Donald Evans Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 25, 2021
• Docket: 09-20-00111-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00111-CR __________________

DONALD EVANS JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 25032 __________________________________________________________________

MEMORANDUM OPINION

A jury found Donald Evans Jr. guilty of aggravated assault with a deadly

weapon and the trial court sentenced Evans to two years in the Texas Department of

Criminal Justice, Institutional Division. See Tex. Penal Code Ann. § 22.02.

Appellant timely appealed. We affirm the trial court’s judgment.

On August 22, 2018, Appellant requested the trial court appoint counsel to

represent him, and on September 4, 2018, notice of appointment to represent

Appellant was sent to Appellant’s appointed counsel. More than seventeen months

1 later, and after the case was called for trial, after voir dire was conducted, and after

a jury selected, Appellant informed the court coordinator in the coordinator’s office

that “he wanted a new lawyer.” The court coordinator informed the trial judge of

Appellant’s request, and the trial judge informed the court coordinator that the

request would not be granted. That same morning in court, the trial judge, outside of

the jury’s presence, explained on the record what had transpired. The jury was

sworn, and the trial proceeded. The jury found Appellant guilty of aggravated assault

with a deadly weapon and the trial court sentenced Appellant to two years. Appellant

filed a notice of appeal.

In one issue, Appellant argues the trial court erred in failing to hold a hearing

on Appellant’s request to have his appointed counsel replaced. The Due Process

Clause of the Fourteenth Amendment to the United States Constitution guarantees

an indigent defendant’s right to appointed counsel. Thomas v. State, 550 S.W.2d 64,

67 (Tex. Crim. App. 1977). The Code of Criminal Procedure authorizes the

replacement of appointed counsel for good cause. See Tex. Code Crim. Proc. Ann.

art. 26.04(j)(2). However, “[a]ppointment of new counsel is a matter solely within

the discretion of the trial court[,]” and the “trial court is under no duty to search for

a counsel until an attorney is found who is agreeable to the accused.” Solis v. State,

792 S.W.2d 95, 100 (Tex. Crim. App. 1990); see King v. State, 29 S.W.3d 556, 566

(Tex. Crim. App. 2000). “A defendant does not have the right to choose appointed

2 counsel, and unless he waives his right to counsel and chooses to represent himself,

or shows adequate reasons for the appointment of new counsel, he must accept court-

appointed counsel.” Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San Antonio

2008, no pet.); see Renfro v. State, 586 S.W.2d 496, 499-500 (Tex. Crim. App.

1979); Trammell v. State, 287 S.W.3d 336, 343 (Tex. App.—Fort Worth 2009, no

pet.) (“Texas courts have specifically held that an indigent defendant does not have

a right to the counsel of his own choosing.”). Personality conflicts and disagreements

concerning trial strategy are typically not valid grounds for withdrawal. King, 29

S.W.3d at 566. A defendant’s right to counsel may not be manipulated to obstruct

the judicial process or interfere with the administration of justice. Id.

When an accused makes an eleventh hour request for a change of appointed

counsel, the court may (1) appoint or allow the defendant to employ new counsel at

its discretion, (2) permit the defendant to represent himself, or (3) compel an accused

who will not waive counsel and who does not assert his right to self-representation

to proceed to trial with the appointed counsel. Burgess v. State, 816 S.W.2d 424,

428-29 (Tex. Crim. App. 1991). When the trial court has no notice of the accused’s

dissatisfaction with the services of his trial counsel until the day of trial, no error is

presented by the trial court’s refusal to appoint new counsel. Brown v. State, 464

S.W.2d 134, 135-37 (Tex. Crim. App. 1971).

3 Here, the record reflects that Appellant waited until after the trial was called,

after voir dire conducted, and after the jury selected, to request that his trial counsel

be replaced. There is no showing that the request for a new attorney was brought to

the attention of the trial court before the trial date. Furthermore, when the trial court

denied Appellant’s request for new appointed counsel, Appellant did not object or

request a hearing. See Tex. R. App. P. 33.1. After reviewing the record and applying

the applicable law, we find no error. We overrule Appellant’s issue and affirm the

trial court’s judgment.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on October 15, 2020 Opinion Delivered August 25, 2021 Do Not Publish

Before Kreger, Horton and Johnson, JJ.