                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00034-CR

                                        David RODRIGUEZ,
                                              Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR8655
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 17, 2015

AFFIRMED

           Appellant David Rodriguez was convicted by a jury of two counts of murder. After making

an affirmative finding that the vehicle used during the offense was a deadly weapon, the jury

assessed punishment at life imprisonment in the Institutional Division of the Texas Department of

Criminal Justice. Rodriguez raises two issues on appeal: (1) the trial court erred in failing to grant

his motion to dismiss his appointed counsel, and (2) it erred in allowing the State to solicit witness

testimony calling for legal conclusions. We affirm the trial court’s judgment.
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                                    FACTUAL BACKGROUND

       On September 19, 2012, undercover narcotics officers were surveilling a residence under

suspicion of illegal drug activity. Rodriguez drove away from the residence in a black Chevrolet

Suburban. San Antonio Police Officer Kimberly Kory initiated a traffic stop based on Rodriguez’s

failure to signal a lane change. Rodriguez failed to stop and a high-speed chase ensued.

       Officer Kory testified Rodriguez drove through two stop signs without slowing and then

sped onto Interstate 35. She discontinued the chase when she determined that because of

Rodriguez’s high speed, the heavy traffic, and his weaving in and out of traffic, she was unable to

safely continue pursuit. When Officer Kory saw Rodriguez’s vehicle again, he had exited the

highway and was on the access road. She saw him twice lose control of his vehicle and spin

around. As Officer Kory was driving southbound on the two-lane access road, Rodriguez drove

northbound in the southbound lane. Officer Kory swerved out of the southbound lane to avoid

being hit by Rodriguez’s vehicle, and Rodriguez sped by. As Rodriguez’s vehicle crested a hill—

in the wrong lane, at an excessive rate of speed—he slammed head-on into a Volvo station wagon.

As a result of the impact, two young children riding in the station wagon were killed.

       The evidence showed Rodriguez never applied his brakes. When officers inspected

Rodriguez’s vehicle, they discovered approximately 400 pounds of marijuana. The jury found

Rodriguez guilty of murder and assessed punishment at life imprisonment, and this appeal ensued.

                                      RIGHT TO COUNSEL

       Moments before voir dire was to begin, Rodriguez requested permission to speak to the

trial court. He made an oral request for new appointed counsel and reminded the judge that he had

submitted several motions by mail to dismiss one of his two court-appointed trial counsel. Orally,

Rodriguez claimed to have lost faith and confidence in both his appointed attorneys. One of his



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appointed counsel requested permission to withdraw from the case. Rodriguez’s motions to

dismiss his counsel and counsel’s motion to withdraw were denied.

A.     Arguments of the Parties

       Rodriguez contends the trial court erred in denying his motion to dismiss his trial counsel

and thus denied him a fair trial, the right to effective counsel, and due process and equal protection

of the United States and Texas Constitutions.

       The State counters that Rodriguez failed to present a reason to the trial court that warranted

a hearing on his request to dismiss his counsel.

B.     Standard of Review

       A trial court’s unreasonable or arbitrary interference with a defendant’s right to choose

counsel amounts to a violation of the defendant’s Sixth Amendment rights. Gonzalez v. State, 117

S.W.3d 831, 837 (Tex. Crim. App. 2003). As long as the trial court’s decision on a motion to

dismiss appointed counsel falls within the “zone of reasonable disagreement,” the trial court does

not abuse its discretion and we will uphold the ruling. Id. at 839; Hobbs v. State, 359 S.W.3d 919,

926 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Johnson v. State, 352 S.W.3d 224, 227 (Tex.

App.—Houston [14th Dist.] 2011, pet. ref’d). In determining whether the trial court abused its

discretion, “we may only consider the information presented to the trial court at the time of its

decision.” Johnson, 352 S.W.3d at 227–28; accord Stephenson v. State, 255 S.W.3d 652, 655

(Tex. App.—Fort Worth 2008, pet. ref’d).

