Opinion issued January 23, 2014




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-12-00905-CR
                            ———————————
                          GALVIN DIXON, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 176th District Court
                            Harris County, Texas
                        Trial Court Case No. 1331100



                          MEMORANDUM OPINION

      A jury convicted appellant, Galvin Dixon, of the second-degree felony

offense of aggravated assault, and, after appellant pleaded “true” to the allegations

in two enhancement paragraphs, the jury assessed punishment at fifty years’
confinement. 1 In his sole issue on appeal, appellant contends that the trial court

erroneously refused to allow his retained counsel to withdraw from representation

prior to trial.

       We affirm.

                                   Background

       On December 21, 2011, Cody Bederman allegedly cut appellant off on the

feeder road of Highway 59 in southwest Houston. In retaliation, as appellant and

Bederman approached the entrance ramp to the freeway, appellant pulled his

vehicle in front of Bederman’s, stopped his car, jumped out of his car, and yelled at

Bederman, who remained in her car. Bederman testified that, as he walked toward

her car, appellant had a gun in his hand. Bederman called 9-1-1 and reported

appellant’s conduct. Houston Police Department officers arrested appellant later

that evening, and the State originally charged him with aggravated assault by

information on December 22, 2011.

       The trial court appointed counsel to represent appellant on December 27,

2011, but on January 25, 2012, appellant filed, and the trial court granted, a motion

to substitute retained counsel for appointed counsel.

       On April 25, 2012, appellant appeared with his retained counsel at a hearing

and informed the trial court that he wished to set his case for trial. During this


1
       See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011).
                                         2
hearing, the State informed the court of the probable cause, and the trial court

admonished appellant on the range of punishment and the potential effect of his

prior convictions. The State also informed the trial court of its most recent plea

bargain offer and that appellant’s “only counteroffer was innocence.” During this

hearing, the following exchange occurred between appellant and the trial court:

      [Appellant]:       I may be firing this counsel defending me, so if I
                         do sign with this trial today, would I—would I still
                         be able to use another attorney?
      The Court:         Sir, you can hire any lawyer that you wish to hire,
                         but that lawyer will have to be ready for trial on
                         the date that I give you today.
      [Appellant]:       Yes ma’am.
      The Court:         So if you’re going to change counsel, I would just
                         advise you that you do it quickly so that that
                         lawyer has enough time to prepare for your trial.
      [Appellant]:       Yes, ma’am.
      The Court:         It’s always hard on a lawyer when they get hired
                         and come in here and find out they’re set for trial
                         the next day.
      [Appellant]:       Yes, ma’am.
      The Court:         This is a serious felony offense and you’re looking
                         at a boat load of punishment range, so any lawyer
                         you get is going to want to have an opportunity to
                         prepare. You need to, whatever lawyer you hire, if
                         you do, you need to make sure that lawyer
                         understands that the case is set for trial and that
                         you’ve been told that all plea bargaining—which
                         you’re not interested in anyway.
      [Appellant]:       I’m not signing for nothing.


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      The trial court then emphasized the importance of appellant’s cooperating

with his counsel, and appellant responded that retained counsel “still ain’t doing

his job. He ain’t done nothing since he’s been on the case.” The court asked

appellant what he wanted retained counsel to do that had not been done, and

appellant responded, “I done came with evidence, picture, photos, the law men

walking across my car showing him my car haven’t been in no wreck. I done

sending photos, everything, all that, [retained counsel is] saying that the DA [is]

saying none of that matters. That does matter with this case.” The trial court

suggested that this could be a strategy decision on retained counsel’s part, and

appellant responded, “[W]e [are] not on the same page.” The trial court then

stated, “That will be between you and whoever you hire. I can’t really get into

that. Those are his calls, not mine.” The trial court also discussed two motions

that appellant had filed pro se and informed appellant that it would not rule on

these motions while he was represented by counsel.

      At the hearing, the trial court set the case for trial on September 14, 2012,

almost five months later, and asked retained counsel, “assuming you’re still the

attorney,” if that date was acceptable for him. Retained counsel responded that it

was. The court also set the pretrial conference for August 15, 2012, approximately

one month before trial.




