Pierce v. State

• Decision Date: 08 February 2017
• Docket Number: No. 06-16-00118-CR,06-16-00118-CR
• Parties: GREGORY CHARLES PIERCE, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

GREGORY CHARLES PIERCE, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-16-00118-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: December 27, 2016

February 8, 2017

On Appeal from the 6th District Court Lamar County, Texas

Trial Court No. 26003

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

Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Following his plea of guilty to family violence assault by occlusion,¹ the trial court assessed Gregory Charles Pierce's punishment at ten years' imprisonment, but suspended his sentence and placed him on community supervision for a period of ten years. In addition to the standard community supervision conditions, the trial court also ordered Pierce to pay a fine of $500.00, restitution of $300.00, court costs of $283.00, and attorney fees of $250.00. Only slightly more than a year later, the State filed a motion to revoke Pierce's community supervision. Following a hearing, the trial court granted the State's motion to revoke Pierce's community supervision and sentenced Pierce to six years in prison, allowing him credit for the time already served while awaiting trial. In the judgment revoking the community supervision, the trial court reiterated Pierce's obligation to pay the fine, the restitution, court costs, and attorney fees.²

Pierce appeals the trial court's subsequent revocation of his community supervision, maintaining that the trial court erred (1) when it denied his trial counsel's motion to withdraw, and (2) when it assessed attorney fees against him. For the reasons below, we affirm the trial court's judgment.

I. Background

Pursuant to a plea agreement, Pierce entered a guilty plea December 17, 2014, for the offense of assault family violence by occlusion.³ Under that agreement, Pierce was assessed a sentence of ten years in prison, but that sentence was suspended and he was placed on community supervision for a period of ten years.⁴ On January 14, 2016, the State filed its motion to revoke Pierce's community supervision, arguing that Pierce had, among other things, failed to perform 600 hours of community service requirements and failed to complete a BIPP, both of which were conditions set out in the judgment placing him on community supervision. Pursuant to Pierce's request, the trial court once again determined that Pierce was indigent and appointed Pierce an attorney to represent him.

Pierce's appointed attorney filed a motion April 15, 2016 for leave to withdraw. Counsel explained the reason for the filing of the motion, stating,

As grounds, Movant would show the Court that Movant previously filed a Motion for Determination of the Defendant's Competency to Stand Trial.⁵ The courtgranted the Motion, and subsequently the defendant was evaluated by Dr. David Bell and found to be both competent to stand trial and sane. Movant received Dr. Bell's report on April 29, 2016 and met with the defendant the same day in the Lamar County Jail. The defendant was extremely belligerent and refused to discuss the report, Dr. Bell's findings, or Movant's recommendations regarding the State's Motion to Revoke Probation. The defendant requested Movant to withdraw from representing the defendant in this cause. According [sic], Movant believes that the attorney-client relationship between Movant and the defendant has broken down such that Movant cannot provide effective representation to the defendant Gregory Charles Pierce in the instant cause.

The trial court held a hearing May 17, 2016 on the above motion for leave to withdraw; during that hearing, the attorney once again relayed his concerns⁶ to the trial court. Pierce agreed with the contents of defense counsel's motion and stated, "Yeah, I want to get a new attorney." The State announced that it had no position on the issue. The trial court explained to Pierce that he had a right to have a timely hearing on the State's motion to revoke his community supervision, but that "[b]y making [his] request it [was] going to delay the proceedings even further." Pierce initially indicated that he had no objection to the delay and that he desired a new attorney to represent him. The court then stated,

You understand the Court looks with great disfavor upon motions like this because we need to have these hearings and we need to have them, we need to get on with it. Sometimes a new attorney is going to be telling you the same thing Mr. Coyle[—Pierce's appointed trial counsel—]is telling you.

