Andrade v. State

246 S.W.3d 217, 2007 WL 4198657
CourtCourt of Appeals of Texas
DecidedFebruary 7, 2008
Docket14-05-01227-CR
StatusPublished
Cited by59 cases

This text of 246 S.W.3d 217 (Andrade v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrade v. State, 246 S.W.3d 217, 2007 WL 4198657 (Tex. Ct. App. 2008).

Opinions

MAJORITY OPINION

JOHN S. ANDERSON, Justice.

A jury found appellant, Cesar Andrade, guilty of murder. Tex. Penal Code Ann. § 19.02 (Vernon 2003). The jury assessed appellant’s punishment at fifty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000.00 fine. The trial court sentenced appellant accordingly. Finding no reversible error, we affirm.

Factual And PROCEDURAL Background

Appellant, accompanied by his girlfriend, was driving a white Nissan pickup truck when it collided with a gray Ford Tempo driven by Margarito Alberto Re-sendez, the nineteen year-old complainant. Appellant lowered his window, reached under his seat and removed a small, silver or chrome revolver, and fired approximately five shots at the complainant. Appellant then drove off and continued to his girlfriend’s apartment. The complainant died as a result of gunshot wounds to his chest and posterior right upper arm through the chest. Upon learning the police were investigating the murder, appellant fled the country to El Salvador. Appellant had returned to Houston by 2000, but later moved to California where he was arrested and convicted on other charges. Following his conviction for attempted murder in California, appellant was brought back to Texas for trial.

During the entirety of his trial, appellant was represented by his counsel of record, Abraham Fisch. During the punishment phase of the trial, an additional attorney, R. Scott Shearer, appeared to assist Mr. Fisch. While questioning a witness, Mr. Shearer asked the court to allow him to make an offer of proof on testimony the trial court had excluded in response to an objection made by the prosecution. The trial court denied that request. Mr. Shearer then passed the witness and the prosecution also passed the witness. The trial court then excused the witness. At that point, Mr. Shearer again asked the court to make an offer of proof, which the court denied and instructed Mr. Shearer to sit down. When Mr. Shearer objected once again to the trial court’s refusal to allow him to make an offer of proof, the trial court ordered him ejected from the courtroom for violating the court’s rule against arguing with the court. This entire episode occurred in the presence of the jury. Mr. Fisch was present for the entire punishment phase of appellant’s trial.

The jury found appellant guilty of murder and he was sentenced to fifty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and was fined $10,000.00. This appeal followed.

Discussion

Appellant raises six issues in this appeal. In his first issue, appellant asserts the trial court’s ejection, during the punishment phase of the trial, of one of his attorneys, [223]*223violated his right to counsel under both the United States and Texas constitutions. In his second issue, appellant contends the trial court’s ejection, during the punishment phase of the trial, of one of his attorneys, violated his right to a public trial under both the United States and Texas constitutions. In his third issue, appellant argues the trial court committed reversible error when it allegedly prevented appellant from making offers of proof during trial. In his fourth issue, appellant contends the trial court erred when it admitted into evidence a photograph of appellant holding two handguns. In his fifth issue, appellant contends the trial court erred when it overruled his objections to allegedly improper jury argument by the prosecution. Finally, in his sixth issue, appellant contends the trial court erred when it admitted into evidence, during the punishment phase of the trial, two handguns found in appellant’s possession during the early stages of the investigation of complainant’s murder. We address each issue in turn.

A. The Trial Court Did Not Violate Appellant’s Right to Retained Counsel of His Choice When It Ordered One of Appellant’s Attorneys Forcibly Removed From the Courtroom

In his first issue, appellant contends the trial court denied appellant his right to counsel of his choice in violation of the Sixth Amendment to the United States Constitution and Article I, Section 10, of the Texas Constitution when it ejected one of appellant’s attorneys from the courtroom.1 We disagree.

Initially, we must determine whether the trial court’s ejection of one of appellant’s attorneys, deprived appellant of his attorney of choice. The right to select counsel of one’s choice is considered the core meaning of the Sixth Amendment’s guarantee of the right to counsel. United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 2563, 165 L.Ed.2d 409 (2006). A trial court’s erroneous deprivation of this right is structural error and not subject to harmless-error analysis. Id., 548 U.S. 140, 126 S.Ct. at 2564, 2566. The error requires automatic reversal on appeal. Id.

Here, the trial court initially appointed Patricia Segura as counsel to represent appellant during the trial.2 Soon thereafter, appellant filed a motion to substitute Mr. Fisch as his attorney of record. The trial court granted appellant’s motion and Mr. Fisch replaced Ms. Segura as appellant’s attorney of record. Appellant filed no further motions to substitute counsel. In addition, appellant did not bring any complaints regarding Mr. Fisch’s performance as his attorney of record to the attention of the trial court.3 The appellate record establishes that Mr. Fisch remained appellant’s attorney of record throughout [224]*224the entire trial and was present for the entirety of appellant’s trial. On the sixth and final day of appellant’s trial, the punishment phase, Mr. Shearer appeared in the trial court. Mr. Shearer had been retained by appellant as his appellate counsel and to assist Mr. Fisch during the trial. The trial court granted Mr. Shearer permission to assist Mr. Fisch. As detailed above, it was at the end of Mr. Shearer’s questioning of a witness early in the punishment phase, that he was ejected from the courtroom by the trial court. After Mr. Shearer was ejected, Mr. Fisch handled the remainder of the trial. Mr. Shearer argued appellant’s motion for new trial and is appellant’s attorney of record in this appeal.

The trial court did not violate appellant’s Sixth Amendment right to retained counsel of his choice. Under the Sixth Amendment, a criminal defendant can retain multiple attorneys based on the attorney’s specialized skills. See Kozacki v. Knize, 883 S.W.2d 760, 763 (Tex.App.Waco 1994, (original proceeding)) (recognizing constitutionally protected right of a criminal defendant to retain specialized counsel of their choice to handle a particular portion of a criminal proceeding). Here, appellant exercised that right and retained two separate attorneys, one for trial and one for appeal. As stated above, Mr. Fisch, appellant’s counsel of choice for trial, was present throughout his entire trial. Therefore, the trial court did not deprive appellant of his counsel of choice under the Sixth Amendment.4 We overrule appellant’s first issue.

B.

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Bluebook (online)
246 S.W.3d 217, 2007 WL 4198657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrade-v-state-texapp-2008.