                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-431-CR


SEAN JACOB FAGAN                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Sean Jacob Fagan appeals his conviction for burglary of a

building. In a single issue, Fagan argues that the trial court erred by appointing

the same attorney to represent him who had previously been allowed to

withdraw as his counsel. We will affirm.




      1
          … See Tex. R. App. P. 47.4.
      In September 2007, Fagan pleaded guilty to the offense of burglary of a

building, and the trial court sentenced him to three years’ deferred adjudication

community supervision. The State filed a petition to proceed to adjudication in

April 2008, alleging that Fagan had violated several conditions of his

community supervision. In August 2008, Fagan’s counsel, J. Rex Barnett, filed

a motion to withdraw as counsel.       The record contains an unsigned order

granting the motion to withdraw, but an August 13, 2008 docket sheet entry

states, “Motion to Withdraw as Counsel Filed and Granted.”

      Before the hearing on the State’s petition to proceed to adjudication,

Fagan signed a document in which he waived his right to an appointed

attorney. Barnett represented Fagan at the hearing on the State’s petition.

Fagan pleaded true to each of the paragraphs in the State’s petition, and the

trial court found him guilty of burglary of a building and sentenced him to 365

days’ confinement in the state jail division of the Texas Department of Criminal

Justice.

      In his sole issue, Fagan argues that the trial court erred by appointing the

same attorney to represent him whom he had previously retained and fired. He

contends that the trial court failed to comply with state and local laws or rules




                                        2
regarding appointment of counsel2 because the trial court (1) did not appoint

Fagan appellate counsel from the rotation of qualified attorneys, (2) appointed

counsel according to its own system, (3) did not hold a hearing to determine

why Fagan wanted to proceed without this particular attorney, and (4) failed

to make a finding of good cause on the record for appointing an attorney out

of order. Without any explanation, Fagan argues that he was “prejudiced” by

the trial court’s alleged error.

      The record does not support Fagan’s argument. There is no signed order

in the record before this court granting Barnett’s motion to withdraw, and there

is no order appointing Barnett to represent Fagan. Although there is a docket

sheet entry stating that Barnett’s motion to withdraw was granted, the docket

sheet entry cannot stand as an order granting the motion to withdraw or as an

order appointing Barnett to represent Fagan.3


      2
       … See Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon 2009) (providing
that the judges of the county courts, statutory county courts, and district
courts trying criminal cases in each county, by local rule, shall adopt and
publish written countywide procedures for timely and fairly appointing counsel
for an indigent defendant); Tarrant (Tex.) Loc. R. (Criminal Proceedings in
Felony Cases) 5.53 (stating that appointment of counsel to represent indigent
defendants will be governed by the Tarrant County District Courts’ Felony Court
Appointment Plan).
      3
        … See State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.—Dallas 1999, no
pet.) (stating that a court may only act by orders duly recorded in its minutes;
that the order must be reduced to writing, signed by the trial judge, and entered
in the record; that a docket sheet entry is a memorandum made for the

                                       3
      Furthermore, before the hearing on the State’s petition, Fagan signed a

document containing a “Waiver of Appointed Counsel,” in which he affirmed,

“I wish to waive my right to an appointed attorney at this time. I do not want

the magistrate to appoint an attorney for me at this time.” And Barnett, whom

Fagan acknowledges was his “retained” counsel at least at one point in the

case, represented Fagan at the hearing on the State’s petition. Thus, as the

State points out, the record supports an inference that Fagan re-hired Barnett

to represent him at the hearing on the State’s petition to proceed just as much,

if not more, than it supports an inference (which is what Fagan’s argument is

centered on) that the trial court appointed Barnett to represent Fagan.

Accordingly, Fagan’s argument is without merit because it is not supported by

the record.

      In addition to an unsupported record, Fagan was represented by able

counsel at the hearing on the State’s petition, and he does not assert any

complaint about Barnett’s representation, including that Barnett was ineffective,




convenience of the trial court and clerk; and that docket sheet entries are not
part of the record because they are inherently unreliable, lacking the formality
of orders and judgments); Pifer v. State, 893 S.W.2d 109, 111 (Tex.
App.—Houston [1st Dist.] 1995, pet. ref’d) (agreeing with other intermediate
appellate court that the docket sheet is not part of the record and that the
record, not the docket entry, is the authoritative evidence upon which the
parties must rely on appeal).

                                       4
that he was deprived of qualified counsel, or that he could not adequately

communicate with Barnett. Thus, Fagan has not shown that he suffered any

harm resulting from the trial court’s alleged failure to comply with the applicable

state or local rules regarding appointment of attorneys for indigent defendants.

See Tex. R. App. P. 44.2(b) (providing that non-constitutional error that does

not affect substantial rights must be disregarded); Hughes v. State, 24 S.W.3d

833, 837–38 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 980 (2000)

(applying rule of appellate procedure 44.2(b) harm analysis to argument that the

State deprived appellant of qualified trial counsel by failing to comply with the

procedure in code of criminal procedure article 26.052).4 We overrule Fagan’s

sole issue and affirm the trial court’s judgment.




                                            PER CURIAM


PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)




      4
        … In Hughes, the court of criminal appeals disagreed with the appellant’s
argument that the failure to comply with article 26.052 was constitutional
error, stating that “[f]ailure to adhere to statutory procedures serving to protect
a constitutional provision is a violation of the statute, not a violation of the
constitutional provision itself.” Hughes, 24 S.W.3d at 838 n.2.

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DELIVERED: July 9, 2009




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