Court of Appeals of Texas, Fourteenth District, HoustonMay 22, 2007
No. 14-06-00348-CR (Tex. App. May. 22, 2007)

No. 14-06-00348-CR

Filed May 22, 2007. DO NOT PUBLISH TEX. R. APP. P. 47.2(b).

On Appeal from the 180th District Court Harris County, Texas, Trial Court Cause No. 1050324.

Panel consists of Justices FROST, SEYMORE, and GUZMAN.



Challenging his conviction for the felony offense of possession with intent to deliver a controlled substance, appellant Eugene Anderson contends the trial court denied him the right to counsel and the right to represent himself at trial, thereby violating his state and federal constitutional rights. We affirm.


Appellant was indicted for possession with intent to deliver a controlled substance, namely, heroin, weighing more than one gram and less than four grams by aggregate weight, including any adulterants and dilutants. This felony charge was enhanced with two prior felony convictions. Appellant entered a plea of "not guilty" to the charged offense. Appellant waived his right to trial by jury and instead opted to have his case tried to the court. Before the trial commenced, appellant expressed dissatisfaction with his appointed counsel. The trial judge engaged appellant and his counsel in a dialogue on the subject, and then the case proceeded to trial. At the conclusion of the bench trial, the court found appellant guilty and also found both the enhancement paragraphs to be true. The trial court then sentenced appellant to fifteen years' confinement in the Texas Department of Criminal Justice, Institutional Division.


On appeal, appellant raises two issues in which he contends the trial court violated his state and federal constitutional rights (1) by not appointing a new lawyer to represent him at trial and (2) by refusing to allow pro se representation. For the reasons explained below, these issues, if not waived, lack merit.

A. Did the trial court deny appellant his right to counsel under the Texas and United States Constitutions by "forcing" him to proceed to trial with a particular lawyer?

In his first issue, appellant contends the trial court denied his right to counsel when it purportedly forced him to proceed with his court-appointed lawyer. The State contends appellant has waived his complaint by inadequate briefing and by failing to preserve error in the trial court. About three months before trial, on January 9, 2006, appellant filed a pro se motion, in which he asked the trial court to dismiss his court-appointed lawyer and to appoint new counsel. Appellant, however, never presented this motion to the trial court, nor did the trial court rule on this motion. On the day of trial, April 10, 2006, appellant's counsel informed the trial court that appellant was dissatisfied with counsel's representation. Additionally, appellant, on the record, expressed his dissatisfaction with appointed counsel. The trial court then engaged appellant in a discussion regarding his counsel's alleged inadequacies. Appellant stated that if he were forced to proceed to trial with his appointed counsel, he would not receive a fair trial. Appellant then requested an extension, explaining that his appointed counsel had failed to pursue a motion for discovery and a motion to suppress, in addition to failing to subpoena two witnesses — Garland Stewart and Linda Perry. The trial court denied the request, noting that a motion for discovery would have been futile because the court utilizes a standard court order for discovery, and a motion to suppress could be raised during trial. Appellant's counsel, on his own behalf, stated that the State had an "open file" policy, that the facts of this case did not warrant a motion to suppress at this time, and that he had never heard of one of the witnesses (Stewart) until the day of trial. Appellant's counsel further stated that approximately one week earlier, he had contacted appellant's sister, who gave him phone numbers for Linda Perry. In the absence of adequate cause for appointment of new counsel or an effective waiver of the right to counsel to pursue self — representation, an accused does not have the right to appointed counsel of choice but must accept counsel assigned by the court. Privett v. State, 635 S.W.2d 746, 749 (Tex.App.-Houston [1st Dist.] 1982, pet. ref'd). Appellant's expressed dissatisfaction with his trial counsel does not rise to the level of adequate cause for appointment of new counsel. See Aguilar v. State, 651 S.W.2d 822, 823-24 (Tex.App.-Houston [1st Dist.] 1983, no pet.) (stating that "[A]ppellant's stated purpose in having the court appoint counsel who would follow appellant's defense strategy, regardless of counsel's own views, does not constitute an `adequate' reason for the appointment of new counsel."). A trial court is not under any duty to search until it finds an attorney agreeable to the defendant. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982). Appointment of new counsel is a matter within the discretion of the trial court. Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). Moreover, personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal of counsel. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). Appellant did not request or secure a ruling on his pretrial motion. Moreover, the trial court never made an explicit ruling on the request appellant made on the day of trial. Presuming, for the sake of argument, that the trial court implicitly denied appellant's request, we conclude that denial of appointment of new counsel did not violate appellant's rights under either the United States Constitution or the Texas Constitution. See id. (concluding that the right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice); Brink v. State, 78 S.W.3d 478, 483 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (stating that A[I]n the criminal context, right to counsel of one's own choice is neither absolute nor unqualified, but must be balanced against trial court's need for prompt, orderly, effective and efficient administration of justice). On this record, appellant has not demonstrated good cause for the appointment of new counsel or that the trial court abused its discretion. Accordingly, we overrule appellant's first issue.

