Opinion
No. 05-05-00221-CR
Opinion Filed June 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-54630-NU. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Billy Frank Smart of burglary of a building and assessed punishment at eighteen years in prison. In four issues, appellant complains the evidence was legally and factually insufficient to support his conviction, the trial court improperly admitted his confession, and the trial court erred in failing to appoint him new counsel. We affirm. Between 3 and 3:30 a.m. on August 4, 2004, Dallas Police Officer Leshai Maston and his partner responded to a burglar alarm at Gold Star Pawn Shop. When they arrived at the business, Officer Maston saw "someone prying at the back door." Officer Maston got out of the vehicle, while his partner pulled around to the other side of the building to prevent the suspect from escaping. Officer Maston met a man, identified as appellant, at the corner of the building and used a "brachial stun" to subdue him. Officer Maston then inspected the area and found the steel door "where it meets the frame down a bit." Officer Maston said the door was "partially cracked open, pried open" and "you could see the light from the inside of the building . . coming out." He also found a big hole in the back wall of the building. Officer Maston found a sledgehammer that was wrapped in cloth, apparently to muffle the noise, and a chisel and two backpacks by the back door. Based on the size of the hole in the wall, Officer Maston believed appellant had been "working on it for a while." Danny Harp, the store's manager, testified that when he arrived at the scene that night, he saw the "gaping hole" in the back of the building, and insulation, concrete, and plaster on the ground. Also, he said the door had "obviously been pried on." Harp testified that neither the hole nor pry marks had been there earlier, and he did not give anyone permission to pry the door or knock a hole in the wall. Appellant was arrested at the scene. Officer Jerry Dodd transported appellant to the police substation, where he was interviewed by Detective Duane Boy. Appellant gave a written statement saying that he was homeless and "that's why I did what I did, so I could make me some money." In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to prove he entered the building. He argues there was no evidence that he was ever seen inside the building, that he or any part of his body intruded into the building, or that he had any stolen goods in his possession. The standards for reviewing the legal and factual sufficiency of the evidence are well-established. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (2004) (factual sufficiency). In a burglary prosecution, entry into the building is an essential element of the offense. See Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). "Enter" means to intrude "any part of the body" or "any physical object connected with the body." See 30.02(b)(1), (2). The "entry" requirement is intended to protect "the interior or enclosed part of the described object, be it a house, a building or a vehicle." Griffin v. State, 815 S.W.2d 576, 579 (Tex.Crim.App. 1991) (per curiam). Here, the evidence showed that police arrived on the scene to find appellant prying at the door. An inspection of the property showed that the steel door was "partially cracked open, pried open" with the door "down a bit" from the frame and light coming from the inside of the building. In addition, there was a "gaping" hole in the back wall of the building. Police found a sledgehammer, chisel, and two backpacks by the back door. Viewing this evidence in a light most favorable to the prosecution, a rational jury could conclude, beyond a reasonable doubt, that appellant entered the building by breaking through the wall with a sledgehammer and partially prying open the door. See Ortega v. State, 626 S.W.2d 746,747 (Tex.Crim.App. 1981) (concluding there was "entry" when evidence showed that latch on screen door pulled off, door knob on wooden door disabled, and pry marks were on wooden door); Williams v. State, 997 S.W.2d 415, 417-18 (Tex.App.-Beaumont 1999, no pet.) (concluding that evidence of broken padlock and door frame established entry into building); Woods v. State, 814 S.W.2d 213, 215-16 (Tex.App.-Tyler 1991, no pet.) (concluding that cutting screens on exterior windows sufficient to establish entry into residence). Likewise, in light of the entire record, the verdict is not so contrary to the overwhelming weight of the evidence as to be manifestly wrong or unjust or the proof of guilt so weak as to undermine confidence in the jury's determination. Issues one and two are without merit. In his third issue, appellant contends the trial court erred in admitting his written statement because it was not voluntary. Specifically, appellant asserts that police coerced him into giving the statement by promising him that he and his girlfriend's son, Mark Forney, who apparently was also apprehended at the scene, would be released. At the suppression hearing, Detective Boy testified he took appellant's written statement the night he was arrested. Detective Boy testified he read appellant his constitutional rights from the voluntary statement card and appellant also read the card. He asked appellant if he understood his rights, and appellant said yes. He testified he did not coerce or threaten appellant into giving a statement nor did he directly or indirectly make him any promises. Appellant wrote his statement and was alone in the room when he did so. Appellant signed the statement, which was witnessed by Officer Maston. The statement included appellant's statutory and constitutional rights, waiver of those rights, and acknowledgment that the statement was given freely and voluntarily, without any promises of leniency or favors. On cross-examination, Detective Boy denied making any promises to appellant, including releasing Forney if he gave a statement. Detective Boy said they discussed Forney, but that appellant denied knowing him. Appellant was "adamant" that he "had done this himself," and Detective Boy did not find that unusual. Detective Boy said he talked to someone else at the station, but did not believe he was involved in the burglary. He did not know whether any other police officer made a promise to appellant regarding Forney but did not know of any promises. The entire interrogation process lasted about thirty minutes. In brief testimony at the suppression hearing, appellant said he "wrote the statement in part due to the Officer Boy or Boyle not Boyle, but Dodd, telling me that if I wrote a statement owning up to the tools and making it believable, once I got to the substation that he would turn me a-loose. And also I heard on the radio while I was in the car that they had Mark Forney in custody for questioning." Appellant explained that Forney was the son of his girlfriend at the time and that he was concerned police would arrest Forney. On cross-examination, appellant said everything he put in the statement was a "lie." Upon further questioning, however, he acknowledged that many facts were true. He acknowledged his signature on the statement and that he wrote the statement, but denied reading the portion that outlined his rights before signing the statement. He also said Detective Boy did not read his rights to him until he was writing the second page of the statement. He said he was in the room alone when he wrote the statement and that he did not know where Officer Dodd was at that time. Although Officer Dodd testified at trial immediately before the suppression hearing, he did not testify at the suppression hearing and was not questioned by either side about any promises allegedly made to appellant. Law enforcement personnel may not elicit confessions by making false promises. Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (holding defendant's will was overborne by police promise not to take away children if defendant confessed); Mason v. State, 116 S.W.3d 248, 260 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). A confession is involuntary if the totality of circumstances demonstrates that the defendant did not make the decision to confess of his own free will but rather the confession was obtained as a direct result of coercion. See Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991). Under article 38.21, a suspect's confession must be "freely and voluntarily made without compulsion or persuasion" to be admissible. Tex. Code Crim. Proc. Ann. Art. 38.21 (Vernon 2005). For a promise to render a confession invalid under article 38.21, the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004). In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts, especially when that determination involves an evaluation of the credibility and demeanor of witnesses. Masterson v. State, 155 S.W.3d 167, 170 (Tex.Crim.App. 2005), cert. denied, 126 S.Ct. 1330 (2006). Here, appellant claimed police induced him to make the statement by promising that both he and Forney would be released. Detective Boy, who actually took appellant's statement, denied that he made any such promise and further testified that appellant denied even knowing Forney. In addition, although Officer Dodd did not testify at the suppression hearing, he did testify immediately before it and stated that he did not see other suspects at the scene and appellant was the only person he was involved with that night. Although he was not asked if he made any promises to appellant, the court could infer that Officer Dodd made no such promise given that he did not see other suspects at the scene, which would necessarily include Forney. Regardless, the trial court did not have to believe appellant's testimony that Officer Dodd made any such statement, even if the testimony was not controverted. See Masterson, 155 S.W.3d at 171 (concluding that trial court had discretion to disbelieve appellant's testimony that he requested counsel when State did not controvert testimony). Considering the totality of the circumstances and the conflicts in the testimony, we cannot say the trial court abused its discretion in admitting appellant's confession. We reject the third issue. In his fourth issue, appellant contends the trial court abused its discretion in failing to grant his request for a new attorney because of a conflict with court-appointed counsel. The record indicates that appellant had been unhappy with counsel prior to trial and had communicated his dissatisfaction to the presiding judge of the court and a psychiatrist who evaluated him. A visiting judge presided over his trial. On the day of trial, appellant presented a pro se motion asking the court to remove court-appointed counsel for failure to communicate with him. (The motion is not included in the record, but both sides agree one was filed and the trial court ruled on the motion.) Counsel informed the court that she had attempted on at least three occasions to discuss appellant's case with him, but appellant refused to discuss the details of his case with her. Appellant told the court he did not believe he could receive a fair trial with current counsel representing him, explaining that he had asked questions and "quote[d] law" to her that he had read in a law book, and she told him his "understanding [was]wrong." Appellant said he would get mad and not speak to counsel. The court explained to appellant that people not "legally trained" sometimes "take cases, statutes out of context as it pertains to their circumstances." The court denied the motion. After the State rested its case, appellant continued to object to court-appointed counsel. The court engaged in a lengthy discussion with appellant with respect to his complaint that the trial was "unfair" and offered to declare a mistrial if appellant could establish any specific constitutional violation. Appellant again complained that he did not get along with counsel and requested hybrid representation, which the judge told him was not allowed in Texas. With respect to counsel, appellant complained that, at their first meeting, she discussed plea bargaining without asking him what happened and refused to file motions that he wanted filed. One such motion was a motion to suppress, which the trial court explained was filed, heard, and denied. Appellant could not provide a basis for a second motion he wanted filed — one to quash the enhancement paragraphs. A defendant does not have the right to his own choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court. See Thomas v. State, 550 S.W.2d 64, 68 (Tex.Crim.App. 1977); McKinny v. State, 76 S.W.3d 463, 477 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A trial court is under no duty to search until it finds an attorney agreeable to the defendant. Malcolm v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. [Panel Op.] 1982). The defendant bears the burden of showing he is entitled to a change of counsel. Id. While a defendant is entitled to effective assistance of counsel, this constitutional protection cannot be manipulated in such a manner as to throw the trial process into disarray. Dunn v. State, 819 S.W.2d 510, 521 (Tex.Crim.App. 1991). Here, appellant did not ask to represent himself at trial. Rather, the record shows that appellant wanted hybrid representation, but hybrid representation is not available to a criminal defendant in Texas. Scheanette v. State, 144 S.W.3d 503, 505 n. 2 (Tex.Crim.App. 2004), cert. denied, 543 U.S. 1059 (2005). As for adequate cause, appellant pointed to no specific conflict that required the trial court to remove or replace counsel. Instead, he complained that he and counsel did not get along and admitted that he refused to communicate with her. After reviewing the lengthy discussions between appellant and the trial court, it appears that appellant simply did not like the attorney who had been chosen to represent him. But personality conflicts and disagreements about trial strategy are typically not valid grounds for withdrawal. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). Under these circumstances, we cannot conclude the trial court abused its discretion in failing to grant his motion for new counsel. Issue four is without merit. We affirm the trial court's judgment.