case, appellant stated for the record that he did not want to testify in the case and based on that decision, the defense would rest its case without offering any evidence. Thereafter, the following exchange occurred: [Counsel]: And at least from this point, from the starting of trial yesterday, from jury examination up until now, you have at least become somewhat satisfied with my abilities in the courtroom; is that correct?
[Appellant]: Yes, sir.
[Counsel]: And you do see that I have worked hard for you and hustled for you on this case, correct?
[Appellant]: Yes, sir.
[Counsel]: And I can only do so much and can't make a witness change their testimony, but I proceeded in a fashion that you feel was appropriate in this case, correct?
[Appellant]: Yes, sir.
The trial court instructed the jury on aggravated robbery, as charged in the indictment, as well as the lesser included offenses of robbery and theft. The jury found appellant guilty of aggravated robbery. After appellant pleaded true to multiple enhancement paragraphs, the trial court assessed punishment at forty years' imprisonment. The trial court then permitted counsel to withdraw and appointed new counsel for purposes of appeal. Removal of Appointed Counsel
In his first issue, appellant complains of the trial court's denial of his motion to dismiss and replace his appointed counsel. We examine the trial court's ruling for an abuse of discretion. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). A defendant does not have the right to his own choice of appointed counsel. See Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977). Nor is a trial court required to search for counsel agreeable to the defendant. King, 29 S.W.3d at 566. There are certain circumstances, however, in which a defendant may, upon a proper showing, be entitled to a change of counsel. See Garner v. State, 864 S.W.2d 92, 98 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). For example, a defendant is entitled to new counsel upon a proper showing of appointed counsel's actual conflict of interest. See id. at 98-99; Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (recognizing conflict of interest may warrant court's exercise of discretion to appoint substitute counsel). An actual conflict of interest exists if counsel is required to make a choice between advancing his client's interests in a fair trial or advancing other interests to the detriment of his client's interest. Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). The defendant bears the burden of proving he is entitled to a change of counsel. See Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982) (citing Webb v. State, 533 S.W.2d 780, 784 n. 3 (Tex. Crim. App. 1976)). Vague expressions of dissatisfaction are generally insufficient to carry the defendant's burden. See Maes v. State, 275 S.W.3d 68, 71-72 (Tex. App.-San Antonio 2008, no pet.). In addition, "personality conflicts and disagreements concerning trial strategy are typically not valid grounds" for the replacement of appointed counsel. King, 29 S.W.3d at 566; see also Carroll, 176 S.W.3d at 256-58 (general allegations of communication breakdown and lack of cooperation did not require substitution of counsel). Appellant contends the trial court should have granted his request for a change of counsel because he proved "his attorney was not affording him proper representation." Specifically, appellant asserts "there was virtually no communication between Appellant and his counsel leading up to trial." He claims that because of the "lack of communication," he was not reasonably informed about the status of his case and did not receive sufficient information to make informed decisions or to participate in decisions. Further, appellant did not think counsel was "really trying to help [him]" because counsel did not file for an examining trial or bond reduction, communicated with appellant by mail, and did not share such things as discovery received from the State or the fact that counsel had filed pre-trial motions. To support his argument, appellant relies on counsel's statements to the trial court about the communications problems-appellant was refusing to talk to him and would not listen to him because appellant was "not pleased" with his representation. These problems may show a personality conflict or a disagreement about trial strategy, but neither of the problems will support a change of counsel. See King, 29 S.W.3d at 566. Despite appellant's contentions counsel was "not doing enough" or "working hard" for him, the record demonstrates consistent, significant activity by trial counsel on appellant's behalf. For example, promptly after receiving his appointment, counsel sent appellant a letter and followed up with two additional letters. Counsel investigated the case, sought and received discovery from the State, and personally met with appellant to learn about the case. In addition, counsel had reviewed the State's file and "tried to talk [the prosecutor] down" from the State's offer of forty years. Counsel also filed numerous pre-trial motions on appellant's behalf even after appellant sought to dismiss him. Appellant offered no evidence to rebut counsel's assertions he was prepared to go to trial and was familiar with the facts of the case. Further, while