                               MEMORANDUM OPINION
                                       No. 04-11-00340-CR

                                    Roberto Garcia MUNOZ,
                                           Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                    From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010CR7011
                          Honorable George H. Godwin, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice

Delivered and Filed: March 14, 2012

AFFIRMED

           Appellant, Roberto Garcia Munoz, was indicted on one count of aggravated sexual

assault of a child and one count of indecency with a child by contact. Appellant entered a plea of

not guilty to both charges and a jury trial commenced. However, after the State presented its

first three witnesses, appellant accepted a plea offer from the State instead of continuing with the

trial. As part of the plea offer, the State waived and abandoned the charge of aggravated sexual

assault of a child. Appellant then changed his plea to no contest to the charge of indecency with
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a child by contact. The trial court accepted the plea agreement and sentenced appellant to twelve

years’ confinement. Appellant raises two issues on appeal. First, appellant challenges the trial

court’s denial of his request for new counsel. Second, appellant claims he was denied effective

assistance of counsel. We affirm.

                     FAILURE TO APPOINT NEW TRIAL COUNSEL

       In his first issue on appeal, appellant contends the trial court abused its discretion in

denying his request to dismiss his court-appointed trial counsel, thus denying him the right to

effective assistance of counsel as guaranteed under the Sixth Amendment of the United States

Constitution and article 1, subsection 10 of the Texas Constitution. Appellant claims this failure

to appoint new counsel violated his due process right under article 1, subsection 19 of the Texas

Constitution.

       On the first day of appellant’s trial and before voir dire, defense counsel announced he

was ready but stated appellant wanted to address the court. After discussing the rejected plea

agreements and the evidence likely to be presented in his case, appellant indicated he wanted

new trial counsel because he felt that his current court-appointed counsel was “not helping [him]

that much.” Appellant also indicated that his counsel had only visited with him once in the jail,

only visited with his “woman” and not his brothers at his office, and didn’t “feel he [was]

helping [him] 100 percent like an attorney must do.” In response, the trial court stated that it

would not appoint him new counsel because the case was set for trial that day and the court

believed his current counsel would adequately represent appellant and protect his rights.

       We review the trial court’s ruling on whether to grant a motion to dismiss appointed

counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 566 (Tex. Crim.

App. 2000). A trial court has no duty to search for counsel agreeable to a defendant. Id.



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Generally, disagreement concerning trial strategy is not a typical ground for withdrawal. Id. A

defendant does not have the right to choose appointed counsel, and unless he waives his right to

counsel and chooses to represent himself, or shows adequate reasons for the appointment of new

counsel, he must accept court-appointed counsel. Thomas v. State, 550 S.W.2d 64, 68 (Tex.

Crim. App. 1977); Burks v. State, 792 S.W.2d 835, 838 (Tex. App.—Houston [1st Dist.] 1990,

writ ref’d).

        A defendant bears the burden of making the trial court aware of his dissatisfaction with

counsel, stating his grounds for dissatisfaction, and offering evidence in support of his complaint.

Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985). Additionally, “the right to counsel

may not be manipulated so as to obstruct the judicial process or interfere with the administration

of justice.” King, 29 S.W.3d at 566. “Thus, an accused may not wait until the day of trial to

demand different counsel or to request that counsel be dismissed so that he may retain other

counsel.” Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976).

        Here, appellant did not adequately establish he was entitled to different counsel. Instead,

appellant only made a broad assertion that his counsel was not helping him as much as he should.

However, the record reflects that his trial counsel visited with him in jail, made several court

appearances on appellant’s behalf, and visited and explained the evidence in the case with the

woman appellant referred to who came to counsel’s office. Further, appellant waited until the

day of trial to request new counsel, but the record indicates he was represented by the counsel he

complains of for at least eight months. As such, it was within the discretion of the trial court to

determine the appointment of new counsel would obstruct the orderly administration of justice

by preventing appellant from proceeding to trial that day. On this record, we cannot conclude




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the trial court abused its discretion, nor denied appellant his due process right, by denying

appellant’s motion to dismiss court-appointed counsel.

                       INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue on appeal, appellant contends his trial counsel provided ineffective

assistance because his counsel did not (1) consult with him nor conduct investigations into his

case; (2) file any pre-trial motions challenging the State’s evidence; (3) develop legal strategies

to challenge the admissibility of appellant’s video recorded statement in which he allegedly

confessed to the offense; (4) object to certain testimony by the complainant’s mother about the

complainant’s sister; and (5) make an opening statement.

       We review appellant’s complaint under the well-established standard set forth in

Strickland v. Washington, 466 U.S. 668, 690 (1984). We will not speculate as to the reasons

why trial counsel acted as he did; instead, we must presume that the actions were taken as part of

a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837–38 (Tex.

Crim. App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective

assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003);

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Generally, the record on direct

appeal is not sufficient to establish that counsel’s representation was so deficient and so lacking

in strategic or tactical decision-making as to overcome the strong presumption that counsel’s

performance was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002); Thompson, 9 S.W.3d at 813–14.

       Here, as previously mentioned, the record reflects appellant’s trial counsel consulted with

appellant pre-trial. Similarly, the record demonstrates counsel extensively cross-examined all

three of the witnesses presented by the State before the plea agreement. Thus, appellant’s



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contention that trial counsel did not consult with him or conduct investigations in his case is

unfounded. Additionally, while counsel did not file any pre-trial motions challenging the State’s

evidence, it is apparent in the record that counsel did file a motion for an examining trial.

Furthermore, “[t]he failure to file pre-trial motions is not categorically deemed ineffective

assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his

trial strategy.” Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001, pet. ref’d).

Likewise, we will not speculate as to trial counsel’s strategy in opting not to challenge the

admissibility of appellant’s videotaped statement.

       Additionally, appellant has failed to show and does not cite any legal authority that the

trial court would have erred in overruling any objection appellant claims his trial counsel failed

to make regarding parts of the complainant’s mother’s testimony. See Ex parte White, 160

S.W.3d 46, 53 (Tex. Crim. App. 2004) (“To show ineffective assistance of counsel for the failure

to object during trial, the applicant must show that the trial judge would have committed error in

overruling the objection.”). Moreover, because the record is silent, we will not speculate on trial

counsel’s strategy with regard to this line of questioning by the State. Lastly, appellant is

incorrect in his assertion that his trial counsel failed to make an opening statement. Instead, the

record reflects trial counsel decided to wait “until the defendant’s case” to make an opening

statement—which never happened because appellant agreed to the plea agreement before his

case-in-chief.

       In any case, the first prong of the Strickland test presumes trial counsel is better

positioned than the appellate court “to judge the pragmatism of the particular case, and that

[counsel] ‘made all significant decisions in the exercise of reasonable professional judgment.’”

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (quoting Delrio v. State, 840



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S.W.2d 443, 447 (Tex. Crim. App. 1992)). In applying this test, we should avoid second

guessing trial counsel’s tactical decisions that do not fall below the objective standard of

reasonableness. Young, 991 S.W.2d at 837. Here, appellant’s complaint requires us to speculate

on defense counsel’s strategy, which we may not do. Because the record is not sufficient to

establish that counsel’s representation was so deficient and so lacking in strategic or tactical

decision-making as to overcome the strong presumption that counsel’s performance was

reasonable and professional, we conclude appellant has not met his burden of showing that trial

counsel’s representation fell below an objective standard of reasonableness or deviated from

prevailing professional norms. See Strickland, 466 U.S. at 688.

                                        CONCLUSION

       We overrule appellant’s issues on appeal and affirm the judgment of the trial court.



                                                Sandee Bryan Marion, Justice

Do not publish




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