                                        4
      On May 7, 2012, appellant filed a pro se motion to dismiss his retained

counsel and to appoint new counsel. In this motion, appellant alleged that retained

counsel had failed to provide reasonably effective assistance in that counsel had

had no contact with appellant despite appellant’s requests to discuss his defense

and trial strategy. The next day, appellant mailed a letter to the trial court that

stated:

      I have sought help (to defend myself against charges brought against
      me) from Attorney At Law Johnell Williams. Although I have shown
      him photos that clearly would exonerate me of these charges he
      continues to not act on my behalf. I also have made him aware of
      other facts and information that could expedite this case from your
      Court Docket long before the scheduled Trial Date. Still, Mr.
      Williams has gone more than 3 months without communicating with
      me and could continue doing so up until my August Trial Date.
      Valuable evidence in my favor is or has already been tainted or has
      eroded due to so much time lapsing without proper, timely
      investigation being applied to my defense. Since I am receiving NO
      response or visits from Attorney Williams I have filed a Motion to
      have Mr. Williams DISMISSED from my case and am requesting
      Your Honor to [p]lease appoint me an attorney immediately at your
      convenience.
      FURTHER, being that I have no scheduled appearances in Your Court
      prior to August’s Trial Date I am PRAYING that Your Honor would
      [p]lease RULE on this motion soon in order that I will have adequate
      time to inform the appointed attorney of your choosing on the
      available evidence that may bring this cause to an immediate close
      months before the scheduled trial.

The trial court did not rule on appellant’s pro se motion to dismiss.

      The trial court held a pretrial conference on August 16, 2012. That day,

retained counsel filed a motion to withdraw, stating only that appellant had “failed
                                          5
to comply with the terms of the employment agreement.” Retained counsel did not

elaborate further on this point or offer any relevant evidence at the hearing. The

trial court noted that appellant had filed two pro se motions to dismiss retained

counsel and stated, “As I believe we discussed before, you hired Mr. Williams. He

is your attorney of record, and will continue to be so.” The following exchange

occurred:

      The Court:          Motion to withdraw as counsel, as I believe we
                          discussed off the record, this is not timely. The
                          case is set for a jury trial within less than a month.
                          So you’re on the hook for trial, Mr. Williams.
      [Defense counsel]: I believe it was stated at the last hearing, [Y]our
                         Honor, that he was going to get new counsel.
      The Court:          Well, but have you gotten new counsel, Mr.
                          Dixon? I mean, nobody showed up today to do
                          this pre-trial conference, so I’m taking that to
                          mean that there is no other lawyer.
      [Appellant]:        I can’t afford one.
      The Court:          We talked last time, you wanted to hire a lawyer
                          and I told you you could hire whoever you wanted
                          to. But like I said, you hired Mr. Williams. He’s
                          your attorney of record. He’s going to try the case.

Later, appellant and the trial court further discussed appellant’s dissatisfaction with

retained counsel:

      The Court:          Well, I would suggest to you that you cooperate
                          with the lawyer that you have, because you got less
                          than a month to prepare for trial. So he’s going to
                          be it. So if you’re not communicating with him or
                          whatever—

                                          6
      [Appellant]:       I mean, I done wrote him, I done had my wife
                         called and everything. Just like four months ago
                         when the last time I been in court, I haven’t heard
                         anything from him, you know what I’m saying,
                         until yesterday. I don’t know what else I can be
                         able to do. That’s why I didn’t want him up on my
                         case.
      The Court:         Well, that’s who you hired.
      [Appellant]:       I understand.
      The Court:         Okay. Mr. Williams, you are ordered to be here at
                         9:00 on your trial date, which is September 14,
                         2012. Be ready to go to trial.

The trial court denied retained counsel’s motion to withdraw.

      Retained counsel represented appellant at trial. The jury found appellant

guilty of the offense of aggravated assault and, after appellant pleaded true to the

allegations in two enhancement paragraphs, assessed punishment at fifty years’

confinement. This appeal followed.

                        Pre-trial Withdrawal of Attorney

      In his sole issue, appellant contends that the trial court erroneously denied

retained counsel’s pretrial motion to withdraw from representation.

      Both the federal and Texas constitutions guarantee that a defendant in a

criminal proceeding has the right to have assistance of counsel. Gonzalez v. State,

117 S.W.3d 831, 836 (Tex. Crim. App. 2003); see U.S. CONST. amend. VI; TEX.

CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 2005)

(granting accused right to be heard by counsel in all criminal prosecutions). This

                                         7
right encompasses the defendant’s right to obtain assistance from counsel of the

defendant’s choosing. See Gonzalez, 117 S.W.3d at 836–37; see also Powell v.

Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58 (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”).

      However, the defendant’s choice of counsel is neither unqualified nor

absolute, and although there is a strong presumption in favor of the 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.” Gonzalez, 117 S.W.3d at 837; see also

Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697 (1988) (“[T]he

essential aim of the [Sixth] Amendment is to guarantee an effective advocate for

each criminal defendant rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers.”). Thus, the defendant’s right to

counsel of choice must be balanced with the trial court’s need for prompt and

efficient administration of justice. Ex parte Windham, 634 S.W.2d 718, 720 (Tex.

Crim. App. 1982).




                                          8
      The trial court has the discretion to determine whether counsel should be

allowed to withdraw from a case. King v. State, 29 S.W.3d 556, 566 (Tex. Crim.

App. 2000); Johnson v. State, 352 S.W.3d 224, 227 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d) (“We review a trial court’s decision on an attorney’s motion

to withdraw for an abuse of discretion.”).         If a trial court unreasonably or

arbitrarily interferes with the defendant’s right to choose counsel, its actions rise to

the level of a constitutional violation. Gonzalez, 117 S.W.3d at 837. As long as

the trial court’s ruling falls within the “zone of reasonable disagreement,” the trial

court does not abuse its discretion and we will uphold the ruling. Johnson, 352

S.W.3d at 227 (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App.

1997)); see also Rosales v. State, 841 S.W.2d 368, 375 (Tex. Crim. App. 1992)

(“[U]nder an abuse of discretion standard it is not our role to reweigh the factors

[relevant to whether the trial court should have granted a motion for continuance],

but to determine whether the trial court could reasonably have balanced [the

factors] and concluded that the fair and efficient administration of justice weighed

more heavily than appellant’s right to counsel of his choice.”). 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.




                                           9
      Generally, “personality conflicts and disagreements concerning trial strategy

are typically not valid grounds for withdrawal.” King, 29 S.W.3d at 566 (citing

Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990)). The trial court has no

duty to search for counsel agreeable to the defendant. Id. The defendant bears the

burden of making the trial court aware of his dissatisfaction with counsel, stating

the grounds for his dissatisfaction, and offering evidence in support of his

complaint. Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no

pet.) (citing Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985)); see also

Butler v. State, 300 S.W.3d 474, 485 (Tex. App.—Texarkana 2009, pet. ref’d)

(holding that defendant bears burden of “proving he is entitled to new counsel”).

      Here, appellant first expressed his dissatisfaction with retained counsel at a

hearing on April 25, 2012, at which he also requested that the trial court set a trial

date. After the trial court admonished appellant concerning the punishment range

and the potential effect of his prior convictions and heard probable cause, appellant

informed the trial court that he “may be firing this counsel defending me” and

asked whether he would be able to use another attorney if the court set a trial date.

Beyond stating that retained counsel “still ain’t doing his job” and “ain’t done

nothing since he’s been on the case” and that he had provided pictures to retained

counsel that he thought were relevant to his case but that counsel did not, appellant

did not provide any evidence relating to his disagreement with retained counsel.

                                         10
The trial court informed appellant that he could hire any lawyer he wished, but

whoever he hired would need to be ready for trial on the date the trial court set.

The court suggested that, if appellant wished to hire a new attorney, he needed to

do so quickly so the attorney could adequately prepare for trial. After consulting

with retained counsel regarding his availability for trial, the trial court set

appellant’s trial date for September 14, 2012, almost five months later, with a

pretrial conference to be held approximately one month before that date.

      The trial court held a second pretrial conference on August 16, 2012,

approximately four months after the first pretrial hearing and one month before the

scheduled trial date. Retained counsel moved to withdraw on that date, stating

only that appellant had “failed to comply with the terms of the employment

agreement.” Counsel did not support this motion with affidavits or any other

evidence, nor did the motion detail the terms of the employment agreement or

provide evidence showing that appellant deliberately disregarded the employment

agreement. See Riley v. State, 676 S.W.2d 178, 180 (Tex. App.—Dallas 1984, no

pet.) (stating, in context of retained appellate attorney desiring to withdraw on

appeal due to appellant’s failure to pay fee, “Counsel may be allowed to withdraw

upon proof that the client deliberately disregarded a fee arrangement, but not upon

a showing that the client was merely delinquent in satisfying his obligations to

counsel”); see also Robinson v. State, 661 S.W.2d 279, 283 (Tex. App.—Corpus

                                        11
Christi 1983, no pet.) (“Retained counsel, even one who has not been fully

compensated for past services, cannot wait until a critical state of the proceedings

is reached and attempt to withdraw from the case.”). Furthermore, counsel moved

to withdraw one month before the scheduled trial date. The trial court could have

reasonably concluded that any counsel appointed to replace retained counsel would

not have sufficient time to prepare for trial. See Green v. State, 840 S.W.2d 394,