B. Did the trial court deny appellant his right to represent himself?

In a second, interrelated issue, appellant contends the trial court erred in denying his right of self — representation in violation of the United States and Texas Constitutions. Appellant contends he was "forced" to go to trial with appointed counsel. On the day of trial, appellant personally expressed his dissatisfaction with his appointed counsel and requested new counsel. In the discussion that ensued, appellant made the following request for self-representation:
The Court: Okay. What else?
The Defendant: I would like to know could I get an extension?
The Court: No, sir. What else?
The Defendant: That's all I have, Your Honor.
The Court: Okay.
The Defendant: I can't have — I can't — can I represent — can I represent myself?
The Court: It's hundred and seventeen days old, Mr. Anderson, and your case is set for trial today.
The Defendant: Can I represent myself?
The Court: What do you know about the law?
The Defendant: I know enough to represent myself.
The Court: Yes, sir, Mr. Martin?
Defense Counsel: I would like — well, Your Honor, I would like to respond to some of this.
The Court: Go right ahead, please.
. . .
The Court: Mr. Anderson, you tell me that you want to represent yourself and that — let me just say this: That is never a good idea. Never. I have never seen that turn out well for any defendant that wanted to do that.
Because you are complaining about Mr. Martin as your lawyer, let me tell you that he's one of the best lawyers in the building, and if you want to represent yourself, you have to waive the right to effective representation before I am going to let you do that, which means you cannot complain about anything you do and I have to hold you to same standards as I would somebody that has gone to law school, graduated law school, taken and passed the Bar exam and is an experienced criminal practitioner. It never turns out good. I promise.
The Defendant: Well — well, excuse me, Your Honor, but with all due respect, I don't have much charge of neither my self-representation or my attorney here that's been appointed, which I don't feel like I can get effective representation from Mr. Martin which has been —
The Court: Besides these two witnesses that you want to have here and these motions that we just talked about, what else has he not done?
The Defendant: Well, you know, he told me that, you know, he wasn't going to file any motions, that he was going to file what he felt.
The Court: Because he is a lawyer and he knows whether there is an issue or not.
The Defendant: But I am saying, Your Honor, this is my life that I am fighting for and I am not, you know, in no position to go to trial without any kind of type of motions on my behalf.
The Court: And I said that if there is a motion to suppress issue that is involved in this case, he can make it orally during the course of the trial.
The Defendant: I don't get a pretrial before trial?
The Court: No, sir. No, sir. You are not entitled to that under the law. And that's why I say it never turns out well when somebody wants to represent themselves. I wouldn't represent myself.
The Defendant: Well, it's going to be the same thing if I go to trial with him. I am still going to get railroaded.
The Court: Okay. What else besides these two witnesses?
The Defendant: That's all I have at this moment, Your Honor.
The Court: Okay. I can make arrangements to have these witnesses contacted. I will have the process server contact them.
What else?
The Defendant: That's all I have at this time.
The Court: All right. Thank you, sir. Have a seat.
(Emphasis added.) Appellant argues that he asserted his right of self — representation timely, clearly, and unequivocally and that the trial court's denial of his request violated his constitutional rights. The Sixth and Fourteenth Amendments to the United States Constitution guarantee that a person brought to trial in any state or federal court has the right to self — representation. See Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Moore v. State, 999 S.W.2d 385, 396 (Tex.Crim.App. 1999). The right to self — representation does not attach, however, until it has been clearly and unequivocally asserted. See Ex parte Winton, 837 S.W.2d 134, 135 (Tex.Crim.App. 1992). Moreover, this right must be asserted in a timely manner. See McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App. 1997). Once the right has been asserted, the trial judge is obliged to make the accused aware of the consequences of self — representation. See Faretta, 422 U.S. at 835; Winton, 837 S.W.2d at 135. Thereafter, if the accused maintains his desire to proceed pro se, he should be allowed to do so as long as the assertion of his right to self — representation is unconditional and not asserted to disrupt or delay the proceedings. See Winton, 837 S.W.2d at 135. However, a defendant who initially asserts his right to appear pro se, but later abandons the right by inviting participation by counsel, waives his right to represent himself. See McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984) ("A defendant can waive his Faretta rights"); Funderburg v. State, 717 S.W.2d 637, 642 (Tex.Crim.App. 1986). The record must adequately reflect that a defendant waived his right to self — representation after asserting it, but proof of waiver of self — representation is not subject to as stringent a standard as proof of waiver of the right to counsel. Funderburg, 717 S.W.2d at 642. A record sufficiently demonstrates that a defendant waived his right to proceed pro se if it reasonably appears to the court that the defendant abandoned his initial request to represent himself. Id. Mere acquiescence to a trial court's unmistakable denial of his request to represent himself is not a waiver of a defendant's right to self — representation. Id. We presume, without deciding, that on the day of trial, appellant clearly and unequivocally asserted his right to represent himself. However, the trial court engaged appellant in a dialogue on the subject, and generally warned him of the risks and danger of representing himself. The trial court then explored appellant's complaints about his lawyer and addressed appellant's concerns about the alleged failure to secure witnesses and file motions. The court explained that if appellant were to represent himself, he would be held to the same standards as an experienced criminal lawyer. After this discussion, appellant continued to assert that he needed more time, and wanted to file some "motions" and have a "pretrial." After the trial court stated that it would have the process server contact the two witnesses appellant wished to have appear at his trial and would consider any suppression motion during trial, appellant did not mention self-representation again, but instead stated, "That's all I have at this time." The record does not reflect that the trial court unmistakably denied appellant's request to represent himself or that appellant merely acquiesced to such a denial by the trial court. Rather, the record reflects that, after the trial court addressed some of the perils of self-representation and addressed the complaints appellant had regarding his appointed counsel, appellant told the trial court he had nothing further to say at that time. Under these circumstances, we conclude that, even if appellant clearly and unequivocally asserted his right to represent himself, he later abandoned that request. See id. at 642 (concluding that a record sufficiently demonstrates that appellant abandoned his request to represent himself); Carroll v. State, 176 S.W.3d 249, 254-55 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (concluding appellant abandoned his request to proceed pro se after raising it). Accordingly, we overrule appellant's second issue. The judgment of the trial court is affirmed.