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 2002-08

Rodriguez, Jose Antonio v. State ( 2002 )


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  • Opinion issued August 22, 2002



























    In The

    Court of Appeals

    For The

    First District of Texas



    NO. 01-00-00760-CR



    JOSE ANTONIO RODRIGUEZ, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 338th District Court

    Harris County, Texas

    Trial Court Cause No. 804288



    O P I N I O N



    Appellant, Jose Antonio Rodriguez, appeals the revocation of his community supervision. Appellant was charged with the felony offense of driving while intoxicated ("DWI"), pleaded guilty, and was sentenced to 10 years community supervision. The State later filed a motion to revoke community supervision. Appellant pleaded true to several community supervision violations. The trial court revoked community supervision and sentenced appellant to seven years in prison. In two points of error, appellant contends (1) his counsel was ineffective at the revocation hearing, and (2) the original judgment was void because his thumbprint is not present. We also construe appellant's brief to assert error in the denial of his motion to dismiss counsel. We affirm.

    Background

    Appellant pleaded guilty to felony DWI and was convicted. No thumbprint appears on the June 7, 1999 judgment. However, a thumbprint and appellant's signature does appear on the "Conditions of Community Supervision" form also dated June 7, 1999.

    After the State moved in October of 1999 to revoke community supervision, the trial court appointed Cynthia Cline to represent appellant at his community supervision revocation hearing. Cline had not represented appellant previously at trial. Appellant filed a motion to dismiss Cline, and the court considered the motion before proceeding with the community supervision revocation hearing. In response to questions from the bench, Cline stated that she had read the State's file, read the court's community supervision file, discussed the case with the court liason officer for the case, and was ready to proceed with the hearing. The court denied the motion to dismiss Cline. Appellant pleaded true to violating numerous conditions of community supervision, and appellant's counsel argued that drug treatment rather than prison was appropriate. The State requested at least an eight year prison sentence. The court revoked appellant's community supervision and sentenced him to seven years in prison.

    Appellant timely filed a pro se notice of appeal from the community supervision revocation order. The trial court appointed new appellate counsel, and this counsel later filed a brief stating her opinion that the appeal was frivolous. Her brief meets the minimum requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and assigning grounds of error that might arguably support an appeal. Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel sent a copy of the Anders brief to appellant, and he responded by filing a pro se brief. The State did not file a brief.

    Lack of Thumbprint on Judgment

    In his second point of error, appellant contends the judgment is void because it did not include his thumbprint. The Code of Criminal Procedure details at length the components that should be included in a court's written judgment. Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (Vernon Supp. 2002). One of the items to be reflected in the judgment is "[t]he defendant's thumbprint taken in accordance with Article 38.33." Tex. Code Crim. Proc. Ann. art. 42.01, § 1(23) (Vernon Supp. 2002). Article 38.33 states, "The court shall order that a defendant who is convicted of a felony . . . have a thumbprint of the defendant's right thumb rolled legibly on the judgment or the docket sheet in the case." Tex. Code Crim. Proc. Ann. art. 38.33, § 1 (Vernon Supp. 2002).

    However, a failure to adhere to the thumbprint instructions of articles 42.01 and 38.33 does not render a conviction void. Sparkman v. State, 55 S.W.3d 625, 629 (Tex. App.--Tyler 2000, no pet.); see Porter v. State, 757 S.W.2d 889, 891 (Tex. App.--Beaumont 1988, no pet.); Aguilar v. State, 658 S.W.2d 802, 806 (Tex. App.--Dallas 1983), rev'd on other grounds, 715 S.W.2d 645 (Tex. Crim. App. 1986). Such errors in the form of the judgment are subject to reformation on direct appeal, but are not subject to collateral attacks. Porter, 757 S.W.2d at 891; Love v. State, 730 S.W.2d 385, 397 (Tex. App.--Fort Worth 1987, no pet.); see Gates v. State, 471 S.W.2d 857, 858 (Tex. Crim. App. 1971); Smothermon v. State, 383 S.W.2d 929, 930-31 (Tex. Crim. App. 1964). Thus, this collateral attack on the DWI conviction is without merit.

