Affirmed and Memorandum Opinion filed November 13, 2018.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00819-CR

                         KERRY JOHNSON, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1524000

                MEMORANDUM                        OPINION

      Appellant pleaded guilty to aggravated robbery without an agreed
recommendation for punishment. The trial court sentenced appellant to twenty
years’ confinement. In two issues, appellant contends that (1) his trial counsel
rendered ineffective assistance, and (2) the trial court erred by denying appellant’s
motion to dismiss and replace his court-appointed counsel. We affirm.
                          I.     INEFFECTIVE ASSISTANCE

      In his first issue, appellant contends that his trial counsel rendered ineffective
assistance by failing to object to factual inaccuracies regarding an extraneous offense
in the presentence investigation (PSI) report and that trial counsel should have
adduced evidence to refute the extraneous offense.

A.    Background

      Neither the State nor appellant presented any evidence at the sentencing
hearing. The parties argued for sentences based on the PSI report, which contained
summaries of the offense and statements made by police officers, appellant, and
others. Appellant took responsibility for the aggravated robbery, but as the
arguments of the parties at the sentencing hearing and the PSI report show, the
parties disputed whether appellant had committed an extraneous offense of
aggravated assault against a public servant.

      The PSI report stated that as appellant fled from police officers, he “turned
around, pointed a pistol at [an officer,] and fired a round directly at her in an attempt
to kill her.” Appellant, however, stated that “as he jumped over a fence, the gun
dropped and when he picked it up, it discharged.” Appellant said that he “did not
intentionally shoot at the police officers.”

      At the sentencing hearing, appellant’s trial counsel informed the court that he
disagreed with the State’s position that appellant had fired at the officer. Trial
counsel argued that the officers’ reports did not show an intentional firing of the gun,
and that an atomic absorption test did not reveal any gunshot residue on appellant’s
hands.

      Before sentencing appellant to twenty years’ confinement, the trial court said
that it was the court’s belief that “there was an intentional firing by this defendant.”

                                           2
B.    Legal Principles for Challenging a PSI Report

      A trial court must allow a defendant to “comment” on a PSI report, and the
court may allow a defendant to introduce testimony or other information alleging a
factual inaccuracy in the report. See Tex. Code Crim. Proc. art. 42A.255(b); Stringer
v. State, 309 S.W.3d 42, 45 (Tex. Crim. App. 2010). The purpose of a PSI report is
to provide the sentencing court with a wide range of information, including
information about unadjudicated offenses, without an adversarial hearing. See
Stringer, 309 S.W.3d at 47–48. Holding a “mini-trial” for sentencing would thwart
the purpose of the PSI report. Id. at 48.

C.    Legal Principles for Ineffective Assistance

      To prevail on a claim of ineffective assistance, an appellant must prove by a
preponderance of the evidence that (1) counsel’s performance was deficient by
falling below an objective standard of reasonableness and (2) counsel’s deficiency
caused the appellant prejudice. See Strickland v. Washington, 466 U.S. 668, 687–88,
694 (1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010).

      Often a claim of ineffective assistance may not be addressed on direct appeal
because the record is not sufficient to conclude that counsel’s performance was
deficient under the first Strickland prong. See Andrews v. State, 159 S.W.3d 98, 103
(Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.
App. 2005). “Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within a
wide range of reasonable representation.” Salinas, 163 S.W.3d at 740. “To overcome
the presumption of reasonable professional assistance, any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Id. (quotation omitted). If
counsel has not had an opportunity to explain their actions, we may not find deficient
                                            3
performance unless the conduct was “so outrageous that no competent attorney
would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005) (quotation omitted).

      To show that counsel’s failure to object amounted to ineffective assistance, an
appellant must show that the trial court would have committed error by overruling
the objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). And,
to show that counsel’s failure to call a witness amounted to ineffective assistance,
an appellant must show that the witness had been available to testify and that the
testimony would have been of some benefit to the defense. Ex parte Ramirez, 280
S.W.3d 848, 853 (Tex. Crim. App. 2007); King v. State, 649 S.W.2d 42, 44 (Tex.
Crim. App. 1983).

D.    No Ineffective Assistance

      Appellant contends that his trial counsel failed to object to factual inaccuracies
in the PSI report and that counsel should have “called the various officers to testif[y]
to the lack of personal knowledge as to firing the shot at the officers, and to testif[y]
that an atomic absorption test was performed, and result was negative.”

      Counsel’s reasoning for not formally objecting to the PSI report and for not
calling the police officers to testify at appellant’s sentencing hearing is not contained
in the record. Consistent with Article 42A.255, counsel commented on the PSI report
by noting that the officers’ and appellant’s versions of the shooting differed. Without
objection from the State, counsel referred to the officers’ statements contained in
their police reports and the atomic absorption test results. And, counsel’s failure to
call two adverse witnesses—police officers who claimed to have been fired upon—
cannot be described as so outrageous that no competent attorney would have
engaged in it. See Bone v. State, 77 S.W.3d 828, 834 n.21 (Tex. Crim. App. 2002)
(noting that trial counsel may intentionally decline to question a witness if the
                                           4
testimony might not be beneficial); Joseph v. State, 367 S.W.3d 741, 744 (Tex.
App.—Houston [14th Dist.] 2012, pet. ref’d) (“[T]he decision to call witnesses is
generally a matter of trial strategy.”).

