Delvetra Lasherl Jennings v. State

NO. 07-08-0087-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 16, 2008 ______________________________ DELVETRA LASHERL JENNINGS,                                                                                                            Appellant v. THE STATE OF TEXAS,                                                                                                            Appellee _________________________________ FROM THE 64TH DISTRICT COURT OF HALE COUNTY; NO. A17,382-0710; HON. ROBERT W. KINKAID, JR., PRESIDING _______________________________ Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.           Delvetra Lasherl Jennings was indicted for burglary of a habitation with intent to commit aggravated assault. Yet, a jury convicted her of a lesser crime, that being burglary of a habitation with intent to commit simple assault. Here, she complains of the jury charge and asserts that the trial court erred in 1) omitting from it a verdict form that permitted the jurors to find her “not guilty” of any offense, 2) improperly commenting on the evidence via the charge, and 3) omitting from the charge the purportedly lesser-included offenses of assault and criminal trespass. We affirm the judgment.           Background           Appellant and the victim Michael Ray entered into a relationship whereby Ray agreed to install a new engine in appellant’s automobile. She paid him $750, but Ray did not complete the work. On October 8, 2007, appellant, her boyfriend Preston Alexander, and a third unidentified man entered Ray’s home through the front door, without knocking, assaulted him, and vandalized his house.           Issue 1 - “Not Guilty” Verdict Form           In her first issue, appellant complains that the trial court erred in failing to submit to the jury a “not guilty” form with respect to the crime for which she was ultimately convicted. We overrule the issue.            Three verdict forms were submitted to the jury. They allowed the jury to find appellant either not guilty of burglary of a habitation with intent to commit aggravated assault, guilty of burglary of a habitation with intent to commit aggravated assault, or guilty of burglary of a habitation with intent to commit assault. No request was made, however, for a form allowing the jury to find appellant not guilty of the lesser charge. Nor did appellant object to its absence. Thus, she waived the complaint. Contreras v. State, 54 S.W.3d 898, 906 (Tex. App.–Corpus Christi 2001, no pet.) (holding that the failure to include a “not guilty” form was not fundamental error and required an objection to preserve it for appellate review); Hegar v. State, 11 S.W.3d 290, 298 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (holding that the complaint about improper verdict forms had been waived due to the failure to object at trial); Uzal v. State, No. 03-99-0242-CR, 2000 Tex. App. Lexis 79 at *2-3 (Tex. App.–Austin January 6, 2000, no pet.) (not designated for publication) (holding that the omission of a not guilty form is not fundamental error).           Issue 2 - Comment on the Weight of the Evidence           Appellant next complains about a portion of the trial court’s charge being a comment on the weight of the evidence. Yet, she did not object to it below. Thus, the complaint was not preserved for review, and we overrule it. Contreras v. State, 54 S.W.3d at 906 (holding that the failure to object to an alleged comment on the weight of the evidence waives the claim); Martinez v. State, 691 S.W.2d 791, 793 (Tex. App.–El Paso 1985, no pet.) (holding the same).           Issue 3 - Lesser-Included Offenses           Finally, appellant contends that the trial court erred in failing to instruct the jury on the purported lesser-included offenses of simple assault and criminal trespass. We overrule the issue.           A party is entitled to an instruction on a lesser offense if 1) the lesser offense is included in the proof necessary to establish the greater offense, and 2) some evidence exists that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). In applying the first prong, we compare the elements of the lesser crime to those of the greater as the latter is described in the indictment. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). In other words, if the elements of the supposed lesser offense are not included in the wording of the crime contained in the indictment, it is not a lesser-included offense.           As previously mentioned, the State charged appellant with burglary of a habitation with the intent to commit aggravated assault. It described the crime in the indictment by alleging that she “with intent to commit the felony . . . of aggravated assault, intentionally or knowingly enter[ed] a habitation, without the effective consent of Michael Ray, the owner thereof.” To see if the first lesser offense sought by appellant (assault) falls within that verbiage, we turn to the applicable statute and discover that assault consists of 1) intentionally, knowingly, or recklessly causing another bodily injury, 2) intentionally or knowingly threatening another with imminent bodily injury, or 3) intentionally or knowingly causing physical contact with another under various circumstances (none of which are applicable here). Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2008). Comparing the elements of the two crimes reveals that the burglary accusation does not require proof of bodily injury, threats, or touching while assault does. For this reason, simple assault is not a lesser-included offense of burglary consisting of the entry into a habitation with the intent to commit aggravated assault. Rojas v. State, No. 07-05-0359-CR, 2006 Tex. App. Lexis 3222 at *4 (Tex. App.