CARLOS NEAL BROWN v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Myers

Carlos O'Neal Brown was convicted of aggravated robbery and sentenced to thirty years in prison.   In two issues, he argues that the evidence was insufficient to show he knew a deadly weapon would be used in the commission of the robbery, and that the trial court failed to allow appellant to make a record showing he had good cause to ask the court to remove and replace his appointed trial counsel.   We affirm.

Background and Procedural History

On the night of June 6, 2009, Katrina Parkman, an assistant manager at a Sonic Drive–In, finished her shift shortly before midnight.   After work, she met a friend, Dadrianna Turner, and they drove together to Pleasant Grove so that Parkman could pay her rent.   Parkman did not want to drive by herself because the hour was late and she would be carrying a large amount of money after cashing her paycheck.

After cashing the paycheck at approximately 2:00 o'clock in the morning, Parkman drove to her Pleasant Grove apartment complex in a blue Crown Victoria that she owned.   Turner was in the passenger seat.   At the complex, Turner got out of the car, placed Parkman's rent money in the night deposit box, and returned to the car.   But when Parkman tried to leave, another car blocked her way.   Parkman recalled that the other car, an Impala, had a “brownish or tan” color, while Turner said it was gray.

Two men got out of the other car.   One man pulled out a gun and approached Parkman on the driver's side of the car.   He wore a “hoodie” that obstructed his face.   A second man approached Turner on the passenger side.   This second man put on white “garden” gloves as he approached the car.   He also wore a hat, but his face was visible.

Parkman opened her door.   The man carrying the gun told Parkman, “Get out and leave everything in there.”   Parkman replied, “[O]kay boo, just don't shoot me.”   The man who wore the white “garden” gloves opened the passenger door and told Turner to get out of the car.   He did not appear to have a gun.

Both women complied.   The first man got in Parkman's car, closed the door, placed the gun on his lap, and drove away.   The second man drove away in the Impala.

Parkman and Turner used the intercom system that was located at the apartment complex's entrance and found a resident who allowed them use a telephone to call the police.   They contacted the police and waited approximately ten minutes for a response, then walked to nearby Loop 12 and alerted a police officer.   After making statements to the police, Parkman went to her sister's house.   Turner went home.   Parkman did not recall the Impala's license plate number and never recovered her car or belongings.   Police officers searched the area but did not find a firearm that could be linked to the offense.   Later, Dallas police detective Reginald G. Jackson, who was assigned the case, received an anonymous telephone call that identified appellant as being involved in the offense.   Jackson developed a photographic lineup based on that call.

Police asked Parkman to come the police station because they had a suspect.   Parkman called Turner, and they went to the police station together on July 31, 2009.   Parkman could not identify either of the men that robbed her.   Turner reviewed a photographic lineup of six black men and identified appellant as the second man.   The other man was never identified.

The jury convicted appellant of aggravated robbery with a deadly weapon as charged in the indictment, which included two enhancement paragraphs for prior felony convictions.   The court sentenced appellant to thirty years in prison.

Discussion

Sufficiency

In his first issue, appellant argues the evidence is insufficient to support a finding beyond a reasonable doubt that he knew a deadly weapon would be used or exhibited during the commission of the robbery.   We examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 899–900 (Tex.Crim.App.2010) (plurality op.);  Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).   We defer to the jury's determinations of the witnesses' credibility and the weight to be given to their testimony because the jury is the sole judge of those matters.   Brooks, 323 S.W.3d at 899–900;  Laster v. State, 275 S.W.3d 512, 517–18 (Tex.Crim.App.2009).

Appellant was convicted of aggravated robbery as a party.   A person commits robbery if in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003).   The offense is elevated to aggravated robbery if, during its commission, the person uses or exhibits a deadly weapon.   Id. § 29.03(a)(2).   A person is criminally responsible for an offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.   Id. § 7.02(a).

