David C. Bates v. State ( 2008 )

MARY'S OPINION HEADING

                                                NO. 12-07-00097-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID C. BATES,   §                      APPEAL FROM THE 241ST

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            After a bench trial, the trial judge found Appellant guilty of aggravated assault, and made a deadly weapon finding.  Immediately prior to the sentencing hearing sixteen days later, the trial court conducted a hearing on Appellant’s Amended Motion to Dismiss Court-Appointed Counsel and Replace with New Counsel.  The trial court denied the motion and after hearing evidence on sentencing, assessed Appellant’s punishment at fourteen years of imprisonment.  In one issue, Appellant insists that his constitutional right to counsel was violated when the trial court allowed his court appointed trial counsel to continue to represent him during the hearing on his motion to replace that counsel.  We affirm.

Background

            Appellant was indicted for an aggravated assault on Melissa Hortman on March 26, 2006 by hitting her with his hands and a machete and by threatening to kill her while exhibiting a deadly weapon, a machete, during the assault.  Counsel was appointed for Appellant on April 26, 2006. On May 10, 2006, Appellant’s counsel filed a motion for a psychiatric examination to determine competency, complaining that Appellant did not appear to have a rational or factual understanding of the proceedings against him or the present ability to consult with his lawyer. Throughout the 242 days Appellant remained in jail before sentencing, he was treated with various medications for his psychiatric condition.  On October 24, 2006, the trial court granted Appellant’s motion for a psychiatric examination, and ordered Dr. Tynus McNeel to conduct an examination to determine if Appellant was competent to stand trial.

            On November 9, 2006, Dr. McNeel advised the court that Appellant probably suffered from Bipolar Disorder and that he was currently taking psychoactive medication in the form of Lithium and Seroquel.  Appellant had been hospitalized at the Rusk State Hospital on two separate occasions and had been hospitalized briefly in 2005 and 2006 at the East Texas Medical Center Behavioral Health Center in Tyler.  Nevertheless, Dr. McNeel determined that Appellant was competent to stand trial but that the continued taking of psychoactive medication “is likely to be necessary to maintain [Appellant’s] competency.”

            On January 22, 2007, Appellant filed four pro se motions including a Motion to Replace Court-Appointed Counsel and Replace with New Counsel.

            On January 31, 2007, Appellant pleaded guilty to the offense without the benefit of a plea bargain. He responded appropriately to all the admonitions of the trial court telling the court that he understood the charges against him and the range of punishment for the offense, that he was aware of his right to a jury trial and that he was pleading guilty voluntarily, because he was guilty and for no other reason.  He assured the court that his counsel had thoroughly explained to him the various documents he had signed.  When asked if he had been able to confer with his attorney about the case, Appellant answered, “Without a doubt.”

            During the plea hearing, the trial court noted that Appellant had filed a pro se motion for a court appointed psychiatric expert witness on January 22, 2007.  Appellant’s counsel told the court that Appellant had wanted to offer at the guilt-innocence stage testimony regarding his psychiatric condition and the effect of a change in his medications shortly before the crime.  Counsel told the court that such evidence would be offered as mitigation evidence at the punishment stage.  Appellant stated that he understood his counsel’s explanation and was satisfied with it.  The court made no ruling on the motion.  The trial court did not note, nor did Appellant raise, the other three pro se motions filed by Appellant on January 22, 2007.

            On February 15, 2007, Appellant filed a pro se motion to amend his prior motion to dismiss court appointed counsel and replace with new counsel.  The motion asserted (1) that his counsel allowed him to plead guilty without a plea agreement knowing that he had not taken his medications when he entered his plea; (2) that his counsel allowed him to review only a part of the evidence against him; (3) that his counsel refused to call five witnesses who could testify to Appellant’s mental state both before and after the incident; and (4) that his counsel became so enraged that Appellant was in fear of physical harm.

            At the sentencing hearing, Appellant’s counsel told the trial court, “My client filed a motion yesterday to fire me and withdraw his guilty plea. . . .”  The court then warned Appellant that if he testified regarding the motion, he would be subject to the penalty for perjury and could be cross examined by the State’s attorney.  Appellant insisted on testifying against his counsel’s advice. The trial court allowed Appellant’s counsel to conduct the questioning.  Appellant denied that he was guilty although he conceded having slapped the victim twice during a “domestic assault.”  He denied ever having a machete.  He said he had given his lawyer a list of sixty-five witnesses, at least fifty of whom were police officers.  He told the court that his counsel never came to see him.  He said he was coerced into signing the plea papers and waiving a jury trial by his counsel’s insistence that he would get twenty years and die in the penitentiary unless he pleaded guilty.  On cross examination, Appellant denied any recollection of pleading guilty to aggravated assault.

            Appellant’s counsel told the court that he had visited with Appellant on several occasions, both alone and with the investigator appointed for the defense.  He had reviewed with Appellant the photos and audiotapes obtained through discovery.  He denied threatening Appellant.

