Rosales v. State

• Decision Date: 15 April 1992
• Docket Number: No. 69576,69576
• Parties: Mariano Juarez ROSALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 368

841 S.W.2d 368

Mariano Juarez ROSALES, Appellant, v. The STATE of Texas, Appellee.

No. 69576.

Court of Criminal Appeals of Texas En Banc.

April 15, 1992.

Rehearing Denied June 24, 1992.

Michael B. Charlton (on appeal only), Houston, M. Benton Eskew, Austin, David Cunningham, John J. Herrera, Houston,

(Jose H. Rojo, Walter Boyd, Houston, of counsel), for appellant

John B. Holmes, Jr., Dist. Atty., Kathlyn Giannaula, Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant was convicted of murder in the course of burglary, a capital offense under V.T.C.A. Penal Code, § 19.03(a)(2). In response to affirmative answers to special issues, the trial court assessed appellant's punishment at death. Article 37.071, §§ (b) and (e), V.A.C.C.P. Review of appellant's conviction by this Court is automatic. Id., § (h).

This cause has been before us once before on direct appeal. See Rosales v. State, 748 S.W.2d 451 (Tex.Cr.App.1987). There we held, inter alia, that the trial court did not abuse its discretion in failing to find appellant to be an indigent for purposes of preparing a transcript for appeal. Subsequently appellant filed a post-conviction application for writ of habeas corpus under Article 11.07, V.A.C.C.P., in which he alleged his appellate counsel was ineffective in failing to obtain a transcript for appeal following the trial court's adverse ruling on his indigent status. In an unpublished opinion 769 S.W.2d 248 (Tex.Cr.App.1989), this Court granted appellant a new appeal. The cause is now before us again, with transcript.

Counsel in the present appeal raises seven points of error. The first three pertain to the effectiveness of appellant's trial counsel and to his right to representation by counsel of his own choosing. In essence, appellant argues that the trial court erred in forcing him to trial with an attorney who had been hired by lead counsel to sit second chair, and who, appellant contends, was insufficiently familiar with the case to represent him effectively. Appellant contends the trial court should have granted his request for a continuance so that the attorney he retained to represent him could recover from a bout of manic-depressiveness. In our view appellant was not deprived of his Sixth Amendment right to the effective assistance of counsel. Nor do we believe the trial court abused its discretion in failing to grant appellant's requested continuance.

The offense was committed on March 30, 1985. On April 1, 1985, the trial court appointed two attorneys, Candelario Elizondo and Michael Stone, to represent appellant. An indictment was filed on July 26, 1985, charging appellant with the offense. A month later, on August 29, 1985, appellant filed a motion requesting substitution of counsel. In the motion, pursuant to his "right to be represented ... by retained counsel of his choice," he requested "to be represented ... by Gerald B. Scheve and Walter Boyd," and asserted that he had retained both Scheve and Boyd to this end. The trial court granted his motion.

Jury selection began on Monday, October 14, 1985. Although Scheve was present on that day, voir dire was conducted exclusively by Boyd on appellant's behalf. On the following morning Scheve did not appear. Boyd related to the trial court that Scheve had complained of illness the day before, and Scheve's law clerk reported that Scheve was suffering an inner ear problem. With appellant's approval, Boyd again conducted the voir dire alone. Later in the afternoon a physician telephoned the trial court to corroborate the report that Scheve had an inner ear infection. At the end of the day the trial court adjourned the proceedings until the following Monday, October 21, 1985, to allow Scheve time to recuperate.

On Friday, October 18, 1985, however, a psychiatrist, Dr. Ronald Rogers, telephoned the trial court to report that Scheve was suffering from "a major depression," and would be indisposed for further proceedings for several weeks at least. Accordingly, on Monday, October 21, appellant filed a motion for continuance. In his sworn motion appellant attests:

"Gerald Scheve is my main attorney and the one I employed to represent me.

Walter Boyd, attorney, was employed by Mr. Scheve to assist Mr. Scheve. I did not know Mr. Boyd until after I had employed Mr. Scheve. I need Mr. Scheve to be with me in the selection of the jury as well as in the trial itself. My family paid Mr. Scheve to be my attorney and I personally employed him. Mr. Scheve is expected to recover in three or four weeks and be ready to resume as my attorney in the trial proceedings."

