Lena Sherman Garrett v. The State of Texas--Appeal from 12th District Court of Leon County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-01-00296-CR

Case Date: 09/11/2002

Plaintiff: De La Garza, Martin

Defendant: James C. Thomas, Inc., d/b/a James Thomas Exxon--Appeal from County Court at Law No 3 of Nueces Cou

Preview:Lena Sherman Garrett v. The State of Texas--Appeal from 12th District Court of Leon County
Lena Sherman Garrett v. State /**/ IN THE TENTH COURT OF APPEALS

No. 10-01-296-CR

LENA SHERMAN GARRETT, Appellant v.

THE STATE OF TEXAS, Appellee

From the 12th District Court Leon County, Texas Trial Court # CM-00-74 MEMORANDUMOPINION Lena Sherman Garrett appeals from a conviction for the offense of assault on an elderly person. Tex. Pen. Code Ann. 22.04(a) (Vernon Supp. 2002). In a single issue Garrett argues that the trial court abused its discretion by denying her request to change attorneys on the day scheduled for her jury trial. The right of a defendant to choose her own counsel is guaranteed by article I, section 10 of the Texas Constitution and by the Sixth Amendment to the United States Constitution. Tex. Const. art. I, 10; U.S. Const. VI. On the day of trial, Garrett orally requested that the trial judge discharge her court-appointed attorney because, according to Garrett, the attorney had not investigated the case in preparation for trial. The judge asked Garrett if her family had hired an attorney to take the court-appointed attorney s place, and she responded that her family is hiring me an attorney. But when the judge asked her whether the new attorney was present for trial, she did not respond. Then, the court heard from the court-appointed attorney who stated that [Garrett] has not aided me in preparing for trial. The attorney said she had attempted to investigate [Garrett s] case, but I have no cooperation. I can t talk to her witnesses because she won t give me their names. In addition, the attorney stated: I can t prepare for trial. I didn t have . . . and I m just sitting here trying to get ready with no information. Garrett also told the court that she asked her family to find a new attorney three weeks prior to the trial date and finally acknowledged that she still had not retained other counsel. At the end of the hearing, the trial court simply stated that we re going forward now, impliedly denying
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Garrett s oral request to change attorneys. The First Court of Appeals has held that a trial court is not required to hold a hearing sua sponte on a defendant s motion for change of counsel, and its failure to do so does not deny the accused procedural or substantive due process rights. Garner v. State, 864 S.W.2d 92, 100 (Tex. App. Houston [1st Dist.] 1993, pet. ref d) (citing Malcolm v. State, 628 S.W.2d 790, 792 (Tex. Crim. App. [Panel Op.] 1982)). Thus, according to Garner, the court was not required to hold an impromptu hearing, but did so to allow Garrett to explain why she had waited until the day of trial to make her request. Nevertheless, a defendant may not switch counsel at the last minute or do anything to manipulate or delay the trial through her choice of counsel. Brown v. State, 464 S.W.2d 134, 135 (Tex. Crim. App. 1971); Jones v. State, 926 S.W.2d 386, 390 (Tex. App. Fort Worth 1996, pet. ref d); see, e.g., Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976) (an accused may not wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he may retain other counsel); DeGroot v. State, 24 S.W.3d 456, 460 (Tex. App. Corpus Christi 2000, no pet.) (a request for a new attorney on the day of trial is too late); Childress v. State, 794 S.W.2d 119, 122 (Tex. App. Houston [1st Dist.] 1990, pet. ref d) (defendant did not have absolute right to discharge his retained attorney prior to trial, where defense counsel s motion to withdraw was made only five days before trial was scheduled to begin). Accordingly, we overrule Garrett s sole issue and affirm the judgment. BILL VANCE Justice

Before Chief Justice Davis, Justice Vance, and Justice Gray Judgment affirmed Opinion delivered and filed September 11, 2002 Do not publish [CR25]

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