–Amarillo April 20, 2006, pet. ref’d) (not designated for publication) (involving burglary described as entry with the intent to commit assault); see also Jacob v. State, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995) (stating that aggravated assault itself is not a lesser offense of burglary of a habitation with intent to commit aggravated assault).        As for criminal trespass, it is defined as entering or remaining on or in property or a building of another without the other’s effective consent “and” having notice that the entry was forbidden or receiving notice to depart but failing to do so. Tex. Penal Code Ann. § 30.05(a)(1) & (2) (Vernon Supp. 2008). Comparing this offense to that alleged in the indictment reveals that the latter omits the element of notice, i.e. either notice that entry was forbidden or notice to depart. So, the facts necessary to convict one of criminal trespass are not within the scope of the offense alleged in the indictment. Thus, it too is not a lesser-included offense. See Salazar v. State, 259 S.W.3d 232, 233-34 (Tex. App.– Amarillo 2008, pet. granted) (holding that criminal trespass was not a lesser-included offense of burglary given the element of notice in the former which was absent from the latter).           Having overruled all of appellant’s issues, we affirm the judgment.                                                                             Brian Quinn                                                                           Chief Justice  Publish. sed="false" Name="Dark List Accent 6"/> NO. 07-09-0297-CR  IN THE COURT OF APPEALS  FOR THE SEVENTH DISTRICT OF TEXAS  AT AMARILLO  PANEL A  NOVEMBER 10, 2010     ROBERT DAVID ARGUIJO, APPELLANT  v.  THE STATE OF TEXAS, APPELLEE     FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;  NO. B3145-0708; HONORABLE EDWARD SELF, JUDGE    Before CAMPBELL and HANCOCK and PIRTLE, JJ.   MEMORANDUM OPINION            On August 28, 2009, Appellant, Robert David Arguijo, was adjudicated guilty of the offense of aggravated assault[1] and sentenced to ten years confinement and a fine of $5,000. In a single issue, Appellant asserts the trial court abused its discretion by denying him the opportunity to hire counsel of his choice. We affirm. Background            On February 12, 2008, Appellant entered a plea of guilty to the offense of aggravated assault. Pursuant to a plea bargain, he was granted five years deferred adjudication community supervision.            On December 31, 2008, the State filed an Amended Motion to Proceed to Adjudication alleging the following violations of the terms and conditions of his community supervision: (1) failed to report to the Community Supervision Officer, (2) failed to pay restitution, fees, and costs, and (3) failed to complete community service hours. On April 2, 2009, following a hearing on the State's amended motion, the trial court entered an order continuing Appellant on deferred adjudication community supervision and modifying the terms thereof to include, among other conditions, Appellant's commitment to the Lubbock County Court Residential Treatment Center.           On July 22, 2009, the State filed a subsequent Motion to Proceed to Adjudication alleging Appellant failed to complete the court-ordered residential treatment center program. On August 6, Appellant filed an affidavit of financial status which indicated he had no income and requested court-appointed counsel. The same day, the trial court appointed Kregg Hukill to represent Appellant and set a hearing on the State's Motion to Proceed to Adjudication for August 28.                       Prior to the commencement of the hearing on August 28, Appellant's counsel announced he was ready to proceed but indicated that Appellant wanted more time to hire an attorney of his choosing. Thereafter, the following exchange occurred: DEFENDANT:         Your honor, I would like to ask for more time so I could hire my own lawyer. COURT:                    You asked the Court to appoint a lawyer for you on                                       August 6, 2009. You submitted a financial affidavit                                       indicating you had no income. That's why Mr. Hukill                                            was appointed for you. So why do you think you can                                           afford to hire your own lawyer now? DEFENDANT:         My mother is going to help me. COURT:                    Why didn't she help before? DEFENDANT:         I had no contact with her at the time. I didn't know if                                     she was going to be able to.         COURT:                    How much time is it going to take you to get a lawyer,                                               then? DEFENDANT:         I think about---I'm not sure, your Honor. COURT:                    Not sure? DEFENDANT:         No, sir. COURT:                    I will deny your motion for continuance, then. We'll                                      proceed.             Appellant signed a stipulation of evidence admitting that all of the facts and allegations in the State's motion to adjudicate were true and correct and, thereafter, entered a plea of true. The trial court adjudicated Appellant guilty and sentenced him to ten years confinement and assessed a $5,000 fine, court costs, restitution and attorney's fees--previously assessed but unpaid. This appeal followed. Discussion            Appellant contends the trial court erred by denying a request for a continuance so that he could retain counsel of his choosing rather than proceed with the attorney who had been appointed to represent him.            