Bernard Williams v. State of Texas ( 2007 )

Opinion filed September 13, 2007

Opinion filed September 13, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00083-CR

                                                    __________

                                   BERNARD WILLIAMS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                  On Appeal from the County Court at Law No. 2

                                                        Midland County, Texas

                                               Trial Court Cause No. CR103,337

                                                                   O P I N I O N

Bernard Williams was convicted of misdemeanor possession of marihuana and was sentenced to 180 days confinement, probated for one year, and a $500 fine.  Williams challenges his conviction with two issues, contending that the trial court abused its discretion by denying his request for trial counsel of his own choice and by denying his requested reasonable doubt instruction.  We affirm.

Williams was charged with Class B misdemeanor possession of marihuana on March 20, 2004. Williams initially retained counsel, but his counsel was allowed to withdraw on May 5, 2004.  The record shows that Williams requested a court-appointed attorney, but it does not indicate when the request was made.  In any event, on October 6, 2005, the trial court appointed counsel for him.  Williams=s trial began on February 13, 2006.

Williams=s counsel approached the trial court after the venire panel had been seated and before the start of voir dire.  Counsel objected to the panel because it did not contain any African Americans.  The trial court overruled Williams=s objection, and counsel requested permission for Williams to directly address the court.  Williams was allowed to proceed, and the following transpired:

[WILLIAMS]: Yes, I would like to object to my attorney.  I would like to get another attorney. 

THE COURT: Okay.  Well, you=ve had B this case has been on file for two years. You had an attorney B you had an attorney withdraw.  You then requested of this Court a court-appointed attorney.  I granted that to you.  You don=t get to choose your court-appointed attorney. The Court has appointed one to you.

[WILLIAMS]: Yeah, I would like to go and hire a different attorney.

THE COURT: You had the opportunity for two years and you didn=t do so, so that is too B it=s not timely filed.  So the Court is going to overrule your request at this time and we=re going to proceed to trial.

The Sixth Amendment guarantees the assistance of counsel in all criminal proceedings. That guarantee includes a qualified right to retain counsel of the defendant=s own choosing.  United States v. Hughey, 147 F.3d 423, 428 (5th Cir. 1998).  The defendant=s right must be balanced with the trial court=s need for prompt, orderly, effective, and efficient administration of justice.  Emerson v. State, 756 S.W.2d 364, 369 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d).

We review a trial court=s decision to proceed with the trial for an abuse of discretion.  See Childress v. State, 794 S.W.2d 119, 122 (Tex. App.CHouston [1st Dist.] 1990, pet. ref=d).  When determining whether to postpone a trial to afford the defendant an opportunity to obtain counsel of his choice, trial courts should consider factors such as:

(1) the length of the delay requested,

(2) whether other continuances were requested and whether they were denied or granted,

(3) the length of time in which the accused=s counsel had to prepare for trial,

(4) whether another competent attorney was prepared to try the case,

(5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court,

(6) whether the delay is for legitimate or contrived reasons,

(7) whether the case was complex or simple,

(8) whether a denial of the motion resulted in some identifiable harm to the defendant, [and]

(9) the quality of legal representation actually provided.

Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982). The application of these factors to the record does not demonstrate an abuse of discretion.

This was a simple Class B misdemeanor case.  Appointed counsel had been given several months to prepare, and both the State and Williams had subpoenaed witnesses.  The court had observed the quality of appointed counsel=s performance at a prior suppression hearing, a venire panel had been seated, and jury selection was set to begin. Williams did not offer the trial court a reason for wanting new counsel, did not explain why he waited until the start of jury selection to make his request, has not offered this court any reason for his decision or timing, and did not offer the trial court an explanation for how, even though he had previously asked for court-appointed counsel, he could now retain counsel.  Finally, as the trial court pointed out, his case had been on file for two years. The trial court was well within its discretion to deny Williams=s request and to proceed with trial.  Issue one is overruled.

Williams next argues that the trial court erred by denying his request to include a reasonable doubt definition in the court=s charge.  Williams requested the trial court to include the instruction previously required by Geesa v. State, 820 S.W.2d 154, 157 (Tex. Crim. App. 1991).  Williams acknowledges that Geesa was overruled by Paulson v. State, 28 S.W.3d 570, 572 (Tex. Crim. App. 2000). He contends, however, that an instruction was needed because several venire members indicated confusion over the proper definition of reasonable doubt.

            Paulson not only overruled Geesa by holding that trial courts were no longer required to include a reasonable doubt definition in their charge, it was heavily critical of the definition adopted in Geesa, noting that, A[i]f a conscientious juror reads the Geesa charge and follows it literally, he or she will never convict anyone.@  28 S.W.3d at 572.  We need not decide whether circumstances in a particular trial might require a reasonable doubt definition even over the objection of a party. Even if the trial court is required to define reasonable doubt, we cannot say that it would err by refusing to provide an incorrect definition.  Issue two is overruled. 

 The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

September 13, 2007

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.