Eric Lynn Kitchens v. The State of Texas--Appeal from 8th District Court of Hopkins County

NOS. 12-05-00155-CR

12-05-00156-CR

12-05-00157-CR

12-05-00158-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ERIC LYNN KITCHENS, APPEAL FROM THE 8TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOPKINS COUNTY, TEXAS

MEMORANDUM OPINION

Eric Lynn Kitchens appeals his convictions for two counts of sexual assault of a child and two counts of indecency with a child, for which he was sentenced to imprisonment for twenty years for each conviction. Appellant raises one issue on appeal. We affirm.

Background

Appellant was charged by separate indictments with two counts of sexual assault of a child and two counts of indecency with a child. Following admonishments by the trial court, Appellant pleaded guilty.

Three weeks later, the trial court conducted a bench trial on punishment. During the proceedings, Appellant interrupted on multiple occasions, exclaiming generally that he wished to fire his lawyer. The court summarized Appellant s conduct for the record as follows:

THE COURT: Sir, May the record reflect that Mr. Kitchens is yelling as the Court is talking and the attorneys are talking.

And the Court will instruct you that, if you continue to do that, the Court will have you gagged. So, don t make me have to do that; okay?

(Disturbance in the courtroom)

THE COURT: May the record reflect that Mr. Kitchens tried to -- when approaching the bench, tried to -- appeared to go against one of the deputies who is assisting the Court here as a bailiff, and he is sitting here in the courtroom now, and everything is under control.

Later, as the prosecuting attorney was making his argument to the court, Appellant repeatedly interjected, telling him in several instances to shut up, and twice stating with regard to his victim that she wanted it, too. As the prosecutor concluded his remarks and referred to Appellant s interjections, Appellant again interrupted, responding, No, that s not what I m saying, stupid.

Before sentencing Appellant, the trial court asked him if he knew of any legal reason why the court should not sentence him. Appellant responded as follows: Yes, because I do not want [my attorney] representing me, Your Honor. He s done nothing but, for the past three months, has tried to get me to plead out. And I ve told him time after time after time after time, I want to take this to trial. Thereafter, the trial court sentenced Appellant to imprisonment for twenty years for each conviction and ordered that the sentences run concurrently. This appeal followed.

Substitution of Appointed Counsel

In his sole issue, Appellant argues that the trial court abused its discretion in declining to conduct a separate hearing concerning whether Appellant had good cause to remove his attorney during the sentencing phase of trial. An accused does not have the right to have his choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself, or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court. See Garner v. State, 864 S.W.2d 92, 98 (Tex. App. Houston [1st Dist.] 1993, pet. ref d); see Renfro v. State, 586 S.W.2d 496, 499 500 (Tex. Crim. App. [Panel Op.] 1979). A trial court is under no duty to search until it finds an attorney agreeable to the accused. Garner, 864 S.W.2d at 98. Unless a Sixth Amendment violation is shown, whether to appoint a different lawyer for an indigent criminal defendant who expresses dissatisfaction with his court-appointed counsel is a matter committed to the sound discretion of the trial court. See United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973).

In order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict that leads to an apparently unjust verdict. Id.; see also, e.g., Smith v. Lockhart, 923 F.2d 1314, 1321 (8th Cir. 1991) (conflict of interest arising from defendant s class action suit against class including attorney, coupled with inability to communicate with each other); United States v. Hurt, 543 F.2d 162 (D.C. Cir. 1976) (appellate counsel s conflict of interest arising out of libel suit brought against him by appellant s trial counsel for asserting, on appeal, ineffectiveness of trial counsel). In such an instance, however, the accused must bring the matter to the trial court s attention and must successfully bear the burden of proving that he is entitled to a change of counsel. See Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982).

If a court (1) refuses to inquire into (a) a seemingly substantial complaint about counsel (b) when it has no reason to suspect the bona fides of the defendant, or (2) if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. Young, 482 F.2d at 995. In the absence of a conflict that presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion. Id.

Seemingly Substantial Complaint

In the case at hand, Appellant complained that he wanted his attorney fired because his attorney had tried, over a course of months, to have Appellant plead guilty when Appellant desired to take the case to trial. Such a complaint on Appellant s part does not fall into the aforementioned categories constituting good cause such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict. See Young, 482 F.2d at 995; see also King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) (personality conflicts and disagreements concerning trial strategy, described as trial counsel s disagreement of [the defendant s] innocence, are typically not valid grounds for withdrawal and substitution of appointed trial counsel); Brown v. United States, 264 F.2d 363, 366 (D.C. Cir. 1959) (fact that defendant s counsel did not think he had a chance of beating a charge not adequate reason for substitution of appointed counsel).

As the reason set forth by Appellant does not amount to good cause for his attorney s dismissal, we conclude that Appellant did not set forth a seemingly substantial complaint to the trial court. Therefore, the trial court did not abuse its discretion in declining to conduct an investigatory hearing on the matter. See Young, 482 F.2d at 995. Furthermore, the trial court was entitled to consider Appellant s statement concerning why he wanted his trial counsel s services terminated in the context of his other outbursts during the proceedings in question, i.e., telling the prosecuting attorney in several instances to shut up and twice stating with regard to his victim that she wanted it, too. Moreover, when such other statements are considered in conjunction with the physical disturbance Appellant caused in the courtroom, the trial court could reasonably conclude that Appellant was not acting in good faith1 in requesting that his trial counsel s services be terminated. See Young, 482 F.2d at 995. Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgments.

SAM GRIFFITH

Justice

Opinion delivered September 6, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1See Black s Law Dictionary 177 (6th ed. 1990) ( bona fide means in or with good faith; honestly, openly, and sincerely).