            The trial court reviewed the transcript of the plea hearing in which Appellant unequivocally testified that there was no medication affecting him or impairing his ability to understand the court proceedings, and that he was pleading guilty voluntarily, waiving a jury trial, and stipulating the evidence against him after a thorough explanation by his attorney.  The trial court then denied Appellant’s pro se motion to withdraw his plea of guilty and to replace his court appointed counsel.

            Appellant presented the testimony of two psychiatrists who had treated him and the testimony of a neighbor.  Appellant had two prior felony convictions and eleven misdemeanor convictions.  The trial court assessed punishment at fourteen years.

Replacement of Appointed Counsel

            In his sole issue, Appellant contends that his constitutional right to counsel was violated when the trial court allowed his court appointed trial counsel to continue to represent him during the hearing on his motion to replace that counsel.

Standard of Review and Applicable Law

            The trial court’s ruling on a defendant’s request for a change of appointed counsel is reviewed for abuse of discretion.  See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Burgess v. State, 816 S.W.2d 424, 428-29 (Tex. Crim. App. 1991).

            The right to counsel may not be manipulated so as to obstruct the judicial process or to interfere with the fair administration of justice.  King, 29 S.W.3d at 566; Burgess, 816 S.W.2d at 428-29.  The trial court has no duty to search for counsel agreeable to the defendant.  King, 29 S.W.3d at 566.  When, however, a defendant raises an apparently substantial complaint about appointed counsel, the trial judge should make a thorough inquiry into the reasons for the defendant’s dissatisfaction.  Melendez v. Salinas, 895 S.W.2d 714, 715 (Tex. App.–Corpus Christi 1994, orig. proceeding).  A proper showing of an appointed counsel’s actual conflict of interest will entitle the defendant to new counsel.  Garner v. State, 864 S.W.2d 92, 98-99 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d).  An actual conflict of interest exists if counsel is required to make a choice between advancing his client’s interests in a fair trial or advancing other interests to the detriment of his client’s interest.  Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). A defendant who files a motion to dismiss appointed counsel has the burden of proving that he is entitled to a change of counsel.  Watson v. State, 95 S.W.3d 342, 344 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d).  Personality conflicts and disagreements concerning trial strategy are typically not valid grounds for the replacement of appointed counsel.  King, 29 S.W.3d at 566.

Discussion

            The trial court allowed Appellant’s court appointed counsel to conduct the direct examination of Appellant in support of Appellant’s motion to replace counsel.  Counsel’s exasperation with his client is evident from the record.  In response to Appellant’s answer to one of his questions, Appellant’s counsel said, “Mr. Bates, that’s a straight up lie.  Do you want to take that back?  You just committed perjury.”

            Appellant contends that the tone of his counsel’s entire interrogation was hostile, and that his counsel’s questions were framed to harass and intimidate him, not elicit the truth.  Appellant argues that by allowing the counsel that he was seeking to remove to conduct the direct examination, the trial court abdicated its responsibility under Rule 611 to exercise control over the mode of interrogating witnesses in order to make the interrogation effective for the ascertainment of truth and protect witnesses from harassment or undue embarrassment.  See Tex. R. Evid. 611(a).  Appellant maintains that his pro se motion to change counsel raised the issue of a conflict of interest between the two of them and that his counsel’s hostile interrogation conclusively established that an actual conflict of interest existed. Appellant argues that the trial court should not have allowed Appellant’s  counsel to conduct the direct examination, because if called upon to refute Appellant’s claim that he was coerced into pleading guilty, counsel would be furnishing testimony substantially adverse to his client’s interest.  Appellant insists the trial court should have appointed new counsel for the hearing on the motion or allowed him to represent himself after appropriate warnings regarding the perils of self-representation.  The trial court’s failure to do so enabled appointed counsel “to maneuver Appellant away from making a complete record regarding his pro se motion,” and was the equivalent of total deprivation of his Sixth Amendment right to counsel.

            Read in its entirety, appointed counsel’s direct examination of Appellant did attempt to elicit the nature and extent of Appellant’s complaints about his representation.  Despite a tone of exasperation and perhaps hostility, it gave Appellant a fair opportunity to tell the court why he believed he had been poorly represented and why he should have a new lawyer.  The conflict Appellant describes arises from a conflict between them over trial strategy, not from counsel’s representation of an adverse interest. It is not a conflict envisioned by the cases in which conflicts of interest were found to require appointment of new counsel.  See Garner, 864 S.W.2d at 98-99 and cases therein cited.  If personality conflicts and disagreements over strategy and tactics warranted appointment of new counsel, a trial court’s granting of a motion to replace counsel would be almost automatic, inevitably causing delay and obstructing orderly procedure.

            Appellant also asserts that the trial court should have appointed special counsel for the limited purpose of assisting him in showing cause for change of counsel. Alternatively, Appellant contends the trial court should have allowed him the opportunity to represent himself. Appellant has cited no authority in support of this argument, and we are aware of none.  Id. at 99.

            Appellant was not denied his Sixth Amendment right to counsel.  The trial court did not abuse its discretion in denying Appellant’s motion to replace counsel.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                    BILL BASS   

                                                                                                            Justice

Opinion delivered April 30, 2008.

Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)