appellant voiced strong complaints about counsel during the pre-trial hearing, nothing in the record suggests appellant was dissatisfied with counsel's performance at trial. Appellant in fact acknowledged counsel had "hustled" for him during the trial and proceeded in a manner that appellant felt was appropriate. Appellant also asserted generally in his written motions and letter he had a conflict of interest with his appointed counsel. The record does not, however, suggest counsel was faced with a choice between advancing appellant's interests and someone else's interests. See Monreal, 947 S.W.2d at 564. Although the record contains appellant's letter to the State Bar of Texas asking for a "grievances complaint application," appellant never mentioned a grievance proceeding to the trial court and the record contains no copy of a grievance or any indication appellant ever filed a grievance. Cf. Garner, 864 S.W.2d at 99 (disciplinary proceeding brought by client against counsel creates actual conflict of interest). Appellant's general assertion of a conflict is insufficient to satisfy his burden, and he has failed to establish counsel had an actual conflict of interest. Having determined none of appellant's complaints about counsel rose to the level that would require the court to make a change, we conclude the trial court did not abuse its discretion in denying appellant's motion to dismiss and replace appointed counsel. We overrule appellant's first issue. Competency to Stand Trial
Appellant asserts in his second issue that the evidence suggests he was incompetent to stand trial and the trial court therefore erred when it failed to conduct sua sponte a competency hearing. We review a trial court's decision not to conduct a competency inquiry for an abuse of discretion. See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009). Subjecting a legally incompetent person to trial violates his Texas and federal due process rights. See Drope v. Missouri, 420 U.S. 162, 172 (1975); McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003). A defendant is incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational, as well as factual, understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1)-(2) (West 2006); see also Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 904 (2009). If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the trial court, the court is required on its own motion to suggest that the defendant may be incompetent. Tex. Code Crim. Proc. Ann. art. 46B.004(b). The court then must determine by informal inquiry whether there is some evidence from any source that would support a finding the defendant may be incompetent to stand trial. Id. at 46B.004(c); Fuller, 253 S.W.3d at 228. A competency hearing is not required, however, unless the evidence is sufficient to create a bona fide doubt as to whether the defendant is legally competent. Montoya, 291 S.W.3d at 425. Evidence is usually sufficient to create a bona fide doubt if it shows "'recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.'" Fuller, 253 S.W.3d at 228 (quoting McDaniel, 98 S.W.3d at 710). A bona fide doubt about a defendant's competency may arise from the trial court's observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown v. State, 960 S.W.2d 772, 774 (Tex. App.-Dallas 1997, pet. ref'd). Appellant argues the trial court should have conducted an inquiry into his mental competency based on evidence presented at the hearing on appellant's motion to dismiss counsel that appellant was unable to communicate with his trial counsel and participate in the trial proceedings. He also asserts his competency was "called into question" when he (1) got into a "heated argument" with counsel and called him the "N" word, (2) stated his belief "there was a conspiracy against him" such that he was automatically going to receive a forty-year sentence, and (3) "resigned himself to lose his trial." This evidence, however, does not sufficiently raise an issue of appellant's incompetency under the applicable standards. The record contains no evidence appellant suffered from any mental illness or retardation. See Fuller, 253 S.W.3d at 228. And none of the actions appellant cites were "truly bizarre" or showed an inability to consult with counsel or understand the proceedings. Id. To the contrary, many of appellant's actions suggest he was competent. For example, appellant's belief he would get a forty-year sentence and conclusion that he would lose at trial shows he understood the significance of the evidence against him and the potential punishment he faced based on his prior convictions. Appellant also filed a series of pro se pre-trial motions, including two motions to dismiss and replace appointed counsel. This shows he understood the legal system and the procedures for having court-appointed counsel removed. He also wrote lucid and complete letters to the judge and counsel explaining his dissatisfaction with counsel's representation. At the hearing, appellant was able to articulate his specific complaints, and he was responsive to questions from the court. Although he got into a "heated" argument with counsel and used the "N" word, this behavior is not indicative of an incompetent defendant, but rather one who dislikes his appointed