Circumstantial evidence may be used to establish party status.  Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994);  Escobar v. State, 28 S.W.3d 767, 774 (Tex.App.—Corpus Christi 2000, pet. ref'd).   In determining whether the accused participated as a party, this Court may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant that show an understanding of a common design to commit the prohibited act.   See Ransom, 920 S.W.2d at 302;  Escobar, 28 S.W.3d at 774.   The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of their common purpose.  Escobar, 28 S.W.3d at 774 (citing Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986)).   Evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other acts.   See Ransom, 920 S.W.2d at 302;  Escobar, 28 S.W.3d at 774.

Viewed under the appropriate standard, the evidence shows that appellant and another man were in an Impala that blocked Parkman's vehicle as she tried to leave her apartment complex, and both appellant and the other individual got out of the Impala and approached different sides of Parkman's car.   As the first man approached the driver's side and pulled out a gun, appellant walked toward the other side of the vehicle and put on white gloves.   They ordered the women to get out of the car.   The first man got into Parkman's car and appellant followed him in the Impala.   The jury could have reasonably concluded from the evidence presented that appellant, by his actions, knew of the gun and intended to promote or assist in the aggravated robbery, thereby encouraging or aiding in the commission of the offense.   Therefore, the jury could have found the essential elements of aggravated robbery as a party beyond a reasonable doubt.   The evidence is sufficient to support the conviction, and we overrule appellant's first issue.

Removal and Replacement of Court–Appointed Counsel

In his second issue, appellant argues that the trial court erred by not allowing him to make a record showing he had good cause to ask the court to remove and replace his court-appointed counsel.

On the morning after voir dire, appellant asked the trial court to remove his appointed attorney and appoint new counsel.   After initially stating that his attorney had only visited him two weeks before trial and “asked me about my alibi,” appellant added, “I don't feel comfortable going to trial with him because I․”  The court interrupted appellant, stating, “You could have told me that before.   We have got a jury here, Mr. Brown;  do you understand that?”   Appellant said that he understood, after which the court told him that he could “take that up later on” or he could “take it up with the Bar;  however you want to handle it.   We're going to go ahead and proceed here today.”   The court also explained:

We have now got twelve jurors that are seated here and ready to hear your case, and we're going to proceed with it.   I think you can understand why that would be a problem to stop this case in the middle and start over.

Appellant replied, “No. I think you should understand why I don't feel comfortable with him.”   The court told appellant that “you're just trying to delay things.”   Appellant said he was “not trying to delay.”   The court responded:  “Yes, you are, because we can't stop this case, Mr. Brown, in the middle.   We're right now getting ready to try this case.”   The record then reads in part as follows:

THE DEFENDANT:  I asked [defense counsel] about the case a few minutes earlier—earlier today.   He came out here and told me—umm—that the D.A. was thinking about—me and him had heated words because I said that—I was asking him about a plea bargain yesterday and then he came back in here and said that the D.A. said, no, about the plea.

THE COURT:  If that's what the D.A. said, he can't tell you anything else.   If there is no plea bargain—I don't know whether there is a plea bargain or not.   I'm not involved in that part.   The Court doesn't get involved with plea bargains;  did you know that?

THE DEFENDANT:  But you should see where I'm coming from.

THE COURT:  Right.   Yeah, but why didn't you tell me about that yesterday?

THE DEFENDANT:  Because this just happened.   This just occurred between me and [defense counsel].

THE COURT:  But you've known since December this thing about filing motions.

The court turned its attention to other pretrial matters, asking defense counsel, “[D]o you have anything else that you want to do for the [r]ecord that you told me about earlier?”   Defense counsel requested a hearing on the out-of-court identification of appellant.   The court then heard and denied appellant's motion to suppress, after which the State gave its opening statement.

