Randolf Samuel Franklin, II v. The State of Texas--Appeal from 264th District Court of Bell County (majority)

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00141-CR

                                                ______________________________

                         RANDOLF SAMUEL FRANKLIN, II, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 264th Judicial District Court

                                                               Bell County, Texas

                                                            Trial Court No. 65121

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Randolf Samuel Franklin, II,[1] pled guilty to committing theft from a person, resulting in an order of deferred adjudication community supervision for a period of five years.  The State moved to adjudicate guilt in this matter after Franklin allegedly committed burglary of a habitation in violation of the terms and conditions of his community supervision.  After Franklin pled true to the violation, the trial court adjudicated him guilty and sentenced Franklin to two years' imprisonment.   

            Franklin argues that the trial court erred in refusing to allow his court-appointed attorney to withdraw on the day of the contested hearing, rendering his plea involuntary.[2]  Because we decide that Franklin failed to preserve any complaint that his plea was involuntary, and this issue is dispositive of Franklin's appeal, we affirm the trial court's judgment. 

            At the hearing on the motion to withdraw, Franklin asked the trial court to appoint another attorney.  He stated, "My family is in the process of seeing if we can hire a lawyer."  When asked why he wished counsel to withdraw, Franklin answered,

I've spoken and seen him, I want to say about four times since December.  All my questions have not been answered fully.  Very aggressive in the last two visits.  If I'm not mistaken, the last statement made by Mr. Rodriguez, his assistant was good luck in the penitentiary, did not sit right with me at all.  So I mean as the list goes on and on.  I have everything written down if you need me to read the whole list, but like I said, I do not feel comfortable going to trial with Mr. Barina or any of his assistants at this time. 

In response, counsel assured that he was prepared for trial. 

            On appeal, Franklin does not allege that his counsel was ineffective.  He simply contends that the trial court's failure in allowing the withdrawal forced him to "go to trial with an attorney in whom he had no confidence and who had failed to sufficiently inform Appellant, and risk a life sentence on the [burglary] case or plead to the lesser-included offense and face twenty years."  

            "As a prerequisite to presenting a complaint for appellate review, the record must show that:  (1) the complaint was made to the trial court by a timely request, objection, or motion . . . ." Tex. R. App. P. 33.1(a)(1).  We have previously held that challenges to the voluntariness of a plea of guilty must be raised at the trial court level to preserve the complaint for review on appeal.  Sims v. State, 326 S.W.3d 707, 713 (Tex. App.Texarkana 2010, pet. dism'd) (citing Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004)); Starks v. State, 266 S.W.3d 605, 613 (Tex. App.El Paso 2008, no pet.).  The issue could be raised by a motion for new trial during the plenary jurisdictional authority of the trial court.  The trial court advised Franklin in open court of his right to file a motion for new trial, a motion in arrest of judgment, or to accept the court's sentence.  The record demonstrates that Franklin did not raise this issue below.  Without presenting this issue to the trial court in any manner, it had no opportunity to address the merits.  Without a timely objection, motion, or request that the trial court inquire into the voluntariness of his plea, Franklin has forfeited his right to complain about the voluntariness of his guilty plea.   Franklin's point of error is overruled.

            We affirm the judgment of the trial court.

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          November 1, 2011     

Date Decided:             November 15, 2011

Do Not Publish          

[1]Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov't Code Ann. § 73.001 (West 2005).  We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

[2]Franklin also appeals his conviction of burglary of a habitation addressed in our cause number 06-11-00142-CR on the same grounds.