Troy Lee Applin v. The State of Texas--Appeal from 104th District Court of Taylor County

Opinion filed November 3, 2005

In The

Eleventh Court of Appeals

__________

   No. 11-04-00304-CR

__________

   TROY LEE APPLIN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 14,949-B

O P I N I O N

The jury convicted Troy Lee Applin of possession of cocaine. Appellant entered pleas of true to both the enhancement allegations. The trial court assessed his punishment at confinement for 35 years. We affirm.

Appellant=s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Eaden v. State, 161 S.W.3d 173 (Tex.App. - Eastland 2005, no pet=n).

Appellant has filed a response to counsel=s brief. Appellant contends that the trial court erred in overruling his court-appointed trial counsel=s motion to withdraw, that he was denied effective assistance of counsel, that the trial court erred in denying his motion for mistrial, and that the enhancement allegations are void. The record does not support appellant=s contentions.

The record reflects that appellant=s original trial counsel was retained and that retained counsel filed a motion to withdraw based on appellant=s failure to comply with the employment contract and failure to cooperate. After a hearing, the trial court granted the motion. For the next three months, the trial court checked on appellant=s progress in retaining subsequent trial counsel. When appellant failed to retain subsequent counsel, the trial court appointed counsel and set the case for trial two months later. The record reflects that appellant was free on bond during the two months between the appointment of counsel and the date of trial and that he did not retain counsel. On the day of trial, appellant asked the trial court to continue the case to allow him time to retain trial counsel. The trial court denied the motion. Appellant repeated his request for a continuance to hire counsel after the jury had been chosen. The trial court found that appellant was adequately repre-sented and that the case would proceed to trial. The record does not support appellant=s contentions that the trial court erred in proceeding to trial.

During the trial, appellant informed the trial court that he told his court-appointed counsel that he did not want to discuss the case with him, that he had instructed his court-appointed counsel not to cross-examine the State=s witnesses, that he did not want court-appointed counsel calling witnesses, that he had instructed his court-appointed counsel to turn down a plea bargain agreement, and that he would only discuss the case with an attorney once he was allowed to retain the counsel of his choice. The record reflects that appellant had ample opportunity to hire counsel, that appellant failed to hire counsel, and that appellant made a conscious and deliberate decision to not cooperate with the counsel provided to him. The record does not support appellant=s contentions that his trial counsel was ineffective. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).

During Abilene Police Officer Erin Bennett=s testimony, court-appointed counsel interrupted with an objection when Officer Bennett began to testify that her partner had explained to her that she Awould need to be very cautious with [appellant] when [they] arrived due to his prior history.@ The trial court sustained counsel=s objection, instructed the jury to disregard the testimony, and denied the motion for mistrial. The instruction cured the error, and the trial court did not abuse its discretion. Simpson v. State, 119 S.W.3d 262 (Tex.Cr.App.2003), cert. den=d, ___ U.S. ___, 124 S. Ct. 2837, 159 L.E.2d 270 (2004); Wood v. State, 18 S.W.3d 642 (Tex.Cr.App.2000); Ovalle v. State, 13 S.W.3d 774 (Tex.Cr.App.2000).

As alleged in the indictment, the record reflects that appellant was convicted in Cause No. 19181-A by a state district court of possession of cocaine and was convicted in Cause No. 1:92-CR-0013-03-C of distribution of cocaine base within 1,000 feet of an elementary school by a federal district court. The record further reflects that, as alleged in the indictment, the federal conviction had become final before the State conviction and that the State conviction had become final prior to the commission of the present offense. The record does not support appellant=s contentions that the enhancement allegations are void.

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. The record reflects that, at the time of his arrest, appellant was holding two plastic baggies containing rocks of cocaine. The evidence is legally and factually sufficient to support the conviction. See Jackson v. Virginia, 443 U.S. 307 (1979); Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr. App.1996).

The motion to withdraw is granted, and the judgment is affirmed.

PER CURIAM

November 3, 2005

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

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.