William Botello v. State ( 2013 )

NUMBERS 13-12-00786-CR AND 13-13-00147-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILLIAM BOTELLO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Rodriguez
Appellant William Botello challenges his convictions for burglary of a vehicle,
enhanced to a state jail felony, see TEX. PENAL CODE ANN. § 30.04 (West 2011), and for
burglary of a habitation, enhanced to a first-degree felony. See id. § 30.02 (West 2011).
Botello pleaded guilty to both offenses without a plea agreement. After the State
presented evidence of prior offenses, the trial court assessed punishment at two years in
state jail and twenty years in prison, with the sentences to run concurrently. By two
issues, Botello contends that the trial court erred when it failed (1) to set a hearing or
make an adequate inquiry regarding Botello’s request for a new, appointed counsel; and
(2) to grant Botello’s request for new counsel. We affirm.1
I. APPOINTED COUNSEL
By his first issue, Botello asserts the trial court erred in failing to set a hearing on
his pro se correspondence filed with the district clerk on September 28, 2012 and October
16, 2012, approximately three months before trial. 2 In his correspondence, Botello
complained of ineffective assistance of counsel and stated that he wanted to “fire” his
attorney. We construe this correspondence broadly as a motion to dismiss appointed
counsel and to appoint substitute counsel.
By his second issue, Botello contends that the trial court erred in failing to grant his
request for new counsel. In response, the State asserts that Botello failed to establish
that he was entitled to a change of counsel because the record does not reflect that the
trial court was aware of his dissatisfaction with his court-appointed attorney. And even if
the court was aware of his dissatisfaction, the State argues that there is no evidence in
the record substantiating Botello’s complaints.
A. Applicable Law and Standard of Review
If a defendant is displeased with his appointed counsel, he must bring the matter to
1
This Court assigned separate cause numbers and later granted Botello’s motion to consolidate
the appeals for purposes of briefing. We will now address the appeals in one opinion.
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
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the court's attention, which means more than merely filing a motion to dismiss counsel.
Malcom v. State, 628 S.W.2d 790, 791–92 (Tex. Crim. App. 1982) (explaining that the trial
court is under no duty to sua sponte hold a hearing); Garner v. State, 864 S.W.2d 92, 100
(Tex. App.—Houston [1st Dist.] 1993, pet. ref'd). The defendant bears the burden of
making the trial court aware of his dissatisfaction with counsel, stating the grounds for the
dissatisfaction, and substantiating the grounds. Hill v. State, 686 S.W.2d 184, 187 (Tex.
Crim. App. 1985) (en banc); see also Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim.
App. 1977) (holding that a defendant bears the burden of showing adequate cause for the
appointment of a different attorney). Even when the trial court is aware of a defendant’s
dissatisfaction with his counsel, when the defendant does not request a hearing, the trial
court does not err in failing to conduct one. See Malcom, 628 S.W.2d at 792; Stovall v.
State, 480 S.W.2d 223, 224 (Tex. Crim. App. 1972); Reddic v. State, 976 S.W.2d 281,
282–83 (Tex. App.—Corpus Christi 1998, pet. ref’d).
B. Discussion
The motion Botello filed did not contain a request for a hearing. No oral or written
motion for a hearing or for a request for a ruling appears in the record. In fact, there is
nothing in the record to indicate the trial judge was made aware of Botello's dissatisfaction
with his counsel, the grounds for such dissatisfaction, or his desire to have new counsel
appointed. See Hill, 686 S.W.2d at 187; see also Thomas, 550 S.W.2d at 68. Botello,
himself, concedes on appeal that “[t]he trial court may not have even been aware of his
concerns.”
Instead, during the plea hearing, when asked if he had the opportunity to speak
with his attorney regarding any defenses he might have and if he was satisfied with
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counsel’s services, Botello replied, “Yes, ma’am.” Botello also acknowledged that he
initialed certain admonishments, one of which asked whether he had sufficient time with
his lawyer, was satisfied with his lawyer’s representation, and had no complaints against
his lawyer or objections to his representation.3 Also, State Exhibits 1 and 2, Botello’s
judicial confession and stipulation in each case, show that Botello signed a document that
included the following: “My attorney has investigated the facts and circumstances
surrounding my case, discussed those with me, and advised me of possible defenses. I
am satisfied with my attorney’s representation.” None of the participants at the hearings
referenced the motion or Botello’s complaints; the record is void of any discussion
regarding the subject matter of Botello’s motion or his apparent desire for a hearing. And
though he testified during the hearing, Botello, himself, did not mention his
correspondence or his complaints and did not request a hearing on his motion.
Nonetheless, even were we to conclude that the trial court was aware of his
complaints; there is nothing in the record substantiating those complaints. See Hill, 686
S.W.2d at 187. Botello contends that his letters “met his burden of ‘entitlement to a
change of counsel.’” Yet the only evidence in the record indicates that Botello was
satisfied with counsel’s services. Botello’s unsubstantiated allegations in his motion do
not satisfy his burden of proving that he was entitled to a change of counsel. See King v.
State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) (“[A]lthough appellant was given the
opportunity to expand on his reasons for dissatisfaction with counsel, appellant failed to
do so and simply referred the trial court to his letters.”); Maes v. State, 275 S.W.3d 68,
71–72 (Tex. App.—San Antonio 2008, no pet.) (“[W]hen the court directed its attention to
3
We note that Botello initialed this section in one case, but not in the other.
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defendant’s motion, he only offered a vague expression of dissatisfaction with his
court-appointed counsel.”); Warren v. State, 98 S.W.3d 739, 745 (Tex. App.—Waco
2003, pet. ref’d) (explaining that a mere allegation of a conflict of interest is insufficient);
Villegas v. State, 791 S.W.2d 226, 232 (Tex. App.—Corpus Christi 1990, pet. ref’d) (“The
record indicates that appellant did not offer any evidence in support of his position that the
attorneys appointed to represent him should be dismissed.”).
In sum, Botello did not request a hearing. See Malcom, 628 S.W.2d at 792;
Stovall, 480 S.W.2d at 224; Reddic, 976 S.W.2d at 282–83. The record does not reflect
that the trial court was aware of Botello's dissatisfaction with his court-appointed counsel
and his desire for new counsel. See Hill, 686 S.W.2d at 187; see also Thomas, 550
S.W.2d at 68. And even if the court was aware of his dissatisfaction, there is no
evidence in the record substantiating Botello’s grounds for such dissatisfaction. See Hill,
686 S.W.2d at 187. We overrule Botello’s first and second issues.
II. CONCLUSION
We affirm the judgments of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
8th day of August, 2013.
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