Demetrius Williams, Appellant, v. The State of Texas, Appellee. (2016)

MEMORANDUM OPINION

Appellant Demetrius Williams appeals his conviction for aggravated assault, a second-degree felony enhanced by two prior felony convictions.  See Tex. Penal Code Ann. §§ 12.42, 22.02 (West, Westlaw through 2015 R.S.).  A jury returned a verdict of guilty, and the trial court assessed punishment at forty years' imprisonment.  By two issues, appellant contends the trial court erred by:  (1) denying trial counsel's request to withdraw the day of trial;  and (2) allowing the prosecutor to discuss the potential range of punishment during voir dire.  We affirm.¹

I. Motion to Withdraw

By his first issue, appellant argues “[t]he trial court erred in denying trial counsel's request to withdraw as counsel for defendant prior to the commencement of voir dire.”  Specifically, appellant states “there were irreconcilable differences between [appellant] and [his attorney],” and the trial court's ruling denied appellant his “Sixth Amendment right to counsel of his own choosing.”  See U.S. Const. amend.  VI. We disagree.

A. Pertinent Facts

The record reflects appellant retained counsel as early as June 13, 2012, when his attorney filed a waiver of arraignment.  The case was not called for trial until January 13, 2014. Prior to voir dire, appellant's counsel stated the following:

My client has called to my attention the fact that he no longer wants my services for me to represent him in this particular case.  We have reached an impasse on being able to communicate with one another, and I think that it's going to be very difficult for him to obtain a fair trial if that's the situation. So, we would ask the court to allow me to withdraw and appoint an attorney to represent him.

Appellant added the following comments:

I don't mean to disrespect the courtroom.  We haven't been seeing eye to eye.  I caught him in several instances where he told me things and then turned around and changed them around basically lying to me and I can't have him representing me if he's lying.  Every time when I catch him on it, he tells me he don't recall that or he don't recall that.  He told me different things and then changed it.  I asked to see different things and asked about my witness reports.  I don't trust [trial counsel], not with my life.

Appellant's counsel then informed the trial court that he had contacted all potential witnesses and had discussed multiple plea offers with his client.  The trial court recessed the proceedings so appellant and his counsel could discuss the latest plea offer from the State.  When the proceedings resumed, appellant stated “I don't want to go to trial, not with [my trial counsel].”  The trial court responded, “Well, we're going to go to trial today.  This has been the date for some time, and we're going to go to trial.”

B. Standard of Review and Applicable Law

We review a trial court's decision on an attorney's motion to withdraw for an abuse of discretion.  Johnson v. State, 352 S.W.3d 224, 227–28 (Tex.App.—Houston [14th Dist.] 2011, pet. ref'd) (citing King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App.2000);  Brewer v. State, 649 S.W.2d 628, 631 (Tex.Crim.App.1983)).  The trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles.  Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993).  As long as the trial court's ruling falls within the “zone of reasonable disagreement,” there is no abuse of discretion, and the trial court's ruling will be upheld.  Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997).

The Sixth Amendment guarantees a defendant in a criminal proceeding the right to have assistance of counsel, including the right to counsel of the defendant's choosing.  Gonzalez v. State, 117 S.W.3d 831, 836 (Tex.Crim.App.2003).  The right to counsel of one's own choice, however, is neither unqualified nor absolute.  Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App.1991);  Brink v. State, 78 S.W.3d 478, 483 (Tex.App.—Houston [14th Dist.] 2001, pet. ref'd).  It 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.—Houston [14th Dist.] 1988, pet. ref'd).  A defendant cannot manipulate the right to obstruct the orderly procedure in the courts.  King, 29 S.W.3d at 566.

The determination of when a defendant's rights must yield to the efficient administration of the courts is a matter within the trial court's discretion.  Wheat v. United States, 486 U.S. 153, 164 (1988);  Kozacki v. Knize, 883 S.W.2d 760, 763 (Tex.App.— Waco 1994, no pet.).  Only when a trial court unreasonably or arbitrarily interferes with the defendant's right to choose counsel, does the trial court's actions rise to the level of a constitutional violation.  Gonzalez, 117 S.W.3d at 836.

