Opinion
No. 04-16-00391-CR
07-05-2017
Robert Carlos DEL CID, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR2819
Honorable Steve Hilbig, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
Robert Carlos Del Cid appeals his murder conviction and resulting sentence of life imprisonment. On appeal, he argues that he was denied the right to retained counsel of his choice and that he was denied the effective assistance of counsel at trial. We affirm the judgment of the trial court.
BACKGROUND
On July 2, 2014, William O'Neill was delivering pizza at an apartment complex. O'Neill left his car running during the delivery. Del Cid, who was walking in the parking lot with a friend, took O'Neill's car and ran over O'Neill, killing him. Del Cid was charged with capital murder in Cause No. 2014CR8889. Attorney John Economidy was appointed to represent Del Cid on July 11, 2014.
The order of appointment is not included in the record, but the trial court noted at the June 10, 2016 hearing that the appointment was made on this date. Also, the record does not include the order appointing attorney Timothy Molina.
On March 24, 2016, the capital murder charge was dismissed and the case was re-indicted as a felony murder in Cause No. 2016CR2819. On May 31, 2016 and June 3, 2016, De Cid filed two separate motions to dismiss appointed trial counsel John Economidy and Timothy Molina. On June 10, 2016, Theresa Connolly, who had been retained by Del Cid the previous day, filed the defense's first motion for continuance and motion to substitute attorney. A hearing was held on the motions on June 10, 2016. Del Cid testified that the relationship with his appointed counsel had materially broken down. In support, the defense introduced into evidence a letter written by Economidy and addressed to Del Cid advising Del Cid to "shape up" his act before prosecutors begin a "feeding frenzy" against him and warning him that by attacking his attorney, "the attorney can reveal privileged and confidential conversations with you to defend himself." Del Cid was upset that Economidy had advised a court-appointed psychologist who had evaluated Del Cid not to provide a copy of the report to Del Cid. Del Cid threatened to report the psychologist for not giving him a copy of the report; the defense then paid for an attorney to represent the psychologist in anticipation of the potential ethics investigation.
The State reported that it was ready to proceed to trial the following Monday, and that a material witness was scheduled to fly in from out of state on Monday afternoon; other witnesses were scheduled to drive in. At the conclusion of the hearing, the trial court denied both motions filed by Connolly, but treated the motion to substitute as a notice of appearance by Connolly and entered her appearance. The trial court reminded the parties that the case was set for trial the following Monday, June 13, 2016.
The case proceeded to trial on June 13, 2016. The jury found Del Cid guilty of murder as charged in the indictment and assessed punishment at life imprisonment.
RIGHT TO CHOICE OF RETAINED COUNSEL
In his first issue, Del Cid contends the trial court violated his right to representation by retained counsel of his choice when it denied his motion to substitute retained counsel and dismiss appointed counsel, as well as his motion for continuance. In his second issue, he argues the trial court exceeded its authority under article 26.04 of the Code of Criminal Procedure in refusing to dismiss appointed counsel once Connolly was retained. See TEX. CODE CRIM. PROC. ANN. art. 26.04 (West Supp. 2016).
Standard of Review. A trial court's unreasonable or arbitrary interference with a defendant's right to choose counsel amounts to a violation of the defendant's Sixth Amendment rights. Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003). As long as the trial court's ruling falls within the "zone of reasonable disagreement," the trial court does not abuse its discretion and we will uphold the ruling. Id. at 839; Hobbs v. State, 359 S.W.3d 919, 926 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
"A complete denial of the constitutional right to trial counsel" is a structural error subject to automatic reversal. Fernandez v. State, 283 S.W.3d 25, 31 (Tex. App.—San Antonio 2009, no pet.); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997). In this case, retained counsel was permitted to represent Del Cid at trial; nevertheless, Del Cid contends he was harmed because Economidy and Molina remained on the case. Accordingly, because the alleged error does not amount to a complete denial of counsel, it does not qualify as structural error. See Roberts v. State, 220 S.W.3d 521, 527 (Tex. Crim. App. 2007); Fernandez, 283 S.W.3d at 31. Therefore, under Rule 44.2(a), we will only reverse the trial court's judgment if we determine beyond a reasonable doubt that the alleged error contributed to Del Cid's conviction or punishment. TEX. R. APP. P. 44.2(a); Villarreal v. State, No. 04-13-00553-CR, 2015 WL 1939284, at *3 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op., not designated for publication).
Right to Counsel. A defendant's right to have assistance of counsel during a criminal proceeding is guaranteed by both the Texas and United States Constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp. 2016) ("A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding."). The right to the assistance of counsel includes the defendant's right to obtain that assistance from retained counsel of his choosing. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Gonzalez, 117 S.W.3d at 836-37; see also Powell v. Alabama, 287 U.S. 45, 53 (1932) ("It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice."); Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981) (stating that right to assistance of counsel, "of course, includes freedom of choice in the selection of counsel by the accused").