    We overrule appellant's second point of error.

    Ineffective Assistance of Counsel

    In his first point of error, appellant asserts his counsel was ineffective because she did not raise the thumbprint issue at the revocation hearing, did not request an interpreter for appellant, and did not voluntarily withdraw when appellant expressed his desire for new counsel. A probationer has the right to be assisted by effective counsel at a revocation hearing. Chetwood v. State, 31 S.W.3d 368, 370 (Tex. App.--San Antonio 2000, pet. ref'd); see Hill v. State, 480 S.W.2d 200, 203 (Tex. Crim. App. 1971). We apply the usual Strickland standard of review, requiring that appellant show both deficient performance by counsel and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999); Chetwood, 31 S.W.3d at 370. There is a strong presumption that the counsel's conduct was reasonable. Strickland, 466 U.S. at 689, 104 S.Ct. at 2064. A claim of ineffective assistance of counsel must be firmly founded in the record. Thompson, 9 S.W.3d at 813.  

    Appellant's arguments are without merit. First, because the lack of a thumbprint on the DWI judgment was not a valid ground for a collateral attack, counsel was not ineffective for failing to raise it at the revocation hearing. Second, although appellant now argues in his brief that he cannot understand the English language and counsel was ineffective for not seeking translation assistance, there is nothing in the record to support his claim. To the contrary, the record indicates that appellant answered questions in English throughout the revocation hearing, (1) and it does not reflect that appellant ever asked counsel to request a translator for the proceedings. Finally, we note conflicts of personality and disagreements between client and counsel are not automatic grounds for withdrawal. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990). Nothing in the record supports appellant's assertion that counsel was ineffective for failing to withdraw.

    We overrule appellant's first point of error.

    Denial of Motion to Dismiss Counsel

    Although not properly designated as a separate point of error, appellant argues on appeal that the trial court erred when it denied his motion to dismiss counsel, and we consider the issue. Appellant filed a motion to dismiss counsel that referenced both the motion to revoke community supervision and a separate case before the same court. Appellant alleged that just cause existed to dismiss counsel due to a failure to adequately communicate with appellant, file motions to suppress evidence, seek discovery of evidence, and speak to witnesses.

    At the hearing on the motion to dismiss, held just prior to the community supervision revocation hearing, appellant only expressed concern over his inability to "get along" with counsel. The trial court questioned counsel about her preparation for the hearing before denying the motion. The trial court does not have a duty to search for an appointed counsel who is agreeable to the accused. Solis, 792 S.W.2d at 100; Cain v. State, 976 S.W.2d 228, 235 (Tex. App.--San Antonio 1998, no pet.). Rather, the accused has the burden of showing just cause for a change of counsel. Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985); Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Cain, 976 S.W.2d at 235. Appellant did not meet his burden, and the trial court did not abuse its discretion in denying the motion to dismiss counsel.Conclusion

    We have made an independent review of the record and find no arguable ground for reversal. We overrule appellant's points of error and affirm the revocation of community supervision. We grant appellant counsel's motion to withdraw from the case. However, counsel still has a duty to inform appellant of this result and that appellant may, on his own, pursue discretionary review in the Court of Criminal Appeals. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).  







       Michael H. Schneider

    Chief Justice



    Panel consists of Chief Justice Schneider, and Justices Jennings and Wilson. (2)

    Do not publish. Tex. R. App. P. 47.4.

    1.

    For example, after the court denied his motion to dismiss counsel, the court asked if appellant had anything to say. Appellant replied, "Yes. I would like to know how come I cannot get another attorney if I cannot get along with my attorney."

    2.

    The Honorable Davie L. Wilson, retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.