Chevalier Riley Paige v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Memorandum Opinion filed August 28, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00611-CR

____________

CHEVALIER RILEY PAIGE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178thDistrict Court

Harris County, Texas

Trial Court Cause No. 1062901

M E M O R A N D U M O P I N I O N

A jury convicted appellant Chevalier Riley Paige of aggravated robbery and sentenced him to fifteen years= confinement in the Texas Department of Criminal Justice, Institutional Division. In his sole issue on appeal, appellant claims the trial court denied his constitutional right to counsel in violation of the United States and Texas Constitutions. We affirm.

Background

Following his arrest for aggravated robbery, the trial court appointed Mr. Rudy Duarte to represent appellant at trial. In preparation for trial, Mr. Duarte reviewed the State=s file and filed several motions with the court. Mr. Duarte also visited appellant in jail on two separate occasions. Mr. Duarte=s first visit took place three days prior to trial. At that time, Mr. Duarte first learned that appellant=s uncle had supposedly retained another attorney, Mr. Cedrick Muhammad, to replace him as appellant=s trial counsel. Although the record is not clear on this point, it appears Mr. Duarte continued to discuss the upcoming trial even after learning of the possible substitution of counsel. The second visit occurred two days later. At this visit, appellant refused to speak with Mr. Duarte concerning his case.

On the day of trial, appellant informed the bailiff that he would need to be handcuffed and gagged before being brought into the courtroom, apparently to express his dissatisfaction with Mr. Duarte=s representation. At a bench conference prior to the commencement of voir dire, appellant informed the court that he preferred to be represented by Mr. Muhammad. Appellant acknowledged that he had refused to speak to Mr. Duarte and explained that his behavior was due to his perception that Mr. Duarte was not representing him properly. During this discussion, the trial court noted, and appellant acknowledged, that Mr. Muhammad was not present in court to replace Mr. Duarte. The trial court further noted that Mr. Muhammad had not contacted the court or the prosecutor=s office at any point regarding his representation of appellant.

In response to Mr. Muhammad=s absence, appellant suggested the court try and contact him in case there was an emergency preventing his attendance. The trial court declined to do so, stating it was not the court=s duty to contact appellant=s counsel but encouraged appellant=s family to call Mr. Muhammad on appellant=s behalf. The record does not indicate any effort was made to contact Mr. Muhammad, and the trial court decided to go forward with Mr. Duarte representing appellant. After two days of trial, appellant was found guilty of aggravated robbery and sentenced to fifteen years in prison.

Analysis

On appeal, appellant argues that the trial court violated his constitutional right to counsel of his choice by forcing him to proceed to trial with his court-appointed lawyer after he made known his preference to be represented by retained counsel. The United States and Texas Constitutions guarantee a defendant in a criminal proceeding the right to have the assistance of counsel. Gonzalez v. State, 117 S.W.3d 831, 836 (Tex. Crim. App. 2003). The right to assistance of counsel contemplates the defendant=s right to obtain assistance from counsel of defendant=s choosing. Id. Although an accused is entitled to counsel of choice, Athis choice is not without limitations.@ Brink v. State, 78 S.W.3d 478, 485 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). The presumption that a defendant should be allowed his choice of counsel may be overridden by other important considerations regarding the integrity of the judicial process and the fair and orderly administration of justice. Gonzalez, 117 S.W.3d at 837.

When faced with an accused=s eleventh hour request for change in counsel, a trial court essentially has three options. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). First, the court may, at its discretion, appoint or allow new counsel to be retained. Id. Second, if new counsel is denied, an accused may assert his right to self-representation. Id. at 428B29. Third, if the trial court denies new representation and the accused does not waive counsel and invoke his right to self-representation, then the trial court Amust compel an accused . . . to proceed to trial with the lawyer he has, whether he wants to or not.@ Id. at 429. We review a trial court=s refusal to grant a motion to dismiss counsel for an abuse of discretion. Keys v. State, 486 S.W.2d 958, 959 (Tex. Crim. App. 1972).

In the current matter, the trial court was not presented with a request for substitution of counsel or notified of any conflict between appellant and his appointed counsel until the day of trial. Texas courts have consistently held that an accused may not wait until the day of trial to demand different counsel or request that counsel be dismissed so that he may retain other counsel. See Robles v. State, 577 S.W.2d 699 (Tex. Crim. App. 1979); Webb v. State, 533 S.W.2d 780 (Tex. Crim. App. 1976); Keys, 486 S.W.2d at 958; Brown v. State, 464 S.W.2d 134 (Tex. Crim. App. 1971). Further, appellant=s counsel of choice was not present at the proceeding and had made no effort to contact the court regarding his intent to replace appellant=s appointed counsel. While appellant maintains that the trial court should have attempted to locate his missing lawyer, the result would have been an inevitable delay or postponement of trial. An accused=s right to select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Webb, 533 S.W.2d at 784. Moreover, the record demonstrates that appellant=s appointed counsel was prepared and ably represented him at trial. A[W]hile the right to select and be represented by one=s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the 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.@ Wheat v. U.S., 486 U.S. 153, 159 (1988); see Morris v. Slappy, 461 U.S. 1, 13B14 (1983). Accordingly, the trial court did not abuse its discretion in denying appellant=s request for new counsel, and because appellant did not waive counsel or insist on his right of self-representation, the trial court appropriately continued with the proceedings with appellant=s court appointed lawyer. Appellant=s sole issue is overruled.

We affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed August 28, 2007.

Panel consists of Justices Yates, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).