However, the right to obtain counsel of one's own choice is neither unqualified nor absolute. United States v. Barrentine, 591 F.2d 1069, 1075 (5th Cir. 1979); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978). "Among other things, a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness and the demands of its calendar." Scales v. State, No. 04-12-00435-CR, 2014 WL 667506, at *7 (Tex. App.—San Antonio Feb. 19, 2014, pet. ref'd) (mem. op., not designated for publication) (citing Gonzalez-Lopez, 548 U.S. at 151-52); Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982). "Trial judges necessarily require a great deal of latitude in scheduling trials . . . . Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).
Article 26.04. Article 26.04 provides that the judges of the district courts trying criminal cases by local rule shall adopt and publish written countywide procedures for timely and fairly appointing counsel for an indigent defendant in the county who is arrested for, charged with, or taking an appeal from a conviction of a misdemeanor or a felony. TEX. CODE CRIM. PROC. ANN. art. 26.04(a) (West Supp. 2016). Article 26.04(p) provides that "[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010) (quoting TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2016)). Del Cid argues that a material change in his financial circumstances occurred when he retained Connolly (i.e., he was no longer indigent), and thus the trial court was not authorized to appoint counsel under article 26.04 and erred in denying his motion to substitute counsel.
Article 26.04(c) provides: "Whenever a court . . . determines . . . that a defendant charged with . . . a felony or a misdemeanor punishable by confinement is indigent or that the interests of justice require representation of a defendant in the proceeding, the court . . . shall appoint one or more practicing attorneys to represent the defendant . . . ." TEX. CRIM. PROC. CODE ANN. art. 26.04(c) (West Supp. 2016).
Article 26.04(p) provides: "A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendant's counsel, or the attorney representing the state may move for reconsideration of the determination." TEX. CRIM. PROC. CODE ANN. art. 26.04(p) (West Supp. 2016).
Analysis. Del Cid's attorney of choice, Connolly, was present during trial and had the opportunity to participate during all phases of trial, from voir dire through punishment. Thus, the purpose of the Sixth Amendment and of Article I, section 10 of the Texas Constitution was met, and Del Cid received effective representation by an attorney of his choice. See Gonzalez, 117 S.W.3d at 836. In any event, the record does not reflect, and Del Cid does not point us to any evidence, that he was actually prejudiced or harmed by appointed counsel remaining on the case. Because he has failed to demonstrate harm, we cannot conclude that, even assuming there was error, reversal is warranted.
Del Cid's argument regarding article 26.04 is equally unavailing. The purpose of article 26.04 is to ensure indigent defendants who cannot afford to retain counsel are protected in the "interests of justice," and nothing in the statute mandates that appointed counsel be dismissed once counsel is retained. TEX. CRIM. PROC. CODE ANN. art. 26.04(c). We therefore conclude the trial court did not deny Del Cid his right to retained counsel of his choice, and overrule his first two issues. See GonzalezLopez, 548 U.S. at 144; Gonzalez, 117 S.W.3d at 836.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, Del Cid argues that he was denied the effective assistance of counsel at trial. The United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense." U.S. CONST. amend. VI. To prevail on his claim, Del Cid must first show that his counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Specifically, Del Cid must prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. Second, Del Cid must show that this deficient performance prejudiced his defense. Id. Del Cid "must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different." Id. (emphasis added). A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Id. Failure to establish either deficient performance or prejudice will defeat a claim of ineffectiveness. Strickland, 466 U.S. at 893.
Our judicial scrutiny of trial counsel's performance must be highly deferential. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). We also keep in mind that generally on direct appeal the record will be undeveloped and will not provide an explanation for trial counsel's alleged failures or omissions. Id. at 110-11; see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ("Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."). Moreover, where trial counsel has not had an opportunity to explain his conduct, we should not find deficient performance unless the challenged conduct is "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
In his motion to dismiss court appointed counsel, Del Cid alleged the following thirteen ineffective acts and omissions on the part of appointed counsel, particularly Economidy:
1. Counsel refused to respond to legal questions about Del Cid's case;
2. Counsel was too busy to properly handle Del Cid's case;
3. Counsel threatened to withdraw because Del Cid required he update family members about the progress of his case;
4. Counsel refused to provide a copy of Del Cid's psychological evaluation by court-appointed defense expert, Dr. JoAnn Murphey;
5. Counsel refused Del Cid's request to be evaluated by a psychopharmacologist, even though Dr. Murphey was a psychopharmacologist;
6. Counsel failed to properly present and explain the plea bargain offered by the State;
7. Counsel failed to provide sufficient counsel to Del Cid or provide enough time for him to consider the plea bargain offered by the State;
8. Counsel failed to procure a bond reduction hearing or file a writ of habeas corpus to reduce Del Cid's bond after being requested to do so by Del Cid;
9. Counsel failed to provide legal advice concerning the application for time accrued in county jail toward Del Cid's sentence in Texas Department of Criminal Justice;
10. Counsel failed to properly investigate a charge of felon in possession of a firearm that was to have been dismissed in 2014 pursuant to a plea bargain or keep Del Cid informed regarding said charge;
11. Counsel failed to counsel or advise Del Cid after he asked him what bearing Dr. Murphey's evaluation and meeting with him would have on his case, thereby causing him to not answer questions and requesting to speak to his lawyer as he was confused as to whether Dr. Murphey represented him or the State;
12. Counsel falsely stated on May 25, 2016 to Del Cid that he had destroyed his files and that he could not go to trial; and
13. Counsel stated on May 25, 2016 that he would not come see Del Cid in jail prior to trial to prepare for trial, answer Del Cid's questions, or go over trial strategy.