counsel. Reed v. State, 112 S.W.3d 706, 711 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) ("Conflicts with defense counsel do not necessarily constitute incompetency."). The trial court in fact commented at one point that appellant "appear[ed] to be an intelligent man" and appellant said he understood what the judge was telling him. After the State rested its case, appellant also was able to answer questions for the record about his decision not to testify and agreed he understood the advantages and disadvantages of making this decision. Further, the record shows counsel's difficulties communicating with appellant arose because appellant resisted communicating with counsel, not because appellant was unable to communicate. During the pre-trial hearing, counsel explained appellant was "not pleased" with him and that their problems communicating were based on appellant's stance that he did not want to hear what counsel had to say or to talk to his counsel. The trial court observed and commented that appellant's refusal to communicate with counsel was by choice. At no time did counsel, the prosecutor, or the court, all of whom observed appellant, question appellant's ability to understand the proceedings. See Montoya, 291 S.W.3d at 426. Rather, the record clearly shows appellant understood the proceedings but chose not to cooperate. See Reed, 112 S.W.3d at 711-12 (general failure to cooperate not probative of competence to stand trial). Accordingly, we conclude the trial court did not abuse its discretion when it did not conduct an informal inquiry into appellant's competency to stand trial. We overrule appellant's second issue. Ineffective Assistance of Counsel
In his third issue, appellant complains he received ineffective assistance of counsel. Claims of ineffective assistance of counsel are evaluated under the Supreme Court's two-part test in Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and require a showing of both deficient performance and prejudice. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010). Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We judge counsel's performance not by isolating one portion of counsel's representation, but by considering the totality of representation. Strickland, 466 U.S. at 670; Thompson, 9 S.W.3d at 813. We strongly presume counsel's conduct falls within the wide range of reasonable professional assistance and counsel's actions were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Thus, any allegation of ineffectiveness must be "firmly founded in the record," and the record "must itself affirmatively demonstrate" the meritorious nature of the claim. Bone, 77 S.W.3d at 833 (citing Thompson, 9 S.W.3d at 813). Appellant contends he did not receive effective assistance of counsel because his counsel: (1) did not adequately prepare for trial; (2) did not adequately prepare appellant to aid counsel at trial; (3) failed to inform appellant regarding trial strategy and trial preparations; (4) did not receive full discovery from the State until the Friday before trial; and (5) never went over the evidence with appellant or inform appellant of his rights. In response, the State argues appellant failed to meet his burden. The record shows counsel investigated the facts and circumstances surrounding the incident for which appellant was charged, promptly received discovery on the case, reviewed the State's file, and filed numerous pre-trial motions to further the defense. Counsel testified the prosecutor complied with his requests for discovery, witness lists, extraneous-offense evidence, and favorable evidence and continued to update him on those matters. Although counsel received additional discovery just before trial, the record also shows counsel reviewed the new discovery, and counsel told the trial court he was ready to proceed to trial. Counsel's preparation for trial and knowledge of the facts was demonstrated in his cross-examination of the State's witnesses, which showed an attempt to create doubt that appellant used a deadly weapon during the commission of the offense. In his closing argument, he focused on facts that could lead to the conclusion if appellant was guilty, he was guilty only of the lesser offense of theft. The record also demonstrates counsel conferred with appellant before trial and met with appellant after receiving discovery and again the Friday before trial to go over the new discovery counsel had received. Counsel also communicated with appellant by mail and responded to appellant's letters. Any claimed problems reviewing the evidence with appellant or informing appellant of his rights arose due to appellant's refusal to cooperate and communicate with counsel. Finally, despite his complaints about counsel's pre-trial performance, appellant acknowledged he was satisfied with counsel's performance at trial, that counsel worked hard for appellant on the case, and he believed counsel proceeded in an appropriate fashion. Considering the totality of the representation, we conclude appellant has not established counsel's performance was deficient. Strickland, 466 U.S. at 687-88; Williams, 301 S.W.3d at 687. Accordingly, we overrule appellant's third issue. Having resolved appellant's three issues against him, we affirm the trial court's judgment.