C. Analysis

Appellant did not bring his dissatisfaction with counsel (retained for approximately nineteen months) to the trial court's attention until the day of trial.  Texas courts have consistently held that an accused may not wait until the day of trial to demand different counsel or request that counsel be dismissed so that he may retain other counsel.  See Robles v. State, 577 S.W.2d 699, 704 (Tex.Crim.App.1979);  Webb v. State, 533 S.W.2d 780, 784 (Tex.Crim.App.1976);  Keys v. State, 486 S.W.2d 958, 959 (Tex.Crim.App.1972);  Brown v. State, 464 S.W.2d 134, 135 (Tex.Crim.App.1971).  Over the course of nineteen months, appellant had sufficient time to assess his attorney's abilities and, if unsatisfied, to retain new counsel.  See Green v. State, 840 S.W.2d 394, 408 (Tex.Crim.App.1992) (“[T]he right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice.”), overruled on other grounds, Trevino v. State, 991 S.W.2d 849 (Tex.Crim.App.1999);  see also Metcalf v. State, No. 05–02–00162–CR, 2002 WL 31399811, at *4 (Tex.App.—Dallas Oct. 25, 2002, pet. ref'd) (mem. op., not designated for publication) (concluding that the trial court did not err in denying defendant's request for new counsel because the request was not made until the morning of trial, defense counsel had been retained approximately twenty-one months before trial, and defendant, if unsatisfied, could have retained new counsel at earlier date).  Given that trial was to proceed that very day, the trial court had the discretion to determine that the appointment of new counsel would obstruct the orderly administration of justice.  See Wheat, 486 U.S. at 164;  Kozacki, 883 S.W.2d at 763.

In addition, the record demonstrates that appellant's counsel was prepared and ably represented him at trial.  “[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”  Wheat, 486 U.S. at 159;  see Morris v. Slappy, 461 U.S. 1, 13–14 (1983).

We conclude the trial court did not abuse its discretion in denying trial counsel's motion to withdraw.  See Johnson, 352 S.W.3d at 227–28.  We overrule appellant's first issue.

II. Voir Dire

By his second issue, appellant argues “[t]he trial court erred in allowing, over objection, the prosecutor to discuss ․ the potential range of punishment during voir dire, when the jury was not assessing punishment.”  Appellant maintains that the “error was further compounded when the prosecutor inaccurately stated the potential range of punishment faced by [appellant] upon conviction.”  We disagree.

A. Pertinent Facts

The State initiated the following exchange during voir dire examination:

[Prosecutor]: Okay. I want to talk to you guys about the range of punishment.  The defendant is on trial for aggravated assault.  That case is a second-degree felony, and the range of punishment is from 2 years to 20 years and up to a 10,000–dollar fine.  Now, I know that seems broad.  That's an 18–year span.  And the law requires that you can consider that full range of punishment, from the minimum to the maximum, because the legislature realizes that there may be a fact scenario that's deserving of the minimum and there may be a fact scenario that's worthy of the maximum;  and, so, they let the jury know that you have that broad range to work with.  So, wherever your case falls, that's where—that's your range of punishment you can work with.  But you can't decide what you're going to sentence somebody up front.  Does that make sense?  The law requires that you can consider the full range from 2 to 20—

[Defense Counsel]: Your Honor, I will object to any testimony about the range of punishment for this jury because the election has been made to the court.

[Prosecutor]: They still have the right to know, your Honor, because—the jury still has the right to know.

[Court]: Have you told them the range of punishment?

[Prosecutor]: Yes, sir.

[Court]: Proceed.

[Prosecutor]: Okay. Now that you know the range of punishment and knowing the burden of proof, let's kind of pair that together.  So, I know that some of you have already raised your hands that you were not comfortable with the burden of proof being proof beyond a reasonable doubt and not proof beyond all doubt.  So, now that you know that the range of punishment is 2 to 20 and the consequences can be quite severe, is there anyone that maybe after thinking about it thinks no, I would want to—the case to be proven beyond all doubt?

B. Standard of Review and Applicable Law

A trial court has broad discretion over the process of selecting a jury, and we will not reverse the trial court's decision on the propriety of a particular voir dire question absent an abuse of discretion.  Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App.2003);  McBride v. State, 359 S.W.3d 683, 689–90 (Tex.App.—Houston [14th Dist.] 2011, pet. ref'd).  A trial court abuses its discretion if it allows the State to ask an improper question.  Atkins v. State, 951 S.W.2d 787, 790 (Tex.Crim.App.1997).  A question is improper if it (1) attempts to commit the juror to a particular verdict based on particular facts (a commitment question);  or (2) is so vague or broad in nature as to constitute a global fishing expedition.  Sells, 121 S.W.3d at 756 (citations omitted).