408–09 (Tex. Crim. App. 1992) (considering fact that counsel filed motion to

withdraw just over one month before trial in holding that trial court did not abuse

its discretion in denying motion), overruled on other grounds by Trevino v. State,

991 S.W.2d 849 (Tex. Crim. App. 1999).

      The following exchange between appellant and the trial court also occurred

at this hearing:

      The Court:         Motion to withdraw as counsel, as I believe I
                         discussed off the record, this is not timely. The
                         case is set for a jury trial within less than a month.
                         So you’re on the hook for trial, Mr. Williams.
      [Defense counsel]: I believe it was stated at the last hearing, [Y]our
                         Honor, that he was going to get new counsel.
      The Court:         Well, but have you gotten new counsel, Mr.
                         Dixon? I mean, nobody showed up today to do
                         this pre-trial conference, so I’m taking that to
                         mean that there is no other lawyer.
      [Appellant]:       I can’t afford one.
      The Court:         We talked last time, you wanted to hire a lawyer
                         and I told you you could hire whoever you wanted

                                        12
                          to. But like I said, you hired Mr. Williams. He’s
                          your attorney of record. He’s going to try the case.

Appellant later stated that retained counsel had not been communicating with him,

which was “why [he] didn’t want [counsel] up on [his] case.” The trial court

denied retained counsel’s motion to withdraw.

      Appellant first expressed his dissatisfaction with retained counsel nearly five

months before trial, a complaint he reiterated at a pretrial hearing one month before

trial. However, appellant never presented any evidence, other than his unsworn

statements at the two pretrial hearings, relevant to the disagreements he was

allegedly having with counsel.      See King, 29 S.W.3d at 566 (holding that

disagreement concerning trial strategy is generally not valid ground for withdrawal

of attorney from representation). Likewise, retained counsel never presented any

evidence to substantiate his allegation in his motion to withdraw that appellant had

“failed to comply with the terms of the employment agreement.” The burden is on

appellant, as the party seeking withdrawal of counsel, to offer evidence in support

of his complaint concerning his counsel. See Butler, 300 S.W.3d at 485; Maes,

275 S.W.3d at 71.

      Furthermore, the trial court informed appellant at the April 25, 2012 hearing,

nearly five months before the scheduled trial date, that he could hire any counsel

he wished to represent him, but it also informed him that the trial date was now set

and would not be moved, and, thus, if appellant wished to hire new counsel, he
                                         13
needed to do so expeditiously in order for the new counsel to be prepared for trial.

At the second pretrial hearing, four months after the first pretrial hearing and one

month before the trial date, the trial court noted that, despite its earlier

admonishment, appellant had not secured new counsel. Only retained counsel was

present at the hearing to represent appellant, and appellant gave no indication that

he had spoken with substitute counsel, that he had hired or attempted to hire

substitute counsel, or that substitute counsel would be ready to proceed to trial by

the scheduled trial date. Appellant did not identify specific counsel that he wished

to represent him in retained counsel’s stead.

      We conclude that, under the facts of this case, the trial court reasonably

could have determined that the interest in fair and efficient administration of

justice outweighed appellant’s right to counsel of his choice. See Gonzalez, 117

S.W.3d at 837; Rosales, 841 S.W.2d at 375. We hold that the trial court did not

abuse its discretion in denying retained counsel’s motion to withdraw.

      We overrule appellant’s sole issue. 2




2
      We note that, aside from stating that the trial court’s denial of retained counsel’s
      motion to withdraw “ultimately served to deny Appellant his constitutionally
      guaranteed right to effective assistance of counsel,” appellant makes no argument
      and cites no record evidence or authority that retained counsel’s actions violated
      the standard for effective assistance of counsel as set out in Strickland v.
      Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and its progeny.
                                           14
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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