NUMBERS 13-11-00238-CR & 13-11-00239-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CONRADO VELA III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes
Appellant, Conrado Vela III, appeals two separate convictions for family-violence
assault, enhanced to a third-degree felony by a prior conviction for assault against a
victim with whom appellant had a ―dating relationship.‖1 See TEX. PENAL CODE ANN.
1 Although neither party has filed a motion to consolidate these appeals, in the interest of judicial economy, we issue a single opinion herein disposing of both appeals. § 22.01(b)(2)(A) (West Supp. 2009); TEX. FAM. CODE ANN. § 71.0021(b) (West 2008)
(defining ―dating relationship‖). After the jury found appellant guilty in each case, the trial
court assessed the maximum sentence of twenty years in each case, with the twenty-year
sentences to run concurrently. The trial court ordered the sentences to commence after
appellant finishes serving a fifty-year sentence for aggravated kidnapping in another
case. See Vela v. State, No. 13-10-00491-CR, 2011 WL 3821045, at *5 (Tex.
App.—Corpus Christi Aug. 25, 2011, pet. filed) (mem. op., not designated for publication)
(affirming appellant’s convictions for aggravated kidnapping and unauthorized use of a
motor vehicle).
By two issues in each case, appellant argues that (1) the trial court erred by not
holding a thorough hearing on his motion to substitute his appointed trial counsel; and (2)
the trial court reversibly erred when it denied his pro se motion to substitute appointed
counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
The cases were consolidated for trial. The State showed that appellant held the
victim against her will for two days after he accused her of cheating on him. During the
two days, appellant confined the victim inside of a Jeep vehicle, hit her numerous times,
and urinated on her.
By the time of trial, the trial court had granted respective motions to withdraw filed
by appellant’s two prior court-appointed attorneys. Appellant’s first court-appointed
2 Because 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.
2 attorney was a public defender who moved to withdraw after appellant expressed
dissatisfaction with her. Appellant accused her of collusion with the State. The public
defender informed the trial court that at the conclusion of a conversation with appellant,
appellant had demanded the notes she made during the conversation, and that she felt it
would be very difficult to effectively represent him because of his belief she was in
collusion with the State. After hearing the public defender’s account, the trial court gave
appellant an opportunity to respond, and appellant requested substitute counsel. The
trial court granted the public defender’s motion to withdraw, appointed a second attorney,
and re-set appellant’s trial date.
Appellant’s second court-appointed attorney represented him for over three
months and engaged in significant discovery and trial preparation. After filing motions in
limine, she moved to withdraw from representing appellant because he was not
cooperating with or talking to her. Appellant admitted in open court that this was true and
indicated he would like a third attorney, who was representing him in his
aggravated-kidnapping appeal, to represent him in these cases. The trial court granted
the second attorney’s motion to withdraw, ―not necessarily . . . [appellant’s] request,‖ and
appointed the attorney appellant requested. The trial date was re-set so that the third
attorney could prepare for trial.
Less than a week before trial, appellant made an oral motion that the trial court
substitute his third attorney because appellant felt the attorney had not communicated
with him sufficiently. The trial court denied appellant’s motion. Appellant’s third
attorney tried the cases on appellant’s behalf, documenting on the record, outside the
3 presence of the jury, instances in which appellant was uncooperative or in disagreement
with counsel.
II. DISCUSSION
Appellant’s first issue in each case challenges the trial court’s alleged failure to
conduct a thorough hearing on his motion to substitute his third appointed trial attorney.
There is no requirement that a trial court sua sponte hold a hearing on an indigent
defendant’s motion to substitute his appointed counsel. Malcom v. State, 628 S.W.2d
790, 792 (Tex. Crim. App. 1982) (panel op.); Carroll v. State, 176 S.W.3d 249, 256 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d). Because nothing in the record shows that
appellant requested a hearing on his motion to substitute counsel, appellant did not
preserve error, if any, for appellate review. See Malcom, 628 S.W.2d at 792; Carroll, 176
S.W.3d at 256; see also Reddic v. State, 976 S.W.2d 281, 283 (Tex. App.—Corpus
Christi 1998, pet. ref’d) (holding that a trial court did not err by not holding a hearing on
defendant’s motion to substitute appointed counsel when the trial court was aware of the
defendant’s complaint and discussed it with counsel in defendant’s presence); Melendez
v. Salinas, 895 S.W.2d 714, 715 (Tex. App.—Corpus Christi 1994) (orig. proceeding)
(concluding attempted-murder defendant who requested a hearing was entitled to a
thorough hearing on his motion to substitute counsel when he raised a ―substantial
complaint‖ about appointed counsel’s representation). Appellant’s first issue in each
case is overruled.
Appellant’s second issue in each case challenges the trial court’s denial of his
motion to substitute his trial counsel. We review the trial court’s ruling for an abuse of
4 discretion. See Carroll, 176 S.W.3d at 256 (citing Burgess v. State, 816 S.W.2d 424,
428–29 (Tex. Crim. App. 1991)). The Court of Criminal Appeals ―has historically
affirmed the trial judge’s decisions in refusing defendants’ motions to dismiss their
court-appointed counsel.‖ Malcom, 628 S.W.2d at 791.
