Nos CR & CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. ANTHONY CHARLES GARRETT, Appellant

Transcription

1 Nos CR & CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 8/10/11 14:00 Lisa Matz, Clerk ANTHONY CHARLES GARRETT, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 265th Judicial District Court of Dallas County, Texas Cause Nos. F QR & F QR The Honorable Mark Stoltz, Judge Presiding BRIEF FOR APPELLEE, THE STATE OF TEXAS Counsel of Record: Craig Watkins G. Brian Garrison Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas (214) (telephone) (214) (fax) Brian.Garrison@dallascounty.org ORAL ARGUMENT IS REQUESTED ONLY IF APPELLANT IS ALSO REQUESTING ORAL ARGUMENT

2 TABLE OF CONTENTS TABLE OF INTERESTED PERSONS... ii TABLE OF AUTHORITIES... iii SUMMARY OF THE CASE... 1 ISSUE PRESENTED... 2 STATEMENT OF THE FACTS... 2 SUMMARY OF THE ARGUMENTS... 4 ARGUMENTS AND AUTHORITIES... 5 I. The State s response to Appellant s first point of error: The trial court did not abuse its discretion in denying Appellant s motion for new trial... 5 A. Standard of review... 5 B. Appellant failed to establish the existence of an actual conflict of interest... 5 PRAYER... 8 CERTIFICATE OF SERVICE... 8 i

3 TABLE OF INTERESTED PERSONS Appellant Appellant s Counsel at Trial Appellant s Counsel on Appeal State s Counsel at Trial State s Counsel on Appeal Anthony Charles Garrett Bill Cox 1525 Elm St., Ste Dallas, Texas Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas Stephanie Mitchell Schwannah McCarthy Assistant District Attorneys Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas G. Brian Garrison Assistant District Attorney Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas ii

4 TABLE OF AUTHORITIES TEXAS STATUTES TEX. PENAL CODE ANN (d)... 7 TEXAS COURT OF CRIMINAL APPEALS CASES Acosta v. State, 233 S.W.3d 349 (Tex. Crim. App. 2007)... 6 King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000)... 5, 6 Lyles v. State, 850 S.W.2d 497 (Tex. Crim. App. 1993)... 5 Malcolm v. State, 628 S.W.2d 790 (Tex. Crim. App. 1982) (panel op.)... 6 Monreal v. State, 947 S.W.2d 559 (Tex. Crim. App. 1997)... 6 Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997)... 5 Thomas v. State, 550 S.W.2d 64 (Tex. Crim. App. 1977)... 5 Webb v. State, 533 S.W.2d 780 (Tex. Crim App. 1976)... 6 TEXAS COURT OF APPEALS CASES Calahan v. State, No CR, 2011 Tex. App. LEXIS 4802 (Tex. App. Dallas Jun. 22, 2011, no pet. h.) (not designated for publication)... 5 Carroll v. State, 176 S.W.3d 249 (Tex. App. Houston [1st Dist.] 2004, pef. ref d)... 5, 6 Garner v. State, 864 S.W.2d 92 (Tex. App. Houston [1st Dist.] 1993, pet. ref d)... 5 Maes v. State, 275 S.W.3d 68 (Tex. App. San Antonio 2008, no pet.)... 6 iii

5 TO THE HONORABLE COURT OF APPEALS: The State of Texas respectfully submits the instant brief in response to the brief of Appellant, Anthony Charles Garrett ( Appellant ), on behalf of Craig Watkins, the Criminal District Attorney of Dallas County, Texas. This is an appeal from the 265th Judicial District Court of Dallas County, Texas, cause nos. F QR and F QR. SUMMARY OF THE CASE A grand jury charged Appellant by two indictments with the offenses of aggravated assault with a deadly weapon against the members of his household. 1 In each case, Appellant entered an open plea of guilty, judicially confessed, and stipulated to the State s evidence. 2 The trial court accepted Appellant s pleas and sentenced him, in each case, to imprisonment for a period of twenty-five years in the Texas Department of Criminal Justice Institutional Division. 3 The trial court ordered Appellant to serve the sentences concurrently. 4 Appellant timely filed notice of appeal. 5 1 C.R.-1: 5; C.R.-2: 4. 2 C.R.-1: 29-33; C.R.-2: C.R.-1: 34-35; C.R.-2: C.R.-1: 34-35; C.R.-2: C.R.-1: 39; C.R.-2: 23. 1

