Charles Kelly Adams v. The State of Texas--Appeal from 42nd District Court of Taylor County

Opinion filed March 30, 2006

In The

Eleventh Court of Appeals

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   No. 11-05-00117-CR

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   CHARLES KELLY ADAMS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 21,459-A

O P I N I O N

The jury convicted Charles Kelly Adams of possession of methamphetamine. The trial court found the enhancement paragraphs to be true and assessed punishment at 3 years confinement. We affirm.

There is no challenge to the sufficiency of the evidence. The record shows that Officer Adam Becker and Officer Terrell Lynn Perkins Jr. of the Abilene Police Department responded to a call regarding a possible disturbance. After arriving at the scene, the officers spoke with appellant. Officer Becker testified that appellant Aappeared to be either under the influence of some drug or possibly have mental problems.@ Appellant was placed under arrest upon an outstanding warrant, and Officer Becker conducted a search of appellant. Officer Becker found a glass pipe commonly used to smoke narcotics. Officer Becker stated that appellant began to shake his right leg. Another officer recovered a plastic baggie on the ground by appellant=s right leg. The baggie contained a white substance that was later determined to be .21grams of methamphetamine.

In his first issue on appeal, appellant argues that the trial court erred in denying his motion for continuance. After the jury was sworn, appellant informed the trial court that he was not satisfied with his court-appointed counsel. Appellant stated that his trial counsel had advised appellant not to testify, did not plan to call appellant=s nephews and one other witness requested by appellant to testify, had not conducted proper discovery, and had not kept appellant informed on the progress of the case. The trial court asked appellant what he was requesting of the court. Appellant responded that he wanted his trial counsel removed from the case and that appellant would try to find someone Amore suitable@ to represent him. The trial court took appellant=s statement as a request for a continuance.

The State responded that Athe time for requesting another lawyer to represent himself has passed.@ The State asked the trial court to continue the case as scheduled. Appellant=s trial counsel stated that he had conducted discovery and discussed the case with appellant. Trial counsel discussed a plea offer from the State with appellant, as well as the Aproblems with the case.@ Trial counsel also informed appellant that the witnesses he wished to call would not help his case and that it would not be in appellant=s best interest to testify on his own behalf.

The trial court denied the motion for continuance and informed appellant he could proceed with his appointed counsel or represent himself at trial. The trial continued with appointed counsel representing appellant.

The trial court=s ruling on a motion for continuance is reviewed for abuse of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Janecka, 937 S.W.2d at 468; Heiselbetz, 906 S.W.2d at 511.

Although appellant disagreed with the advice of his trial counsel, appellant is not entitled to appointed counsel of choice. Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991). Appellant did not state that he would be able to retain counsel if granted a continuance. Appellant=s trial counsel stated that he had conducted discovery and that he was ready to proceed with the trial. Appellant has not shown that the trial court abused its discretion in denying his motion for continuance. Appellant=s first issue on appeal is overruled.

In his second issue on appeal, appellant complains that the trial court erred by considering testimony regarding prior convictions alleged for enhancement prior to appellant=s plea to those enhancement allegations. During the punishment phase of the trial, appellant acknowledged his previous convictions alleged in the indictment as enhancement paragraphs. Appellant stated that he did not Ahave a problem@ with his criminal history as reported in the presentence investigation report. At the conclusion of appellant=s testimony, the State inquired whether appellant had entered a formal plea to the enhancement paragraphs. The trial court responded that there was no formal plea. Appellant=s trial counsel stated that appellant had admitted the prior convictions. Appellant waived the reading of the enhancement paragraphs and entered a plea of true to the allegations. The trial court stated that it was not necessary to offer the punishment evidence again, and the attorneys proceeded with their closing arguments.

There is no requirement that the enhancement paragraphs be orally read to the defendant when punishment is assessed by the trial court alone. Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973); Garner v. State, 858 S.W.2d 656, 659 (Tex. App.CFort Worth 1993, pet. ref=d). Moreover, appellant offered no objection when the enhancement paragraphs were not read prior to appellant=s testimony at the punishment phase of the trial and, therefore, has not preserved his complaint for review. Jones, 111 S.W.3d 600 (Tex. App.CDallas 2003 pet. ref=d); Garner, 858 S.W.2d at 659. Additionally, appellant has not shown any harm in the failure to read the enhancement paragraphs before appellant=s testimony admitting the allegations. Tex. R. App. P. 44.2(b); see Jackson v. State, 105 S.W.3d 321 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Appellant=s second issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 30, 2006

Do not publish. See Tex. R. App. P. 47.2(b).

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

McCall, J., and Strange, J.