C.     Right to Counsel

       A defendant’s right to have assistance of counsel during a criminal proceeding is

guaranteed by both the Texas and United States Constitutions. U.S. CONST. amend. VI; TEX.

CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp. 2014) (“A

defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial
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proceeding.”). The right to the assistance of counsel includes the defendant’s right to obtain that

assistance from retained counsel of his choosing. United States v. Gonzalez-Lopez, 548 U.S. 140,

144 (2006); Gonzalez, 117 S.W.3d at 836–37; see also Powell v. Alabama, 287 U.S. 45, 53 (1932)

(“It is hardly necessary to say that the right to counsel being conceded, a defendant should be

afforded a fair opportunity to secure counsel of his own choice.”); Ex parte Prejean, 625 S.W.2d

731, 733 (Tex. Crim. App. 1981) (stating that right to assistance of counsel, “of course, includes

freedom of choice in the selection of counsel by the accused”).

          A defendant’s right, however, is not absolute. Gonzalez, 117 S.W.3d at 837. “[W]hile

there is a strong presumption in favor of a defendant’s right to retain counsel of choice, this

presumption may be overridden by other important considerations relating to the integrity of the

judicial process and the fair and orderly administration of justice.” Id. Among other things, “a

trial court [has] wide latitude in balancing the right to counsel of choice against the needs of

fairness and against the demands of its calendar.” Gonzalez-Lopez, 548 U.S. at 151–52, 158

(citations omitted); accord Martinez v. State, No. 01-12-00892-CR, 2014 WL 1912544, at *4 (Tex.

App.—Houston [1st Dist.] May 13, 2014, no pet.) (mem. op., not designated for publication); see

also Gonzalez-Lopez, 548 U.S. at 151 (“Nothing we have said today casts any doubt or places any

qualification upon our previous holdings that limit the right to counsel of choice . . . . [T]he right

to counsel of choice does not extend to defendants who require counsel to be appointed for them.”

(citation omitted)); Trammel v. State, 287 S.W.3d 336, 342–43 (Tex. App.—Fort Worth 2009, no

pet.) (same). Yet, in conducting our analysis, we remain mindful of the Court of Criminal Appeals’

admonishment that “courts must exercise caution in disqualifying defense attorneys, especially if

less serious means would adequately protect the government’s interests.” Gonzalez, 117 S.W.3d

at 837.



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D.     Trial Court Proceedings

       With the venire waiting outside the courtroom, at Rodriguez’s request, the parties

approached the bench and Rodriguez addressed the court.

       Rodriguez:     I’m having problems, yeah, with my counsel just all around. And I
                      tried to address you with it the last time, but she wasn’t here to hand
                      you the motion to dismiss appointed counsel.
       Trial Court:   Well, actually I got one in the mail.
       Rodriguez:     Oh, okay.
       Trial Court:   So I did review that. And it was, you know, denied because it is a—
                      as we discussed last time, you’ve got appointed lawyers. You’re
                      welcome to hire any lawyer you want to hire, but it’s too late to do
                      that at this point because we’re picking a jury. But I did get that in
                      the mail.
       Rodriguez:     But I—I’m telling her I’m not ready and she’s just totally ignoring
                      me. She—they’re—they’re—I—I have reasons here why, you
                      know, that I would just like to go over them with you before we start
                      this because I—I’m totally—I don’t trust their counsel at all. I
                      mean, we were going over some things and—and she—she hasn’t
                      really reviewed the case at all. I mean, she—she didn’t know—
       Trial Court:   Well, we don’t want to go into trial strategy. And, you know, they’re
                      a little concerned about you talking about matters concerning the
                      case in front of the DA’s office who’s going to be prosecuting you
                      and I think that’s extremely wise.
                      So let me go ahead and I’ll step in the back and she can make
                      whatever record she wants outside of my presence and we’ll ask
                      the—the DA’s office to take a break while we’re waiting for the
                      shuffled panel to come up.
       Rodriguez:     And—and who would I talk to this to about—about the—I—I really
                      want to get it—I mean, there’s nothing about the case—
       Trial Court:   You know, again, I’ve gotten things from you that are in the court’s
                      file. You’re welcome to continue to put them in writing and they’ll
                      be filed of record with the other matters but, as I said, you’re not
                      entitled to dual representation so I’m not going to rule on those
                      matters at this point.
       Rodriguez:     Okay. Well, can I have her file some motions that I prepared? I
                      mean, she hasn’t—she—
       Trial Court:   As I said, you can file anything you want—
       Rodriguez:     Okay. She hasn’t filed it.