6 ISSUE PRESENTED I. Whether, under Texas law, the trial court abused its discretion in denying Appellant s motion to substitute counsel. STATEMENT OF THE FACTS Appellant s case was initially set for a jury trial, and Appellant had entered pleas of not-guilty in each cause. 6 When the trial court inquired whether the parties were ready, the following exchange took place: Mr. Cox: Not ready. The Court: Will you state why you re not ready. Mr. Cox: I m not ready. I have a complete failure to communicate with my client. My client does not want me to be his lawyer any further, he does not want to proceed with a jury trial. He s not listened to or wanted to understand my advice. The Court: So as far as your point of view, have you investigated this case? Mr. Cox: Yes. The Court: Have you gotten discovery from the State? Mr. Cox: Yes. The Court: Other than your client s lack of cooperation, are you ready to try this case. Mr. Cox: The only other thing, Judge, I ll make note to the Court, as I made earlier, a doctor has seen Mr. Garrett. He told me he had some psychological problems, and it came up last night that he may have some 6 R.R.-2:

7 records at a hospital that I have not investigated and I wish I had in front of me to use for mitigation if it s a punishment issue. 7 The report established that Appellant was competent to stand trial. 8 The Court: All right. Mr. Garrett, your lawyer has announced ready for trial. Appellant: I m not ready sir. I haven t been able to prepare nothing. The first time that me and Mr. Cox ever just talked to each other, other than last night about 8:20 or so. So I don t know nothing about him, he don t know nothing about me, didn t file nothing, show me nothing. He ain t file no motions or nothing. Mr. Cox: I did file motions. Appellant: I ain t got no copy of it. He told me nothing. This is the first time he talking to me. So I don t feel comfortable with him. 9 Thereafter, the State offered State s Exhibit 1, a jail letter from Appellant to his victims, written six months prior to trial, in which he stated that he had met with his attorney, that he knew who his attorney was, and that he was going to pretend to need medical help and psychiatric help in order to avoid having to go to trial or being found competent. 10 In the letter, Appellant urged his victims to aid in his deception. 11 Appellant alleged that he did not write the letter. 12 The trial court denied Appellant s motion for new counsel R.R.-2: R.R.-2: 7. 9 R.R.-2: R.R.-2: 9-10; State s Ex State s Ex R.R.-2: R.R.-2: 11. 3

8 SUMMARY OF THE ARGUMENTS This Court should overrule Appellant s sole point of error because Appellant has failed to establish that he was entitled to substitute his appointed counsel. Appellant has presented no evidence of the existence of an actual conflict of interest, and Appellant s assertions of general dissatisfaction with Mr. Cox were insufficient to warrant the substitution of appointed counsel, particularly when taken in conjunction with Appellant s proven intent to feign medical and psychological problems in order to bamboozle the court. Accordingly, this Court should overrule Appellant s sole point of error and affirm the judgment of the trial court. 4

9 ARGUMENTS AND AUTHORITIES I. The State s response to Appellant s first point of error: The trial court did not abuse its discretion in denying Appellant s motion for new trial A. Standard of review An appellate court reviews a trial court s ruling on a motion to substitute counsel under an abuse of discretion standard. 14 The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court s action; rather, it is a question of whether the trial court acted without reference to any guiding rules and principles or acted arbitrarily and unreasonably. 15 As long as the trial court s ruling is within the zone of reasonable disagreement, there is no abuse of discretion, and the trial court s ruling will be upheld. 16 B. Appellant failed to establish the existence of an actual conflict of interest A defendant does not have a right to his own choice of appointed counsel. 17 Nor is a trial court required to search for counsel agreeable to the defendant. 18 There are, however, certain circumstances under which a defendant may, upon a proper showing, be entitled to substitute his counsel. 19 For example, a defendant is entitled to substitute counsel upon a proper showing of appointed counsel s actual conflict of interest. 20 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 14 See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). 15 Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). 16 Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). 17 Calahan v. State, No CR, 2011 Tex. App. LEXIS 4802, at *8 (Tex. App. Dallas Jun. 22, 2011, no pet. h.) (not designated for publication) (citing see Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977)). 18 King, 29 S.W.3d at See Garner v. State, 864 S.W.2d 92, 98 (Tex. App. Houston [1st Dist.] 1993, pet. ref d). 20 See id. at 98-99; Carroll v. State, 176 S.W.3d 249, 255 (Tex. App. Houston [1st Dist.] 2004, pef. ref d). 5