Standard of Review            Appellant's request to the trial court for more time to retain different counsel and his appellate complaint involving the denial of that request is a challenge to the denial of a motion for a continuance.[2] See Coleman v. State, 188 S.W.3d 708, 722-24 (Tex.App.--Tyler 2005, pet. ref'd), cert. denied, 549 U.S. 999, 127 S.Ct. 502, 166 L.Ed.2d 376 (2006). The denial of a motion for continuance is within the sound discretion of the trial court, and our review of the denial of such a motion is limited to whether the trial court abused that discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex.Crim.App. 2006); Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997).            To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Janeka, 937 S.W.2d at 468. A bare assertion of prejudice will not suffice. Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007). Rather, "a defendant must demonstrate both that the trial court erred in denying the motion and that the lack of a continuance harmed him." Gonzales v. State, 304 S.W.3d 838, 843 (Tex.Crim.App. 2010). Examples of specific prejudice include unfair surprise, an inability to effectively cross-examine witnesses, and the inability to elicit crucial testimony from potential witnesses. Janecka, 937 S.W.2d at 468.            Motion for Continuance            While the Sixth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution provide an accused in a criminal prosecution with the right to counsel of his or her own choosing, U.S. Const. amend VI; Tex. Const. art. I, § 10,[3] "[t]he choice of counsel of one's choice is not absolute, and may under some circumstances be forced to bow to 'the general interest in the prompt and efficient administration of justice.'" Rosales v. State, 841 S.W.2d 368, 374 (Tex.Crim.App. 1992) (footnote omitted) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978), cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993)).            A defendant's Sixth Amendment rights are protected when he has effective assistance from either retained or appointed counsel; Trammel v. State, 287 S.W.3d 336, 343 (Tex.App.--Fort Worth 2009, no pet.) (collected cases cited therein), and, once the trial court appoints an attorney to represent the defendant, there must be some principled reason to justify the replacement of appointed counsel. Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.Crim.App. 1992) (orig. proceeding). See Thomas, 550 S.W.2d at 68.[4] A defendant does not have the right to the appointed counsel of his choice and the accused's right to select his own counsel cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Ex parte Davis, 818 S.W.2d 64, 66 (Tex.Crim.App. 1991); Webb v. State, 533 S.W.2d 780, 786 (Tex.Crim.App. 1976). Thus, an accused may not wait until the day of trial to demand different counsel or request counsel be dismissed so that he may retain other counsel because such a delay interferes with the timely administration of justice. Robles v. State, 577 S.W.2d 699, 704 (Tex.Crim.App. [Panel Op.] 1979) (collected cases cited therein).                 The State filed its motion to proceed on July 22, 2009. Fifteen days later, Appellant requested that the trial court appoint counsel because he was indigent. The same day, the trial court appointed counsel and scheduled a revocation hearing for August 28, twenty-two days later. During the interim, Appellant did not seek a continuance or new representation. Rather, on the day of the hearing, Appellant requested a continuance to hire a new attorney for no other reason than his mother had agreed to pay the cost.[5] His mother did not attend the hearing to verify that she would be subsidizing new representation, Appellant did not know who his new counsel would be and his request for more time was open-ended, i.e., he could not tell the trial court how long it would take to find a new attorney. Further, prior to making the request, his court-appointed attorney had announced he was ready to proceed and, after the trial court denied Appellant's request, ably represented Appellant throughout the remainder of the hearing. Appellant makes no showing that the lack of a continuance harmed him. Based upon this record, we cannot say the trial court abused its discretion by denying Appellant's motion for a continuance. Accordingly, Appellant's sole issue is overruled. Conclusion            The trial court’s judgment is affirmed.                                                                                                   Patrick A. Pirtle                                                                                                     Justice  Do not publish. [1]Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2010). [2]The Texas Rules of Criminal Procedure provide that "[a] criminal action may be continued on the written motion . . . of the defendant, upon sufficient cause shown." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006).   [3]The Due Process Clause of the Fourteenth Amendment guarantees the same right to the assistance of counsel, including the right to the appointment of counsel in the case of an indigent defendant, in state criminal proceedings. Thomas v. State, 550 S.W.2d 64, 67 (Tex.Crim.App. 1977) (citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)). [4]An accused bears the burden of proving that he is entitled to a change of counsel. King v. State, 511 S.W.2d 32, 34 (Tex.Crim.App. 1974). [5]Appellant did not assert, and the record does not reflect, any bad faith, insincerity, or disloyalty towards Appellant by his attorney.Â