REDDIE HOUSTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 14, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01049-CR
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REDDIE HOUSTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81813-06
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MEMORANDUM OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Wright
        Reddie Houston appeals his convictions for two counts of indecency with a child by contact and a single count of sexual assault of a child. After the jury found appellant guilty, it assessed punishment for each offense, enhanced by a prior felony conviction, at confinement for life. In four points of error, appellant contends: (1) the trial court erred by not requiring the State to elect between the differing counts alleged in the indictment; (2) the trial court abused its discretion by denying his motion to replace appointed counsel; and (3) the evidence is legally and factually insufficient to support enhancement of his punishment. We overrule appellant's points of error and affirm the trial court's judgment.
        In his first point of error, appellant contends the trial court erred by not requiring the State to elect between the differing counts alleged in the indictment. After reviewing the record, we disagree.
        A defendant who commits sexual offenses against the same complainant is liable for separate prosecution and punishment for every instance of such criminal misconduct. See Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992). When the State wishes to charge multiple offenses in a single indictment, it is required by statute to set out each separate offense in a separate “count.” Tex. Code Crim. Proc. Ann. art. 21.24(a) (Vernon 1989). However, if the indictment charges only one offense and the evidence shows two or more acts of sexual conduct, each of which is an offense for which the defendant may be convicted, the State must elect which act it will rely on for conviction, provided the defendant made a motion for election. Stahle v. State, 970 S.W.2d 682, 693 (Tex. App.-Dallas 1998, pet. ref'd) (citing Scoggan v. State, 799 S.W.2d 679, 680, n.3 (Tex. Crim. App. 1990)).
        Here, appellant was charged in a single indictment with (1) indecency with a child by touching J.P.'s sexual organ with appellant's hand on June 28, 2006, (2) sexual assault of a child by causing appellant's sexual organ to contact J.P.'s sexual organ on June 29, 2006, and (3) indecency with a child by touching J.P's sexual organ with appellant's hand on June 29, 2006. J.P. testified that appellant touched J.P.'s penis with his hand once on June 28th and once on June 29th, and that appellant rubbed their penises together on June 29th. Thus, the State charged appellant with three separate offenses, each of which is supported by a separate act of conduct by appellant. Consequently, the State was not required to elect one act over the other for a single conviction. Further, the jury was instructed on the specific facts of each offense, and the charge did not allow the jury to convict based on less than unanimous agreement for each of the three offenses. Thus, we conclude the trial court did not err by denying appellant's motion to force the State to elect. We overrule appellant's first point of error.
        In his second point of error, appellant contends the trial court abused its discretion by denying appellant's motion to replace his appointed counsel. According to appellant, the trial court's failure to do so deprived him of his Sixth Amendment right to counsel. We examine such a ruling for an abuse of discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Childress v. State, 794 S.W.2d 119, 121 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd).
        The United States and Texas Constitutions, as well as Texas statute, guarantee a defendant in a criminal proceeding the right to have assistance of counsel. Gonzalez v. State, 117 S.W.3d 831, 836 (Tex. Crim. App. 2003). The right to assistance of counsel contemplates the right to obtain assistance of the defendant's choosing. Id. However, the defendant's right to counsel of choice is not absolute. Id.; Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (right to counsel of one's own choice is neither absolute nor unqualified). The right must be balanced with the trial court's need for prompt, orderly, effective, and efficient administration of justice. Emerson v. State, 756 S.W.2d 364, 369 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd). Further, 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. Ex parte Davis, 818 S.W.2d 64, 66 (Tex. Crim. App. 1991); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976); Thompson v. State, 447 S.W.2d 920, 921 (Tex. Crim. App. 1969). Thus, an accused may not wait until the day of trial to demand different counsel or to request counsel be dismissed so that he may retain other counsel. Webb, 533 S.W.2d at 784; Brown v. State, 464 S.W.2d 134, 135 (Tex. Crim. App. 1971). Further, an accused carries 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).         The record in this case shows the trial court found appellant indigent and appointed counsel to represent appellant on June 30, 2006. Thereafter, appellant filed several motions complaining of counsel's representation, and requesting he be dismissed and new counsel appointed. Following a hearing, the trial court granted appellant's request and appointed new counsel on April 11, 2007. On June 8 2007, appellant filed a motion seeking to have that counsel dismissed. Three days later, on the morning of trial, the trial court conducted a hearing on appellant's request. At the hearing, appellant told the trial court he wanted to hire counsel to represent him but had not made arrangements to do so. He also told the trial court that he did not want to represent himself. After noting appellant had since January to make arrangements to hire counsel, the trial court asked appellant if he had any specific reasons to dismiss the counsel that had been appointed to represent him. Appellant replied, “The allegation [is] that it appears he does not want to try to hear me or try to let anything pass through, but only what he allows that will pass through.” When asked, appellant told the trial court he did not have any further allegations against counsel. Likewise, on appeal, appellant does not identify any specific reasons why he was entitled to appointment of new counsel.         Personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal. King, 29 S.W.3d at 566. And, a trial court has no duty to search for counsel agreeable to the defendant. Id. Thus, “eleventh-hour” requests for change of counsel by an accused who refused to waive counsel and does not assert his right to self-representation requires the accused to proceed to trial with his existing lawyer. See Burgess v. State, 816 S.W.2d 424, 428-29 (Tex. Crim. App. 1991). Because (1) appellant waited until three days before trial to file his motion and to the day of trial to inform the court he wanted to hire counsel to represent him, (2) appellant did not allege any allegations of poor performance other than an apparent disagreement about trial strategy, and (3) the record does not show any bad faith, insincerity, or disloyalty towards appellant by his trial attorney, we conclude appellant's complaint lacks merit. We overrule appellant's second point of error.
        In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to support punishment enhancement. According to appellant, because the State's witness did not compare fingerprints that he took from appellant to the copies of fingerprints contained in State's exhibits 7, 8, or 9, the State did not show he was the person who committed the offense alleged in the enhancement paragraph. We analyze such complaints by first reviewing all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the enhancement paragraph true beyond a reasonable doubt. See Roy v. State, 813 S.W.2d 532, 543 (Tex. App.-Dallas 1991, pet. ref'd). We then review all of the evidence pertaining to the punishment enhancement and will set aside the enhancement only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Jaynes v. State, 216 S.W.3d 839, 845 (Tex. App.-Corpus Christi 2006, no pet.).
        To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. See Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is required to prove these two elements. Id.
        In its indictment, the State alleged appellant had been previously convicted of aggravated sexual assault of a child. During punishment, the State offered State's Exhibit 10, a jail packet from the Collin County Jail. Keith Henslee, an investigator with the Collin County District Attorney's Office testified he took fingerprints from appellant, compared them with the fingerprints contained in State's Exhibit 10, and determined they were the same. State's Exhibit 10 contains a photograph of appellant, and his name, height, weight, hair and eye color, date of birth, driver's license number, and social security number. State's Exhibit 10 also shows appellant had three prior convictions, aggravated sexual assault of a child, indecency with a child, and failure to register as a sex offender. Each of the convictions is identified by offense name, cause number, date of offense, sentence date, and sentence. The State also introduced a certified copy of the judgment for aggravated sexual assault of a child. The judgment contains a fingerprint and appellant's signature, and the accompanying indictment contains appellant's physical description. Viewing the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to prove appellant had been convicted of the offense of aggravated sexual assault of a child as alleged in the enhancement paragraph. See Flowers, 220 S.W.3d at 921; Littles v. State, 726 S.W.2d 26, 31 (Tex. Cr. App. 1987). We overrule appellant's third and fourth points of error.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071049F.U05