10 of his client s interest. 21 The defendant bears the burden of proving he is entitled to substitute his counsel. 22 Vague expressions of dissatisfaction are generally insufficient to carry the defendant s burden. 23 In addition, personality conflicts and disagreements concerning trial strategy are typically not valid grounds for the substitution of appointed counsel. 24 In the instant case, this Court should overrule Appellant s sole point of error because Appellant has failed to present any evidence of an actual conflict of interest necessary to substitute appointed counsel. 25 Appellant asserts that Mr. Cox s alleged failure to investigate Appellant s medical records and to keep Appellant informed establishes that Mr. Cox s interest in going to trial prevailed over the interests of Appellant. 26 Appellant s arguments are meritless, particularly in light of the fact that Appellant entered guilty pleas to both offenses, as he desired to do. 27 Mr. Cox s alleged failure to examine Appellant s medical records, which may or may not have existed and, assuming that they did exist, may or may not have had mitigating value, is in no way indicative of an overriding interest in going to trial. Moreover, any investigation likely would have been fruitless. 28 Appellant was deemed competent to stand trial, 29 and assuming that the records did exist and assuming 21 Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). 22 See Malcolm v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. 1982) (panel op.) (citing Webb v. State, 533 S.W.2d 780, 784 n.3 (Tex. Crim App. 1976)). 23 See Maes v. State, 275 S.W.3d 68, (Tex. App. San Antonio 2008, no pet.). 24 King, 29 S.W.3d at 566; see also Carroll, 176 S.W.3d at R.R.-2: Appellant s Br R.R.-2: R.R.-2: 7. 6

11 further that the records had mitigating value, Appellant was not harmed by their absence at trial. Appellant was convicted after pleading guilty to two second degree felonies, both of which were enhanced by two prior, felony burglary convictions. 30 Under the applicable law, the minimum sentence that Appellant could have received was twentyfive years, which is exactly what the trial court assessed. 31 Thus, Appellant was not harmed by the absence of the alleged records at trial because any mitigating value the records had would not have benefited Appellant. 32 Appellant s assertion that Mr. Cox failed to keep him reasonably informed is, likewise, meritless, and at most, evidences a general dissatisfaction with Mr. Cox s representation, which is insufficient to warrant the substitution of appointed counsel. In reality, Appellant s dissatisfaction and failure to communicate with Mr. Cox was nothing more than a ruse designed to bamboozle the court, and to this end, Appellant was willing to go as far as a claim of demonic possession. 33 In stark contrast to Appellant s statements, Mr. Cox, a seasoned criminal attorney, had met with Appellant six months prior to trial. 34 In light of this, Appellant s unsupported assertions, both at trial and on appeal, of Mr. Cox s failure to keep him informed are dubious at best. As Appellant has failed to establish that he was entitled to substitute his counsel, this Court should not hesitate to overrule Appellant s point of error and affirm the judgment of the trial court. 29 R.R.-2: 8; State s Ex C.R.-1: 5; C.R.-2: TEX. PENAL CODE ANN (d). 32 See ID. 33 R.R-2: 8-10; State s Ex R.R.-2: 7; State s Ex. 1. 7

12 PRAYER The State of Texas prays that this Court will overrule Appellant s sole point of error and affirm the judgment of the trial court. Respectfully submitted, Craig Watkins G. Brian Garrison Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas (214) (telephone) (214) (fax) Brian.Garrison@dallascounty.org CERTIFICATE OF SERVICE I hereby certify that a true copy of this Appellee s Brief has been served on Appellant s Counsel on Appeal, the Hon. Brian W. Portugal, Assistant Public Defender, Dallas County Public Defender s Office, 133 N. Riverfront Blvd., LB 2, Dallas, Texas by at Brian.Portugal@dallascounty.org and by hand delivery on this the 10th day of August, G. Brian Garrison 8