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       Trial Court:    —but you’re only entitled to one lawyer, one representation.
       Rodriguez:      And I want to file it.
       Trial Court:    One representation.
       Rodriguez:      Okay.
       Trial Court:    So, go ahead and file them.
       Rodriguez:      Okay.

E.     Analysis

       1.      Preservation of Error

       The State contends neither Rodriguez nor his counsel requested a hearing on Rodriguez’s

motion for new counsel. We disagree.

       “To preserve error for appellate review, the complaining party must [timely] make a

specific objection and obtain a ruling on the objection.” Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002); see TEX. R. APP. P. 33.1(a)(1). The objection need not be specific if the trial

judge was aware of the substance of the objection when it was made. Cooper v. State, 961 S.W.2d

222, 228 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); Kelly v. State, 903 S.W.2d 809, 811

(Tex. App.—Dallas 1995, pet. ref’d). Texas courts have held that points of error on appeal must

correspond or comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263,

273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana

2005, pet. ref’d). We must, however, construe a party’s brief liberally to reach the merits of an

appeal. TEX. R. APP. P. 38.9 (stating substantial compliance with briefing rules is sufficient); Ditta

v. Conte, 298 S.W.3d 187, 190 (Tex. 2009).

       Based on a review of the record, we conclude Rodriguez was asking the trial court for

assistance and trying to convey that he and his counsel were not compatible. We decline to follow

the State’s argument that Rodriguez failed to request a hearing; accordingly, we conclude

Rodriguez preserved his argument for appellate review.

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        We now determine whether the trial court erred in failing to hold a hearing on Rodriguez’s

motion to dismiss his appointed counsel.

        2.      Rodriguez’s Motion to Dismiss Counsel

        After the trial court left the bench, Rodriguez and his counsel made a record in which

Rodriguez voiced his concerns. The issues raised by Rodriguez related primarily to trial strategy

and preparation. Specifically, he complained defense counsel was not listening to him, was “trying

to force me to go to trial and we’re not ready,” and had not conveyed his twenty-year offer to the

State because his counsel did not believe the State would accept it. Rodriguez also professed that

he was not ready to proceed to trial because there was more paperwork he wanted to review. With

regard to the facts, Rodriguez claimed defense counsel did not know when the officer investigating

the case “started her shift.”

                This trial is already going to start and you don’t even know some of the
        basic things, you know. That’s what worries me. I’ve been asking y’all to—to—
        to get—to put continuances that I’ve even made. I’ve been asking, Please, put these
        continuances that I have made because we’re not ready to go to trial. I’m not—you
        know, y’all are just throwing me to the dogs saying, No, we’re ready, we’re ready,
        we’re ready. I know you’re not ready, you know. I know you have—you haven’t
        even gone over the facts and you haven’t asked me who I wanted to subpoena, you
        haven’t asked me anything. I do want to subpoena people. I do want to do these
        things, but y’all haven’t asked. Y’all haven’t even—you throw me to the dogs
        every time. It’s like, Okay, yeah, we’ll take care of it and then nothing.

                 I gave you itemized lists like three times. Can you give me these things?
        And you haven’t done any of them. Not even one. One item on the itemized list
        was Officer Kory’s time she arrived at her—her arrival and her departure from the
        roll call and you didn’t get that. And you didn’t even know what time it was at all.
        I mean, just little basic things that I believe you should know, you know, that you
        don’t know and haven’t gone over with me, you know.