At a hearing pursuant to this motion, appellant testified that while he was "not dissatisfied" with Boyd's handling of the case up to that point, it was Scheve who "knows the facts" and whom appellant had expected "was going to present the trial[.]" Boyd conceded that "[t]he cases seem to relate that the Court can force the defendant to go to trial with one of his attorneys if the other is incapacitated." ¹ But, Boyd maintained:

"This is an unusual situation. This is, first, a capital murder case, and Mr. Scheve was the primary attorney and, as [appellant] has testified to, he was the one that was responsible for it. I am really employed, I think the record reflects, and as [appellant's] testimony reflects, that I was employed to assist and to be an assistant only, but Mr. Scheve was the primary attorney as the attorney [appellant] had confidence in and there is nothing like a confidential attorney."

On the basis of appellant's right to "effective assistance of attorney of his choice," Boyd requested that appellant's motion for continuance be granted. It was denied, and voir dire continued.

Later in the afternoon of the same day, Dr. Rogers testified as to Scheve's condition. Scheve, he said, was showing signs "of what is formally considered a major depressive disorder." In 1982 Scheve had experienced a similar episode, and another, earlier one in 1964. Rogers testified it would probably take about three weeks for Scheve to begin to respond to anti-depressant medication, and "a few more weeks" after that to return to normal. Rogers agreed with the trial court that the ability to function adequately in a courtroom would probably fall somewhere between those two points.

After Dr. Rogers testified, Boyd briefly took the stand. He testified that the afternoon of October 14, after the first full day of voir dire, was the first intimation he had had that Scheve "was sick, ill, mentally or whatever ... [A]s far as my having any notice whatsoever that Mr. Scheve would be ill and unable to attend this entire case, I just wasn't aware of it and hadn't even thought of it." On cross-examination Boyd admitted he had read the State's file. He testified:

"Q. You are familiar with the defendant's status and what he wants to do with this case?

A. Well, not as familiar as Mr. Scheve. He was the primary attorney and was supposed to develop all that for us. I am pretty familiar. I am well experienced in the trial of criminal cases but I don't know it like he does."

At this point Boyd renewed his motion for continuance, which the trial court again denied. The motion was denied a third time when, without further testimony, Boyd renewed it once again on the morning testimony commenced before the jury.

The granting of a postponement or continuance on account of the sickness of counsel has always been deemed a matter within the discretion of the trial court. Alexander v. The State, 4 Tex.App. 261, at 262 (1878). Where denial of a continuance has resulted in representation by counsel who was not prepared, or denial of representation by counsel altogether, through no fault of the accused, this Court has not hesitated to declare an abuse of discretion. Daughtery v. State, 33 Tex.Cr.R. 173, 26 S.W. 60 (1894); Kuehn v. State, 47 Tex.Cr.R. 636, 85 S.W. 793 (1905); Stevens v. State, 128 Tex.Cr.R. 531, 82 S.W.2d 148 (1935). Cf. Scott v. State, 43 Tex.Cr.R. 610, 68 S.W. 171 (1902) (error not to continue or postpone trial where defendant's only counsel wrongfully arrested after jury impaneled, and defendant forced to trial with unprepared attorney); Giles v. State, 109 Tex.Cr.R. 234, 4 S.W.2d 66 (1928) (error to force defendant to trial without counsel rather than grant brief postponement when retained counsel was detained in another court); Richardson v. State, 162 Tex.Cr.R. 607, 288 S.W.2d 500 (1956) (error to force defendant to trial with unprepared attorney rather than grant a brief postponement, his counsel of choice having been detained in another court). But where other counsel is available or supplied who appears to be "as conversant with the case as ... original counsel" and "in every respect as capable to manage the defense" of the accused, the Court has been loath to reverse a conviction on the basis of failure to grant a continuance in the absence of original or lead counsel because of illness. Ryan v. State, 35 S.W. 288, at 289 (Tex.Cr.App.1896). See also Roberts v. State, 51 S.W. 383 (Tex.Cr.App.1899); Johnson v. State, 41 Tex.Cr.R. 9, 51 S.W. 911 (1899); Coleman v. State, 43 Tex.Cr.R. 15, 63 S.W. 322 (1901); Mason v. State, 81 S.W. 718 (Tex.Cr.App.1904); Monroe v. State, 56 Tex.Cr.R. 244, 119 S.W. 1146 (1909); Heidingsfelder v. State, 128 Tex.Cr.R. 351, 81 S.W.2d 510 (1935); Kerr v. State, 134 Tex.Cr.R. 368, 115 S.W.2d 672 (1938); Lane v. State, 162 Tex.Cr.R. 305, 284 S.W.2d 723 (1955); McKnight v. State, 432 S.W.2d 69 (Tex.Cr.App.1968); Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976). Failure to grant a motion for continuance where lead counsel has been debilitated does not amount to an abuse of discretion, even if associate counsel "was not as familiar with the case as his leading counsel[,]" at least where the "record shows nothing that could have been done for appellant that was...