We review a trial court's ruling whether to grant a motion to dismiss appointed counsel under an abuse of discretion standard.  King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App.2000).   A trial court has no duty to search for counsel agreeable to a defendant.  Id. “A criminal defendant is not entitled to appointed counsel of choice.”  Dunn v. State, 819 S.W.2d 510, 520 (Tex.Crim.App.1991).   Personality conflicts and disagreements concerning trial strategy are usually not valid grounds for withdrawal.  Maes v. State, 275 S.W.3d 68, 71 (Tex.App.—San Antonio 2008, no pet.).

A criminal defendant is entitled to the effective assistance of counsel, but the constitutional protection cannot be used to obstruct the orderly procedure in the courts or interfere with the fair administration of justice.  Dunn, 819 S.W.2d at 520.   Thus, a criminal defendant may not wait until the day of trial to demand different counsel or request that counsel be dismissed so the defendant may retain other counsel.  Robles v. State, 577 S.W.2d 699, 704 (Tex.Crim.App.1979).

A defendant bears the burden of making the court aware of his dissatisfaction with counsel, stating his grounds for the dissatisfaction, and offering evidence in support of the complaint.  Maes, 275 S.W.3d at 71;  see Stevenson v. State, 255 S.W.3d 652, 655–56 (Tex.App.—Fort Worth 2008, pet. ref'd).   The Texas Code of Criminal Procedure authorizes the replacement of counsel for good cause.  Tex.Code Crim. Proc. Ann. art. 26.04(j)(2).   Article 26.04(j) does not provide a specific procedure for determining good cause.   See id.

Appellant argues the trial court erred by not allowing him to make a record of the reasons for his request to have new counsel appointed on the day of trial.   Appellant suggests the court should have, and did not, (1) instruct appellant that he did not have the right to choose his own counsel and that substitution of court-appointed counsel would be made only if good cause was shown;  (2) allow appellant to make a record regarding his claim of good cause;  and (3) make a finding on the record concerning the claim of good cause.

The case on which appellant principally relies, Dixon v. State, No. 11–03–00172–CR, 2004 WL 868185, at *3 (Tex.App.—Eastland April 22, 2004, no pet.) (not designated for publication), does not support his argument.   In Dixon, the trial court instructed an appellant that he did not have the right to pick and choose his court-appointed counsel and that substitution of court-appointed counsel would be made only if good cause was shown.  Id. The trial court held that appellant had not established good cause.  Id. Appellant decided to proceed to trial with the same appointed counsel.  Id. The court of appeals concluded the record did not support appellant's allegation that the trial court abused its discretion by failing to appoint new counsel or that it erred by proceeding to trial.  Id. The court's unpublished opinion applied the well-settled legal principles noted earlier.   It did not set forth specific procedures that courts must follow regarding article 26.04.   We also note that appellant has not cited, nor have we found, binding authority showing that courts must follow specific procedures or make certain findings when applying article 26.04(j).

Appellant alleges that the court would not allow him “to clearly state the history of arguments and disagreements he had with his attorney,” and that the court kept him “from explaining what exactly occurred that morning that led to [a]ppellant to seek a plea bargain with the State.”   Yet the record actually shows that appellant's only complaint regarding trial counsel was that he failed to secure a plea bargain agreement with the State.   The record also shows that appellant's trial counsel told him the State did not want to reach a plea agreement with appellant.   The trial court explained the procedural problems associated with appointing new counsel on the day of trial, after the jury had been selected, and that appellant's complaint could have, and should have, been raised at an earlier point in the proceedings.   The court limited appellant's argument and then continued with other pretrial matters.   Trial courts are vested with broad discretion to manage and control their dockets in order to promote the orderly and efficient administration of justice while protecting the statutory and constitutional rights of all persons coming before the court.   See Taylor v. State, 255 S.W.3d 399, 402 (Tex.App.—Texarkana 2008, pet. ref'd).   No abuse of discretion has been shown.   We overrule appellant's second issue.   We affirm the trial court's judgment.

LANA MYERS JUSTICE