Nicholas Dewayne Franklin v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Nicholas Dewayne Franklin

Appellant

Vs.                   Nos. 11-01-00274-CR & 11-01-00275-CR   B Appeals from Dallas County

State of Texas

Appellee

After a nonjury trial, Nicholas Dewayne Franklin was convicted of the unlawful possession of a controlled substance and the unauthorized use of a motor vehicle.  The trial court assessed his punishment at confinement for 3 years and a fine of $1,000 for possession of the controlled substance and confinement for 18 months and a fine of $1,000 for the unauthorized use of the motor vehicle. We affirm.

                                                              The Two Indictments

The first indictment charged that, on or about May 25, 2000, appellant possessed more than one but less than four grams of cocaine.^[1]  The second indictment charged that, on or about December 27, 2000, appellant operated a motor-propelled vehicle without the effective consent of the owner.^[2]

                                                               The Issue on Appeal

Appellant urges the same issue in both appeals. He argues that he Ahas been denied the effective assistance of counsel,@ and he cites U.S. CONST. amends. VI and XIV.  There is no challenge to the sufficiency of the evidence.

                                                               Relevant Testimony

The first two witnesses were police officers who testified about the December offense.  Officer Townsend Howard testified that he had been a police officer for 12 years and that he was working undercover.  He saw a 1976 model Chevrolet pickup being driven by appellant. He checked with the dispatcher and received a report that the pickup had been stolen.  Officer Howard called for a uniformed officer to Acome out and stop the vehicle.@  Officer Townsend identified appellant as the man who was driving the pickup.

The second witness, Officer Tina Duncan, testified that she was the officer in the marked patrol car who responded to the call from Officer Howard.  She also identified appellant as the man who was driving the vehicle.  Appellant gave the name ADante Tremont Franklin,@ but Officer Duncan later learned that his true name was ANicolas Franklin.@ Appellant later told her that the name he had first given was his son=s name. She said that appellant also claimed that he had bought the truck and that he had a Abill of sale and a title.@ Appellant asked her to call his wife and have her bring those documents to the scene.  Officer Duncan stayed with appellant until his wife brought some documents to the scene.  Those documents were admitted into evidence.  Appellant was arrested after the wife of the vehicle=s owner was contacted and said that the vehicle had been stolen.  Officer Duncan testified that the steering column had been broken, and she also said that the pickup was Atowed to the auto pound.@ 

The third witness,  Officer Maria Webb, testified about the earlier offense,  saying that she responded to a Adrug house call@ about a Awhite Cadillac sitting in a vacant lot@ which had  a Ablack male in there possibly armed with a gun and selling drugs out of the vehicle.@  Officer Webb and two other officers went to the vehicle and knocked on the door.  She said that they Akept banging@ until appellant woke up, sat up, and looked at them. Officer Webb said that appellant Areally didn=t respond at first@ and that he finally climbed over to the passenger side.  When they were able to open the door, she pulled appellant out of the car.  Officer Webb saw a Ablue baggie@ which appeared to contain drugs.  She identified the baggie that was introduced into evidence.  There is no dispute about the fact that it contained 1.09 grams of cocaine. Officer Webb identified appellant as the man she pulled from the car at about 4:45 a.m. that morning.

The State=s last witness, Edwin Smith, testified that he is the owner of the 1976 pickup which appellant was driving on December 27, that it had been stolen in December, that he had promptly reported to the police that it had been stolen, and that the police later called him when they found his pickup.  Smith testified that he had not sold that pickup to anyone and that he did not know appellant.  Smith identified the Aold insurance policy@ which appellant=s wife brought to the scene of his arrest.  Smith said that was his policy on the pickup.  Smith also testified that the Atitle@ which appellant=s wife brought to the scene was not the title to his pickup.  The identification numbers on that title are not the same as the numbers on the pickup. On cross-examination Smith testified that someone had Achanged the key switches@ before he got his pickup from the pound.  Smith said Ait had been repaired@ before he got it back.

