Carlos Dewayne Rogers v. State

• Court: Court of Appeals of Texas
• Decided: July 20, 2006
• Docket: 14-05-01213-CR
• Status: Published

Opinion

Affirmed as Modified and Opinion filed July 20, 2006

Affirmed as Modified and Opinion filed July 20, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01213-CR

CARLOS DEWAYNE ROGERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 14,294

O P I N I O N

Appellant, Carlos Dewayne Rogers, appeals after a judge convicted him of the first-degree felony of injury to a child and sentenced him to thirty years= incarceration.  In his sole point of error, appellant contends that the trial court=s sua sponte substitution of his appointed counsel violated his constitutional and statutory rights to qualified appointed counsel.  We affirm the trial court=s judgment as modified herein.

Background

On October 21, 2004, appellant was charged with causing serious bodily injury to a child.  Appellant later requested appointed counsel, and the trial judge appointed Conrad Day.  Day filed motions on appellant=s behalf and represented appellant when he entered a plea of nolo contendere; thereafter, attorney Margaret Polansky represented appellant at the punishment phase.  The record is silent regarding the reasons for this substitution.  The trial judge found appellant guilty and sentenced him to thirty years= incarceration.

Substitution of Counsel

In his sole point of error, appellant argues that the trial court=s substitution of appointed counsel violated his constitutional and statutory right to qualified appointed counsel.  Appellant has failed to preserve this issue because he did not object at the sentencing hearing.

A trial court has no discretion to replace a defendant=s appointed counsel sua sponte over counsel=s and the defendant=s objection if the court=s only justification is its personal practice, expertise, feelings, or preferences.  Stearnes v. Clinton, 780 S.W.2d 216, 225 (Tex. Crim. App. 1989);  Springer v. State, 940 S.W.2d 322, 323 (Tex. App.CDallas 1997, no pet).  This rule does not apply, however, if a trial court merely substitutes a court-appointed attorney to represent a defendant at a particular hearing, the defendant agrees to the substitution, and the original attorney does not object.  Springer, 940 S.W.2d. at 323.  Furthermore, if a defendant is displeased with his appointed counsel at any stage of the proceeding, he must bring the matter to the court=s attention.  Id.  In Springer, the record did not reflect why one appointed attorney represented the defendant when he pleaded guilty but a different appointed attorney represented him at his probation hearing.  Id. at 324.  Although the record did not demonstrate that the defendant had agreed to the substitution, it also did not show that he had objected to it; therefore, the Fifth Court of Appeals held that the defendant had waived any complaint regarding substitution of appointed counsel.  Id.

Here, the record does not reflect why one attorney represented appellant at the pleading phase and a different attorney represented him at the sentencing phase.  The record also is silent as to whether appellant or his original attorney objected to the substitution.  Therefore, appellant has failed to preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a) (stating that a defendant must make a timely and specific objection to preserve error); see also Reber v. State, 2004 WL 1175484, at *4 (Tex. App.CAmarillo May 26, 2004, pet. ref=d, untimely filed) (not designated for publication) (holding that when a defendant withholds objection about substitution of appointed counsel, he has waived that complaint); Bean v. State, 1998 WL 161477, at *10 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (not designated for publication) (stating that because the defendant did not object to substitution of appointed counsel, he failed to preserve his complaint for appellate review).  Because appellant has failed to preserve any complaint regarding the substitution of counsel for appellate review, we overrule his sole point of error. 

The parties agree and our review of the record reveals that the judgment erroneously states that appellant pleaded Aguilty@ when he entered a plea of nolo contendere.  We therefore modify the judgment to reflect the proper plea  See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.CDallas 1991, pet. ref=d) (stating that  appellate courts have the power to correct and reform a trial court=s judgment Ato make the record speak the truth@).  We affirm the trial court=s judgment as modified.

/s/        Adele Hedges

Chief Justice

Judgment rendered and Opinion filed July 20, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).