The defendant must accept counsel assigned by the court unless he effectively
waives the right to counsel for self-representation or can show adequate cause for
appointment of a different attorney. Reddic, 976 S.W.2d at 283 (citing Thomas v. State,
550 S.W.2d 64, 68 (Tex. Crim. App. 1977)). A trial court is under no duty to search until
it finds an attorney agreeable to the defendant. Id. (citing Malcom, 628 S.W.2d at 791).
When a trial court appoints an attorney to represent the indigent defendant, the defendant
has received the protections provided under the Sixth and Fourteenth Amendments. Id.
The right to counsel may not be manipulated so as to obstruct the judicial process or
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NUMBERS 13-11-00238-CR & 13-11-00239-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CONRADO VELA III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes
Appellant, Conrado Vela III, appeals two separate convictions for family-violence
assault, enhanced to a third-degree felony by a prior conviction for assault against a
victim with whom appellant had a ―dating relationship.‖1 See TEX. PENAL CODE ANN.
1 Although neither party has filed a motion to consolidate these appeals, in the interest of judicial economy, we issue a single opinion herein disposing of both appeals. § 22.01(b)(2)(A) (West Supp. 2009); TEX. FAM. CODE ANN. § 71.0021(b) (West 2008)
(defining ―dating relationship‖). After the jury found appellant guilty in each case, the trial
court assessed the maximum sentence of twenty years in each case, with the twenty-year
sentences to run concurrently. The trial court ordered the sentences to commence after
appellant finishes serving a fifty-year sentence for aggravated kidnapping in another
case. See Vela v. State, No. 13-10-00491-CR, 2011 WL 3821045, at *5 (Tex.
App.—Corpus Christi Aug. 25, 2011, pet. filed) (mem. op., not designated for publication)
(affirming appellant’s convictions for aggravated kidnapping and unauthorized use of a
motor vehicle).
By two issues in each case, appellant argues that (1) the trial court erred by not
holding a thorough hearing on his motion to substitute his appointed trial counsel; and (2)
the trial court reversibly erred when it denied his pro se motion to substitute appointed
counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
The cases were consolidated for trial. The State showed that appellant held the
victim against her will for two days after he accused her of cheating on him. During the
two days, appellant confined the victim inside of a Jeep vehicle, hit her numerous times,
and urinated on her.
By the time of trial, the trial court had granted respective motions to withdraw filed
by appellant’s two prior court-appointed attorneys. Appellant’s first court-appointed
2 Because 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.
2 attorney was a public defender who moved to withdraw after appellant expressed
dissatisfaction with her. Appellant accused her of collusion with the State. The public
defender informed the trial court that at the conclusion of a conversation with appellant,
appellant had demanded the notes she made during the conversation, and that she felt it
would be very difficult to effectively represent him because of his belief she was in
collusion with the State. After hearing the public defender’s account, the trial court gave
appellant an opportunity to respond, and appellant requested substitute counsel. The
trial court granted the public defender’s motion to withdraw, appointed a second attorney,
and re-set appellant’s trial date.
Appellant’s second court-appointed attorney represented him for over three
months and engaged in significant discovery and trial preparation. After filing motions in
limine, she moved to withdraw from representing appellant because he was not
cooperating with or talking to her. Appellant admitted in open court that this was true and
indicated he would like a third attorney, who was representing him in his
aggravated-kidnapping appeal, to represent him in these cases. The trial court granted
the second attorney’s motion to withdraw, ―not necessarily . . . [appellant’s] request,‖ and
appointed the attorney appellant requested. The trial date was re-set so that the third
attorney could prepare for trial.
Less than a week before trial, appellant made an oral motion that the trial court
substitute his third attorney because appellant felt the attorney had not communicated
with him sufficiently. The trial court denied appellant’s motion. Appellant’s third
attorney tried the cases on appellant’s behalf, documenting on the record, outside the
3 presence of the jury, instances in which appellant was uncooperative or in disagreement
with counsel.
II. DISCUSSION
Appellant’s first issue in each case challenges the trial court’s alleged failure to
conduct a thorough hearing on his motion to substitute his third appointed trial attorney.
There is no requirement that a trial court sua sponte hold a hearing on an indigent
defendant’s motion to substitute his appointed counsel. Malcom v. State, 628 S.W.2d
790, 792 (Tex. Crim. App. 1982) (panel op.); Carroll v. State, 176 S.W.3d 249, 256 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d). Because nothing in the record shows that
appellant requested a hearing on his motion to substitute counsel, appellant did not
preserve error, if any, for appellate review. See Malcom, 628 S.W.2d at 792; Carroll, 176
S.W.3d at 256; see also Reddic v. State, 976 S.W.2d 281, 283 (Tex. App.—Corpus
Christi 1998, pet. ref’d) (holding that a trial court did not err by not holding a hearing on
defendant’s motion to substitute appointed counsel when the trial court was aware of the
defendant’s complaint and discussed it with counsel in defendant’s presence); Melendez
v. Salinas, 895 S.W.2d 714, 715 (Tex. App.—Corpus Christi 1994) (orig. proceeding)
(concluding attempted-murder defendant who requested a hearing was entitled to a
thorough hearing on his motion to substitute counsel when he raised a ―substantial
complaint‖ about appointed counsel’s representation). Appellant’s first issue in each
case is overruled.
