Opinion filed January 19, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00055-CR
                                        __________

                     LEONARD RAY ROBERTSON, Appellant

                                              V.

                             STATE OF TEXAS, Appellee


                           On Appeal from the 35th District Court

                                     Brown County, Texas

                                 Trial Court Cause No. CR20086


                           MEMORANDUM OPINION

       The trial court convicted Leonard Ray Robertson, appellant, of the offense of delivery of
methamphetamine in an amount of one gram or more but less than four grams. Upon appellant’s
plea of true to the enhancement allegations, the trial court assessed his punishment at
confinement for life. We affirm.
       Appellant presents four issues for appellate review.    In the first and second issues,
appellant challenges the legal and factual sufficiency of the evidence regarding the amount of
methamphetamine that he delivered. In the third issue, appellant asserts that the trial court
abused its discretion in failing to grant appellant’s second request regarding the withdrawal and
substitution of counsel. In his fourth issue, appellant complains that he received ineffective
assistance of counsel at trial.
         With respect to the first two issues, we review a challenge to the sufficiency of the
evidence, regardless of whether it is denominated as a legal or a factual sufficiency challenge,
under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on that evidence
and any reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
         The testimony at trial shows that a confidential informant working with police purchased
methamphetamine from appellant in a controlled buy.           On the occasion in question, the
confidential informant and his vehicle were searched prior to the transaction, and the confidential
informant was wired with an audio/video recording device. Sergeant Detective Shawn Dibrell
rode with the confidential informant to the residence where appellant resided, which is where the
transaction occurred. Detective Dibrell observed the confidential informant and appellant enter
the residence. Approximately two minutes later, the confidential informant returned to his
vehicle and immediately gave Detective Dibrell ―seven bags believed to be methamphetamine.‖
Six of them were pink, and one was clear with ―Pink Panthers‖ on it. A DVD of the transaction
was admitted into evidence.
         Detective Dibrell submitted the baggies to the Texas DPS Abilene Crime Laboratory for
testing. Each of the seven baggies contained methamphetamine. The substance in the six pink
baggies weighed a total of 1.13 grams, and the substance in the Pink Panther bag weighed .18
grams.
         The State also introduced at trial an admission made by appellant in open court at a
pretrial hearing in which appellant admitted that he sold five bags of methamphetamine.
Appellant asserts on appeal that he did not admit to selling seven bags or to selling
methamphetamine in an amount of one gram or more.             Although appellant may not have
admitted to the amount, other witnesses provided testimony, which the trier of fact was free to

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believe, supporting appellant’s conviction and indicating that the amount of methamphetamine
sold by appellant was 1.31 grams. We hold that a rational trier of fact could have found beyond
a reasonable doubt that the amount of methamphetamine delivered by appellant was between one
and four grams. Appellant’s first and second issues are overruled.
       In his third issue, appellant argues that the trial court abused its discretion in refusing to
grant appellant’s second request for the withdrawal and substitution of court-appointed counsel.
A trial court has no duty to search for counsel agreeable to the defendant. Solis v. State, 792
S.W.2d 95, 100 (Tex. Crim. App. 1990). Whether counsel should be allowed to withdraw from a
case is a matter within the discretion of the trial court. King v. State, 29 S.W.3d 556, 566 (Tex.
Crim. App. 2000). Personality conflicts and disagreements concerning trial strategy are typically
not valid grounds for withdrawal. Id. A defendant’s right to counsel may not be manipulated so
as to obstruct the judicial process or interfere with the administration of justice. Id.
       The record shows that on June 9, 2009, the trial court appointed attorney Todd Steele to
represent appellant. Appellant subsequently filed a motion to withdraw counsel and requested
that the trial court appoint another attorney. The trial court conducted a pretrial hearing on
September 21, 2009. As a result of the hearing, the trial court granted appellant’s motion,
allowed Steele to withdraw, and appointed attorney Kirk Fulk to represent appellant. At another
pretrial hearing held on October 19, 2009, appellant expressed his dissatisfaction with Fulk. On
November 10, 2009, appellant again requested that the trial court dismiss Fulk and appoint
another attorney. As a result of the deteriorating attorney/client relationship and appellant’s
desire to file a grievance against Fulk with the State Bar of Texas, Fulk filed a motion to
withdraw as counsel for appellant. The trial court held another hearing and denied Fulk’s motion
to withdraw and appellant’s request for a new court-appointed attorney.
       Appellant’s dissatisfaction with both attorneys stemmed from his belief that they were
not fighting for him and from the attorneys’ refusal to file motions that appellant wanted them to
file but that they deemed frivolous. Counsel cannot be faulted for refusing to file motions
proposed by appellant when counsel deemed the motions to be frivolous. Furthermore, the
prosecutor noted on the record that Fulk had been in his office repeatedly doing different things
for appellant, like asking for notes from the chemist; that Fulk had gone ―above and beyond‖
what is normal in these type of cases; and that Fulk had been diligent in his efforts on behalf of
appellant. We hold that the trial court did not abuse its discretion in denying Fulk’s motion to

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withdraw or in refusing to appoint a third attorney to represent appellant at trial. Appellant’s
third issue is overruled.
        In his final issue, appellant contends that he was denied the right to effective assistance of
counsel at trial because counsel did not file the motions that appellant requested counsel to file
and because counsel failed to present any witnesses, failed to make any objections, and failed to
make any meaningful argument at trial. In order to determine whether appellant’s trial counsel
rendered ineffective assistance at trial, we must first determine whether appellant has shown that
counsel’s representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result would have been different but
for counsel’s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988
S.W.2d 770 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.
1986). In order to assess counsel’s performance, we must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from
counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct
fell within the wide range of reasonable professional assistance, and appellant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy. Stafford v. State, 813 S.W.2d 503, 508–09 (Tex. Crim. App. 1991).
        The record from the pretrial hearings shows that both counsel thought the motions that
appellant desired to pursue were frivolous. Appellant asserts that, if the motions had been filed,
additional testing of the methamphetamine may have reached different results. Next, appellant
does not point this court to any evidence to which counsel should have objected at trial.
Furthermore, the record does not show what the alleged eyewitness’s testimony would have
been, nor does it reveal counsel’s reasons for failing to call that witness. See Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002) (where the court observed that the record on direct
appeal rarely contains sufficient information to reflect the failings of trial counsel). The record
also does not show any explanation from counsel regarding his closing argument at either phase
of trial. In his arguments, counsel essentially stated that the court had heard the evidence and
that the defense was leaving the decision in the trial court’s competent hands. We note that
appellant’s trial was a bench trial, not a jury trial.
        Based on our review of the record before us, we cannot hold that appellant has shown
that counsel’s representation fell below an objective standard of reasonableness. Moreover,

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appellant has not shown a ―reasonable probability‖ that the result of the proceedings below
would have been different but for the allegedly deficient performance. In his brief, appellant
asserts that the result of the proceedings ―might have‖ been different and that there is a
―possibility‖ the result would have been different. Appellant’s fourth issue is overruled.
       The judgment of the trial court is affirmed.




                                                             JIM R. WRIGHT
                                                             CHIEF JUSTICE


January 19, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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