      Appellant has failed to show that the trial court would have erred by
overruling any objection to the PSI report, see Ex parte Martinez, 330 S.W.3d at
901, or that any witnesses were available to testify and would have benefited
appellant, see Ex parte Ramirez, 280 S.W.3d at 853. Accordingly, appellant has not
demonstrated that his trial counsel was ineffective.

      Appellant’s first issue is overruled.

                 II.    MOTION TO REPLACE APPOINTED COUNSEL

      In his second issue, appellant contends that the trial court abused its discretion
by denying appellant’s pro se “motion to dismiss court appointed attorney and
appoint new counsel to act on behalf of defendant.” In his motion, appellant had
complained about his trial counsel’s failure to assist in getting a bond reduction,
failure to get two pending charges dropped, failure to work in appellant’s best
interest, trying to get appellant to “sign for punishments,” and promising “nothing
but prison time.”

      A trial court has no duty to search for counsel who is agreeable to the
defendant. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). Once the trial
court has appointed an attorney to represent an indigent defendant, the defendant has
been accorded the protections provided under the Constitution. Malcom v. State, 628
S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982). “Thereupon, the defendant
carries the burden of proving that he is entitled to a change of counsel.” Id. No Texas
case makes clear exactly what a defendant must establish to entitle him to a change
of appointed counsel. 42 George E. Dix & John M. Schmolesky, Texas Practice


                                           5
Series: Criminal Practice and Procedure § 29:48 (3d ed. 2011). But, personality
conflicts and disagreements concerning trial strategy are typically not valid grounds
for withdrawal of appointed counsel. King, 29 S.W.3d at 566. Appellant cites no
authority to demonstrate what grounds are sufficient to show an abuse of discretion
in failing to replace appointed counsel.

       Assuming without deciding that appellant was not required to preserve this
type of alleged error by obtaining a ruling from the trial court, we conclude that the
trial court did not abuse its discretion by failing to replace appellant’s counsel
because appellant failed to prove he was entitled to a change of counsel.1

       Appellant filed his motion more than a month before pleading guilty. Then,
he signed plea papers with the following statement: “I am satisfied that the attorney
representing me today in court has properly represented me and I have fully
discussed this case with him.” At the plea hearing, appellant and the trial court had
the following colloquy:

       Court:           You are represented in your case by Mr. Williams. Have
                        you had enough time to visit with him about your case?
       Appellant:       Yes, sir.
       Court:           Has he been able to answer all of your questions?
       Appellant:       Yes, sir.
       Court:           Do you have any questions of Mr. Williams, or of me,
                        before we go any further in these proceedings?

       1
           Appellant contends that his motion “was not ruled on, so therefore denied.” But see
Llamas v. State, 270 S.W.3d 274, 277 (Tex. App.—Amarillo 2008, no pet.) (no error preserved
when the trial court did not rule on the defendant’s motion to replace appointed counsel); Lisai v.
State, No. 05-01-00664-CR, 2003 WL 722729, at *1 (Tex. App.—Dallas Mar. 4, 2003, no pet.)
(mem. op., not designated for publication) (same); Williams v. State, No. 14-94-00537-CR, 1995
WL 628151, at *2 (Tex. App.—Houston [14th Dist.] Oct. 26, 1995, no pet.) (mem. op., not
designated for publication) (no error preserved when the defendant did not present his motion to
the trial court or request a hearing, and the defendant appeared for trial and voiced no complaint
about his attorney).

                                                6
      Appellant:      No, sir.

Appellant never asked to put on any evidence to show his entitlement to replacement
of his court-appointed counsel.

      Under these circumstances, we cannot conclude that the trial court abused its
discretion by failing to replace appellant’s court-appointed counsel. See King, 29
S.W.3d at 566 (trial court did not err by denying court-appointed counsel’s motion
to withdraw when appellant was given the opportunity at a hearing to expand on his
reasons for dissatisfaction with counsel and did not do so); see also Hill v. State, 686
S.W.2d 184, 187 (Tex. Crim. App. 1985) (no error was presented when the
defendant failed to ask for a hearing on his request for replacement counsel;
reasoning that “in addition to making the court aware of his dissatisfaction with
counsel and stating the grounds for the dissatisfaction, a defendant also bears the
responsibility of substantiating his claim”).

      Appellant’s second issue is overruled.

                                  III.   CONCLUSION

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




                                         /s/       Ken Wise
                                                   Justice


Panel consists of Justices Donovan, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                               7
