Eugene Salazar v. The State of Texas--Appeal from 22nd District Court of Caldwell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-070-CR
EUGENE SALAZAR,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 93-141, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated kidnapping (count one) and burglary of a habitation (count two). Penal Code, 63d Leg., R.S., ch. 399, sec. 1, 20.04 & 30.02, 1973 Tex. Gen. Laws 883, 915 & 926 (Tex. Penal Code Ann. 20.04 & 30.02, since amended). The jury assessed punishment for count one at imprisonment for ninety-nine years and a $5000 fine. The punishment for count two is imprisonment for twenty-five years and a $5000 fine.

Appellant's only point of error is that the district court erred by overruling trial counsel's motion to withdraw as counsel. Trial counsel, who was appointed, filed her motion to withdraw on December 27, 1993. The only ground stated for withdrawing was that "counsel has been asked by the Defendant to withdraw as attorney of record in this cause."

A visiting judge heard the motion on January 6, 1994. At the hearing, counsel stated that appellant was unable or unwilling to communicate with her, was unable or unwilling to assist in the preparation of his defense, refused to follow counsel's advice, insisted that counsel subpoena and call witnesses counsel believed would be detrimental to his case, and refused to accept counsel's explanation of the applicable law. Appellant also addressed the court. He complained that counsel wanted him to accept a plea bargain, would not cooperate with him, and visited him only when it was time to go to court. Appellant also stated that he was depressed, could not eat or sleep, and could not communicate with anybody. Asked by the court if he wished to represent himself, appellant said he did not. Noting that the case was set for trial the following week, the court refused to appoint substitute counsel.

On January 10, the day trial began, counsel reurged her motion to withdraw before the presiding district judge. The motion was again overruled.

The appointment of an attorney to represent an indigent defendant satisfies the constitutional and statutory requirements with regard to the right to counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. 1982). A trial court is under no duty to search until it finds an attorney agreeable to the defendant. Id. Conflicts of personality and disagreements between counsel and client are not automatic grounds for withdrawal. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990). When confronted by an eleventh-hour request for change of counsel, a trial court may, at its discretion, appoint new counsel or allow the accused to retain new counsel. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). But if the court declines to allow new counsel, and if the defendant does not assert his right to self-representation, the court may compel the defendant to proceed to trial with the lawyer he has. Id. at 429.

Appellant argues that a serious question of effectiveness arises when attorney and client are at odds. Appellant does not, however, contend that trial counsel rendered ineffective assistance in this cause. We find no basis in the record for concluding that the district court abused its discretion by refusing to allow counsel to withdraw just as trial was to begin. The point of error is overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: January 25, 1995

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