ERNEST EDWARD GAINES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 27, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00599-CR
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ERNEST EDWARD GAINES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-56570-LS
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MEMORANDUM OPINION
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice FitzGerald
        Ernest Edward Gaines pleaded guilty to the jury and was found guilty of aggravated robbery. The trial court assessed his punishment at life in prison plus a $10,000 fine. In two points of error, Gaines argues the trial court erroneously (1) refused to appoint him a different attorney and (2) refused to consider the full range of punishment before sentencing him. The facts are known to the parties and we do not recite them in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
        In his first point of error, Gaines argues the trial court abused its discretion by failing to appoint a different attorney for him when he had demonstrated adequate cause to do so. At a hearing two weeks before his trial date, Gaines informed the trial court he was dissatisfied with the representation of his court-appointed attorney, Anthony Lyons.   See Footnote 1  Gaines asked the trial court to replace Lyons; the trial court refused unless Gaines was able to procure hired counsel by the time of trial. Lyons continued to represent Gaines in the trial court.
        Texas law on this issue is settled. A defendant has no right to appointed counsel of his choice. Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977). The defendant must accept counsel assigned by the court unless he effectively waives his right to counsel or shows adequate cause for appointment of a different attorney. Id. The trial court is under no duty to search for counsel until it finds one agreeable to the defendant. Rogers v. State, 488 S.W.2d 833, 834 (Tex. Crim. App. 1973). Instead, the defendant carries the burden of proving that he is entitled to a change of counsel. Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985). The defendant may not request a change in counsel to obstruct the orderly procedure of the court or to interfere with the fair administration of justice. Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991). And finally, “personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal.” King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000).
        Appellant Gaines argues he proved his right to new counsel by establishing that he had both a conflict of interest and an inability to communicate with his counsel. See Garner v. State, 864 S.W.2d 92, 99 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). We disagree. A conflict of interest between an attorney and his client exists “if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests (perhaps counsel's own) to the detriment of his client's interest.” Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997) (citing James v. State, 763 S.W.2d 776, 779 (Tex. Crim. App.1989)). The record includes no indication Lyons was faced with a choice between advancing Gaines's interests and someone else's interests. On the contrary, the colloquies between Lyons and Gaines in the trial court establish nothing more than disagreements concerning trial strategies, which will not support removing appointed counsel. See King, 29 S.W.3d at 566. And as to an inability to communicate, the record establishes only that Gaines resisted communicating with his attorney, not that either party to the relationship was unable to communicate with the other. The problem, thus, was more of a personality conflict, which is also an insufficient reason to remove appointed counsel. See id. We conclude Gaines did not carry his burden to show adequate grounds for removal of his court- appointed attorney. We overrule his first point of error.
        In his second point of error, Gaines argues his constitutional right to due process was violated when the trial court refused to consider the entire range of punishment for his offense and instead imposed a predetermined punishment. Our review of the record does not support Gaines's speculation concerning the trial court's reasoning in imposing the maximum sentence in this case. However, we need not address that record in any detail because Gaines failed to preserve this issue for our review. Gaines did not object on due process grounds - or any other grounds - when the trial court sentenced him. The record contains no motion for new trial. Even constitutional objections may be waived by failure to object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). We overrule Gaines's second point of error as well.
        We affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060599F.U05
 
 
Footnote 1 Lyons was actually Gaines's second court-appointed attorney. Gaines's first attorney was permitted to withdraw with Gaines's consent.