In addition to these pre-trial acts and omissions, Del Cid argues that the defense failed to call Dr. Murphey during punishment or to otherwise introduce her report at the punishment phase of trial. He also contends a report reflecting that he participated in the "GRIT Addiction, Trauma and Recovery Educational Support Project for Incarcerated Men" at the Bexar County Jail should have been introduced. He contends that both reports contain mitigating information as to his mental health that could have been taken into consideration by the jury in assessing punishment.
We cannot conclude Del Cid has met his burden to rebut the strong presumption that counsel's pre-trial acts and omissions were reasonably professional and motivated by sound trial strategy. See Strickland, 466 U.S. at 688-89; Thompson, 9.S.W.3d at 813-14. Except for his third and fourth complaints, Del Cid has not developed a record to support his claims of ineffective assistance. See Strickland, 466 U.S. at 689 (when record is silent as to counsel's trial strategy, we presume that counsel performed reasonably). Defendant's Exhibit 1 addresses Del Cid's third complaint. In the letter from Economidy to Del Cid, Economidy states, "I have advised you that I will not follow the advice of your aunt and that your persistence in such a demand will force me to withdraw from representing you." It thus appears that Economidy was refusing to follow advice from a person who was not his client, instead of refusing to update family members about the progress of the case as Del Cid now contends. In any event, Economidy was not afforded an opportunity to confirm or deny, or otherwise explain the circumstances surrounding this particular claim; we must therefore defer to counsel's actions. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). As to Del Cid's fourth complaint, Economidy explained at the June 10, 2016 motions hearing that he did not want Del Cid to have a copy of Dr. Murphey's psychological evaluation because at the time, the State was considering dismissing the capital case and substituting a new indictment. Economidy did not want Del Cid to "start creating symptoms and have the removal of the capital charge blow up in our face." Thus, the record contains a strategic reason for withholding the evaluation from Del Cid before the case was re-indicted. In any event, even assuming counsel's pre-trial representation fell below an objective standard of reasonableness, Del Cid has failed to demonstrate that he was prejudiced by counsel's acts and omissions. See Strickland, 466 U.S. at 694.
Del Cid was eventually provided a copy of the psychological evaluation.
Del Cid has likewise failed to develop a record in support of his claims regarding counsels' failure to call Dr. Murphey or to introduce her report or the GRIT report. The reports are not contained in the record, and there are no affidavits or record evidence to show what Dr. Murphey or a witness from the Bexar County Jail would have testified to. Thus, Del Cid failed to rebut the strong presumption that counsels' omissions were reasonably professional and motivated by sound trial strategy. See Strickland, 466 U.S. at 688-89; Thompson, 9.S.W.3d at 813-14. Even assuming counsels' representation fell below an objective standard of reasonableness, Del Cid has not shown a reasonable probability that, but for trial counsels' failure to call Dr. Murphey or to introduce her report, the result of the trial would have been different. See Strickland, 466 U.S. at 687. The evidence showed that Del Cid perpetrated a violent crime against a pizza delivery driver. In closing, the State referred to Del Cid's history of theft and violence. Accordingly, Del Cid cannot show a reasonable probability that he would have received a lesser sentence had Dr. Murphey been called or the reports introduced. See Bone, 77 S.W.3d at 833. We overrule Del Cid's third issue.
This opinion does not preclude Del Cid from "resubmit[ting] his claim via an application for writ of habeas corpus" which also would afford trial counsel an opportunity to explain his actions. Thompson, 9 S.W.3d at 814-15; Arceneaux v. State, No. 04-13-00830-CR, 2014 WL 3340376, at *2 (Tex. App.—San Antonio July 9, 2014, no pet.) (mem. op., not designated for publication).
CONCLUSION
Having overruled Del Cid's issues on appeal, we affirm the judgment of the trial court.
Rebeca C. Martinez, Justice DO NOT PUBLISH