A question is proper if it seeks to discover a juror's views on an issue applicable to the case.  Id. Generally, “questions that are not clearly improper on some other basis may be asked for purposes of intelligently exercising peremptory challenges subject to reasonable time limits imposed by the trial court.”  Barajas v. State, 93 S.W.3d 36, 39 (Tex.Crim.App.2002) (citing Ratliff v. State, 690 S.W.2d 597, 600 (Tex.Crim.App.1985)).  The scope of permissible voir dire examination is necessarily broad to enable litigants to discover bias or prejudice so that they may make challenges for cause or peremptory challenges.  Zavala v. State, 401 S.W.3d 171, 175 (Tex.Crim.App.2011).

C. Analysis

The State commented on the range of punishment to determine whether prospective jurors could hold the State to the proper burden of proof—beyond a reasonable doubt—and not require the State to prove appellant's guilt beyond all doubt.  This is not improper.  “[A] prospective juror must be able to consider the full range of punishment provided for an offense or be challengeable for cause.”  Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001).

Bias against the range of punishment and the punishment philosophy of jurors are proper areas of inquiry for voir dire for both challenges for cause and peremptory challenges.  See id.;  Mathis v. State, 576 S.W.2d 835, 836–37, (Tex.Crim.App.1979).  Inquiries concerning the range of punishment are proper even where, as here, the defendant has elected for the trial court to assess punishment.  A defendant who has made such an election, may, with the consent of the State, change his election if a guilty verdict is returned.  See Tex.Code Crim. Proc. Ann. art. 37.07(2)(b) (West, Westlaw through 2015 R.S.).  Therefore, a defendant's initial election to have the trial court assess punishment does not foreclose inquiries concerning the sentencing range during voir dire.  See Hunt v. State, 852 S.W.2d 278, 281 (Tex.App.—Dallas 1993, no pet.) (determining that it was not improper for the prosecutor to inform potential jurors of the range of punishment because the defendant could have changed his election and the jury would have been called upon to assess punishment);  see also Suel v. State, No. 11–95–010–CR, 1996 WL 33650197, at *1–2 (Tex.App.—Eastland Sept. 26, 1996, no pet.) (mem. op., not designated for publication) (same).

Appellant also complains that the State provided the incorrect sentencing range during voir dire.  Appellant explains that he “was sentenced to forty ․ years['] confinement ․ when the jury believed he could only be sentenced to a maximum of twenty ․ years['] confinement, and possibly as little as two ․ years['] confinement.”  Appellant argues that “had the jury been properly informed of the true potential range of punishment, there is a reasonable probability that any juror may have been much less likely to cast a verdict of guilty.”  We conclude this assertion is waived because it does not comport with appellant's objection at trial.  See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002) (explaining that “[a] point of error on appeal must comport with the objection made at trial”).

To complain about a trial court's evidentiary ruling, a party must have first made his complaint to the trial court in a manner that states the grounds for the desired ruling with sufficient specificity to make the trial court aware of the complaint.  See Tex.R.App. P. 33.1(a)(1)(A).  If the trial court never has the opportunity to rule upon the proponent's appellate rationale, the argument cannot be raised on appeal.  See Reyna v. State, 168 S.W.3d 173, 178 (Tex.Crim.App.2005).

Appellant objected only on the basis that any comments concerning the sentencing range was improper, but did not notify the trial court that the State had provided an incorrect range of punishment.  Because appellant's complaint on appeal was not asserted below, the trial court did not have an opportunity to take corrective action.  See Lovill v. State, 319 S.W.3d 687, 691 (Tex.Crim.App.2009) (providing that “specificity requirement met if complaint at trial was clear enough for trial judge to understand what complaining party wanted, why they were entitled to it, and take corrective action”).  Therefore, appellant's argument is not preserved for our review.

The trial court did not abuse its discretion in allowing the State to discuss the punishment range during voir dire.  See Sells, 121 S.W.3d at 755.  We overrule appellant's second issue.

III. Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   As 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.

Memorandum Opinion by Justice Perkes