        Defense counsel’s frustration with Rodriguez was obvious. When the trial court returned

to the bench, defense counsel whom Rodriguez had objected to in writing moved to withdraw. “At

this point I would like to make a motion to withdraw as counsel for [Rodriguez]. I’ve lost the

ability to effectively communicate with my client so that it will interfere with my ability to
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represent him appropriately during the course of this trial.” The trial court confirmed Rodriguez’s

case was on its third special setting and the incident occurred over a year prior to the date of trial.

       Explaining that Rodriguez was not entitled to dual representation, the trial court denied the

motions filed by Rodriguez. Regarding defense counsel’s motion, the trial court opined as follows:

       I realize that it’s difficult to communicate with him and deal with him in view of
       him wanting to approach the bench and discussing it with the Court, which we have
       allowed him to do on a couple of occasions. But at this point, [defense counsel]
       was appointed when this was a capital murder case, immediately, the day of, I
       believe. And then at some point in time [co-counsel] was appointed to assist, even
       though it was no longer a capital case and there was not a situation where there
       should have been or necessarily entitled to have two lawyers on the case. I did
       grant the request. And Mr. Rodriguez has two excellent lawyers that have been
       working on the case for some time so at this point on our third special setting with
       the jury out in the hall ready to come in, I’m going to deny your—your motion to
       withdraw simply because I think any problems you’re experiencing we would just
       be passing on to the next attorney and I don’t see any benefit in delaying the case
       because it’s been a lengthy period of time. He is in custody, and you’ve spent a lot
       of time preparing. So the motion is of record, but it’s denied.

       The entire exchange between Rodriguez, his attorney, and the trial court occurred

immediately prior to jury selection. The trial court clearly balanced Rodriguez’s displeasure with

his trial counsel against “the needs of fairness and against the demands of [the court’s] calendar.”

Cf. Gonzalez-Lopez, 548 U.S. at 152 (citation omitted). At trial, Rodriguez was represented by

both of his court-appointed attorneys.

       The record supports defense counsel was prepared and represented Rodriguez throughout

the five-day trial. Counsel lodged objections, vigorously cross-examined the State’s witnesses,

and presented several defense witnesses. The record does not reflect, and Rodriguez has not

pointed this court to any evidence, that Rodriguez was actually harmed in any way by the trial

court’s denial of his motions. Rodriguez’s motion to dismiss that was mailed to the trial court was

a pre-printed form motion without any case-specific details or substantive arguments. A review

of the exchange between Rodriguez and defense counsel suggested Rodriguez’s chief complaint


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was defense counsel’s refusal to seek a motion for continuance or an acceptable plea agreement

from the State. While the trial court was still away from the bench, Rodriguez asked his counsel

to present his offer to the State. Counsel immediately complied, but the State rejected the offer.

        The purpose of the Sixth Amendment was met: Rodriguez received effective assistance of

counsel throughout his trial. See Gonzalez-Lopez, 548 U.S. at 152; Gonzalez, 117 S.W.3d at 837.

We conclude the trial court’s ruling was within the “zone of reasonable disagreement.” Gonzalez,

117 S.W.3d at 839; Hobbs, 359 S.W.3d at 926. Thus, the trial court did not abuse its discretion in

denying Rodriguez’s motion to dismiss his counsel. We overrule Rodriguez’s first issue.

                                        WITNESS TESTIMONY

        In his next issue, Rodriguez contends the trial court erred in allowing the State to solicit

witness testimony calling for legal conclusions.