Pierce responded, "If I may ask if I can get a speedy trial also."⁷ The trial court informed Pierce that if it granted the motion for leave to withdraw and appointed new counsel, the hearing on the State's motion would be delayed at least thirty days. Pierce asked what he was required to do in order to get a speedy trial and the trial court explained that he would need to allow his then-current counsel to represent him at the hearing. Pierce responded, "So, speedy trial it is." The trial court admonished Pierce that it would be necessary for him to work with his counsel and to let him assist with his case. Pierce agreed.

A hearing on the State's motion to revoke community supervision was conducted May 31, 2016. Before the hearing on the State's motion began, defense counsel orally renewed his motion for leave to withdraw. After speaking to Pierce, the trial court addressed defense counsel:

Furthermore, in regards to the motion to withdraw, respectfully, I am very, very much aware that the relationship issues can occur between their attorney [sic] but this matter has been heard once. Mr. Pierce was questioned about whether or not he wanted to proceed with you in regards to the speedy trial issues as well. With that understanding the Court set this matter for today and we are going to hear it. That motion will be denied as well.

The court then proceeded with the hearing on the State's motion to revoke community supervision.

After hearing testimony, the trial court found there was sufficient evidence to find that Pierce had committed all but one of the State's allegations and it revoked Pierce's community supervision as stated previously.

In his appeal, Pierce does not contest the trial court's finding of sufficient evidence to revoke his community supervision. Instead, Pierce contends that the trial court erred (1) in denying his trial counsel's motion for leave to withdraw and (2) when it assessed attorney fees against him.

II. Discussion

A. Failure to Grant Motion for Leave to Withdraw

Pierce contends that "[t]he Sixth Amendment right to the assistance of counsel includes a right to obtain that assistance from retained counsel of a defendant's own choosing." However, the record in this case shows no indication that Pierce wanted to hire counsel; instead, he seemed to be asking the trial court to appoint a new and different attorney to assist him in lieu of the attorney previously appointed. The Sixth Amendment's guarantee of a person's right to counsel does not include the right to appointed counsel of defendant's choice. Roberson v. State, 741 S.W.2d 563, 564 (Tex. App.—Texarkana 1987, no pet.) (citing United States v. Norris, 780 F.2d 1207 (5th Cir. 1986)). There are certain circumstances when an accused may, upon adequate showing, be entitled to a change of counsel. Garner v. State, 864 S.W.2d 92, 98 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd). The accused, however, must bring the issue to the trial court's attention and must successfully bear the burden of proving that he is entitled to a substitution of counsel. Id.

Reversible error relating to the denial of withdrawal exists only where an abuse of discretion is shown. Tuffiash v. State, 948 S.W.2d 873, 878 (Tex. App.—San Antonio 1997, pet. ref'd). The test for abuse of discretion is not whether the facts presented an appropriate case for the trial court's actions; instead, it is a question of whether the trial court acted without referenceto guiding rules and principles or acted arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). If the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion and the trial court's ruling will be upheld. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

Initially, we observe that Pierce submitted an affidavit of indigence and requested appointment of counsel, a request that was granted. After a period of time, Pierce informed the trial court that he desired different counsel, but he did not proffer any reason for his dissatisfaction with his then current counsel. However, when the trial court informed Pierce that the appointment of different counsel would result in the delay of a final hearing by at least thirty days, Pierce indicated that he would rather proceed with his current counsel than have new counsel appointed. It appears that Pierce and his appointed counsel were experiencing a great deal of difficulty in working together for Pierce's benefit. However, the trial court is under no duty to search for counsel until it finds an attorney amenable to the accused. Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982). Moreover, a review of the record does not indicate that Pierce received inadequate representation during the revocation hearing and Pierce does not complain on appeal about the quality of his legal representation.⁸

Considering this set of facts and in the absence of any additional evidence demonstrating that the trial court acted arbitrarily or unreasonably, we overrule Pierce's first point of error.

B. The Assessment of Attorney Fees

In this case, the trial court ordered the payment of attorney fees in the order placing Pierce on community supervision and repeated that same order in the judgment revoking his community supervision.⁹ Pierce contends that the trial court made a finding of indigency in an earlier proceeding and that there exists nothing in the record showing that the trial...