Appellant was the fifth witness.  He admitted that he did not know Edwin Smith, but he claimed that he got the pickup from a man named Smith who claimed to be the owner and who gave him a title to the pickup.  Appellant claimed that the man who Asold@ him the pickup had a Afor sale@ sign on the pickup when he showed it to him, and appellant claimed that he had a police officer Arun a check@ on the title to make sure that it was not stolen.  He said the officer ran that check at the Auto Zone store in November of last year. Appellant also testified that he had the key to the truck and that the steering column was not broken. Concerning the other offense, appellant admitted that he was in the car when the police arrested him; however, he claimed that he did not know about the cocaine and that he was installing a stereo in the car.  Appellant testified that he was waiting in the car for the owner to come back to pay him for his work.  Appellant testified that he was not selling drugs out of that car, that he did not have a gun with him, and that it was not his car.  On cross-examination appellant said that the lights were not working in the car because Athe battery wasn=t hooked up.@  Appellant denied that he was ever on the driver=s side of the car.  Appellant admitted that the vehicle identification numbers were different on the insurance papers and on the title which he gave to the officers at the time of his arrest.  He explained why he lied about his name that night, saying: ASo I did what I could to stay free.@ Appellant admitted that he had been on probation for a forgery offense in Bowie County in 1998 and that he had two misdemeanor assault convictions in Dallas County in 1997.     

                                                                Trial Court=s Ruling

After hearing argument of counsel, the trial court found that appellant was guilty of the unlawful possession of cocaine in the first case and of the unauthorized use of a motor vehicle in the second case. The trial court then heard testimony from appellant=s mother^[3] in support of his application for probation, reviewed the presentence investigation report, heard argument of counsel^[4] on punishment, and assessed the punishment in each case, giving credit for the time served while the cases were pending.

                                                              Assistance of Counsel

The standard for reviewing claims of Aineffective assistance of counsel@ is clearly set forth in Strickland v. Washington, 466 U.S. 668, 693 (1984).  Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999), makes it clear that the Anow familiar two-prong Strickland test@ applies to all criminal proceedings in Texas.

The Supreme Court said in Strickland v. Washington, supra at 689:

Judicial scrutiny of counsel=s performance must be highly deferen-tial....Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance.

Appellant has not shown that his trial counsel=s conduct was ineffective. Moreover, appellant has not shown that, Abut for@ his counsel=s performance, Athe result@ of the trial would have been different. Hernandez v. State, supra at 770 n.3.

Appellant argues that the trial court should have appointed a different lawyer to represent him because the Aanimosity@ between appellant and his court-appointed trial counsel was Aextensive.@  Appellant argues that their Apersonality conflict@ had reached the point that the court-appointed trial counsel Acould not properly represent appellant as his advocate.@ Appellant cites Buntion v. Harmon, 827 S.W.2d 945 (Tex.Cr.App.1992), and Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989).  In those cases, the trial court had removed the court-appointed attorney over the defendants= objections.  In the cases before us, the trial court refused to appoint a different attorney when appellant wanted the court to remove the first attorney and appoint a different one.  The cases before us are more like the situation before the court in King v. State, 29 S.W.3d 556, 566 (Tex.Cr.App.2000), where the court noted that Apersonality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal@ and then stated: AA trial court has no duty to search for counsel agreeable to the defendant.@  The sole issue is overruled.

                                                                This Court=s Ruling

The judgments of the trial court are affirmed.

BOB DICKENSON

SENIOR JUSTICE

May 23, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

McCall, J., and Dickenson, S.J.^[5]

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^[1]Cause No. F00-49477-UH in Criminal District Court No. 1 of Dallas County, Cause No. 11-01-00275-CR in this court.

^[2]Cause No. F00-57168-SH in Criminal District Court No. 1 of Dallas County, Cause No. 11-01-00274-CR in this court.

^[3]Appellant=s mother testified that appellant was 23 years of age, that he had never been convicted of an offense involving a weapon, that he had never been convicted of any sex offense, that she had never known him to use drugs, and that she was willing and able to assist him in meeting all the terms and conditions of probation. 

^[4]After the State waived its opening argument, appellant=s court-appointed trial counsel made an argument of the evidence which supported his request for community supervision.  The State then  closed, arguing that Atime and time again@ appellant has been given breaks, arguing that appellant had lied to the court Aover and over again,@ and asking the court to send appellant to the penitentiary.

^[5]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.