A.      Standard of Review

        A trial court’s ruling on the admissibility of evidence is subject to an abuse of discretion

standard of review. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Davis v. State,

329 S.W.3d 798, 803 (Tex. Crim. App. 2010); Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.

Crim. App. 2006); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A reviewing

court will not reverse a trial court’s ruling on the admissibility of evidence so long as it falls within

the zone of reasonable disagreement. See Tillman, 354 S.W.3d at 435; Rodriguez, 203 S.W.3d at

841. We may not reverse a trial court’s decision on admissibility of evidence solely because we

disagree with the court’s determination. Rodriguez, 203 S.W.3d at 841.

B.      Arguments of the Parties

        Rodriguez contends the State improperly elicited testimony from Officer Kimberly Kory

that called for a legal conclusion. Officer Kory’s characterization of Rodriguez’s speed as

“dangerous” was analogous to asking a witness to determine whether an individual was negligent.
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       The State counters that whether Rodriguez’s actions were “clearly dangerous to human

life” is a question of fact and proper witness testimony. The State further argues that any alleged

error was waived by subsequent witnesses providing identical testimony.

C.     Proper Witness Testimony

       A witness may only testify to those matters about which the witness has personal

knowledge. See TEX. R. EVID. 602; Hassan v. State, 440 S.W.3d 684, 688 (Tex. App.—Houston

[14th Dist.] 2012, no pet.). Texas Rule of Evidence 701 permits a lay witness to offer opinion

testimony if that opinion is “(a) rationally based on the witness’s perception; and (b) helpful to

clearly understanding the witness’s testimony or to determining a fact in issue.” TEX. R. EVID.

701; see Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004). But see DeLeon v. State,

322 S.W.3d 375, 383 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (“No witness is

competent to voice an opinion as to guilt or innocence.”). However, if the opinion is otherwise

admissible, the testimony “is not objectionable because it embraces an ultimate issue to be decided

by the trier of fact.” Ex parte Nailor, 149 S.W.3d at 134; accord TEX. R. EVID. 704.

D.     Testimony in Question

       Rodriguez objects to the following testimony.

       State:         So when you got on the highway you said you saw him, he was—
                      from what you saw based on your training and experience, can you
                      tell us was—what his speed was?
       Officer Kory: I approximated the time he was probably going a hundred miles per
                     hour.
       State:         Okay. And is—is that dangerous?
       Officer Kory: Absolutely. That’s the reason I decelerated because there was no—
                     in my mind the safety aspect of it was there was no reason for me to
                     try to catch up to him at that point because he was not going to stop.




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E.     Analysis

       In this case, Officer Kory witnessed Rodriguez driving the vehicle in an unsafe manner.

Whether she believed his erratic driving—including traveling in excess of one hundred miles per

hour—was dangerous was her opinion based on her perception of Rodriguez’s actions. See TEX.

R. EVID. 701; see also Hassan, 440 S.W.3d at 688 (permitting officers to testify based on their

observations and experience). Officer Kory did not testify that she believed Rodriguez was guilty

of murder, only that she believed he was driving in a manner dangerous to human life. The fact

that it “embraces an ultimate issue to be decided by the trier of fact” does not make it inadmissible.

See Ex parte Nailor, 149 S.W.3d at 134.

       Because the trial court’s decision to admit the testimony in question was within the zone

of reasonable disagreement, we overrule Rodriguez’s second issue.

                                           CONCLUSION

       Rodriguez’s request to dismiss his appointed counsel was lodged immediately prior to voir

dire. The trial court noted this was the third special setting for Rodriguez. The trial court also

noted Rodriguez had the benefit of two highly qualified attorneys that were well prepared for the

trial. Although Rodriguez did not feel he could effectively communicate with his counsel, we

cannot say the trial court erred in denying Rodriguez’s motion to dismiss his appointed counsel.

       Because Officer Kory’s testimony describing Rodriguez’s erratic driving was rationally

based on her personal observations and experience, we cannot say the trial court abused its

discretion in allowing the testimony.

       Having overruled both of Rodriguez’s issues, we affirm the trial court’s judgment.


                                                   Patricia O. Alvarez, Justice

DO NOT PUBLISH


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