Appellant’s second issue in each case challenges the trial court’s denial of his
motion to substitute his trial counsel. We review the trial court’s ruling for an abuse of
4 discretion. See Carroll, 176 S.W.3d at 256 (citing Burgess v. State, 816 S.W.2d 424,
428–29 (Tex. Crim. App. 1991)). The Court of Criminal Appeals ―has historically
affirmed the trial judge’s decisions in refusing defendants’ motions to dismiss their
court-appointed counsel.‖ Malcom, 628 S.W.2d at 791.
The defendant must accept counsel assigned by the court unless he effectively
waives the right to counsel for self-representation or can show adequate cause for
appointment of a different attorney. Reddic, 976 S.W.2d at 283 (citing Thomas v. State,
550 S.W.2d 64, 68 (Tex. Crim. App. 1977)). A trial court is under no duty to search until
it finds an attorney agreeable to the defendant. Id. (citing Malcom, 628 S.W.2d at 791).
When a trial court appoints an attorney to represent the indigent defendant, the defendant
has received the protections provided under the Sixth and Fourteenth Amendments. Id.
The right to counsel may not be manipulated so as to obstruct the judicial process or
interfere with the administration of justice and must, in some instances, yield to the
general interest of prompt and efficient justice. See King v. State, 29 S.W.3d 556, 566
(Tex. Crim. App. 2000); Carroll, 176 S.W.3d at 256. If a defendant is displeased with his
appointed counsel, he must bring the matter to the court's attention. Reddic, 976 S.W.2d
at 283. Thereupon, the defendant carries the burden of proving adequate reason to
appoint substitute counsel. Id.; see also Carroll, 176 S.W.3d at 256.
Appellant has not met his burden. The clerk’s record does not contain a written
motion to substitute counsel. Rather, less than a week before trial, appellant made four
pro se motions to the trial court in open court.3 One of appellant’s four motions was his
3 Counsel explained to the trial court that he had conferred with appellant about these motions and believed ethical constraints precluded counsel from urging the motions on appellant’s behalf. Besides the 5 motion to substitute trial counsel ―[j]ust for the simple fact that I have written him several
letters and not response [sic]—not got a response . . . to my case and stuff like that. And,
I mean, I haven’t really talked to him.‖ After conferring with appellant about the fact that
his trial attorney was his third appointed attorney, the trial court denied appellant’s motion.
Six days later, on the first day of trial, before voir dire, appellant complained to the
trial court that he had not talked to counsel about his case ―at all‖ and that he had written
letters to counsel. The trial court inquired whether trial counsel had represented
appellant at the pre-trial hearing—wherein appellant had first urged his motion to
substitute counsel. Counsel informed the court that he did represent appellant at the
hearing, spoke to appellant at the jail and on other occasions, gave appellant a copy of all
the discovery in the case, and discussed the discovery with appellant. The trial court did
not substitute trial counsel.
In support of his motion to substitute counsel and on appeal, appellant does not
cite any harm counsel caused by his alleged deficiency in communicating with appellant.
See Malcom, 628 S.W.2d at 792 (examining the record to determine whether it showed
harm as a result of trial counsel’s alleged animosity and unwillingness to explore
defendant’s contentions); Reddic, 976 S.W.2d at 283 (concluding defendant failed to
demonstrate harm resulting from the trial court’s denial of his request to substitute
counsel). The record shows that by the time trial counsel was appointed to represent
appellant, discovery was complete and the cases were ready for trial. A sufficient motion
in limine had already been filed in each case. The record shows trial counsel provided
motion to substitute counsel, the motions pertained to appellant’s case and included, for example, appellant’s motion to subpoena telephone records to show a conspiracy between the prosecutor and four alleged victims of appellant. 6 appellant a zealous, competent defense, notwithstanding the magnitude of the evidence
against appellant. Counsel participated actively in pre-trial hearings, voir dire, the
examination of witnesses, and in lodging objections on appellant’s behalf. Counsel also
gave a competent opening statement and closing argument. The record does not show
the trial court abused its discretion in denying appellant’s motion to substitute counsel.
See Malcom, 628 S.W.2d at 791–92; Carroll, 176 S.W.3d at 258; see also Reddic, 976
S.W.2d at 283. Appellant’s second issue in each case is overruled.
III. CONCLUSION
We affirm the trial court’s judgment in each case.
Gregory T. Perkes Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 2nd day of February, 2012.