Shawn Bean v. State ( 2010 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00098-CR
Shawn BEAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CR-2614
Honorable Sharon MacRae, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: March 3, 2010
AFFIRMED
A jury found appellant Shawn Bean guilty of possession of a controlled substance, less than
one gram. After appellant pled “True” to two enhancements, the jury assessed punishment at five
and a half years’ confinement. On appeal, appellant argues (1) the trial court erred by refusing
defense counsel’s request to withdraw and (2) he was deprived of effective assistance of counsel.
We affirm.
04-09-00098-CR
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of February 21, 2008, Patrol Officer Hartford Lemm spotted appellant
walking down Hays Street in the road near the curb, not on the nearby sidewalk, in violation of the
Texas Transportation Code. See TEX . TRANSP. CODE ANN . § 552.006(a) (Vernon Supp. 2009)
(pedestrian may not walk along and on roadway if adjacent sidewalk is provided and accessible).
Officer Lemm testified appellant’s arm appeared stiff, indicating to Officer Lemm that appellant
might be carrying a weapon or drugs. Officer Lemm followed appellant in his patrol car and
eventually stopped his car and called appellant over. Appellant stopped walking, took two steps
towards the officer, and then dropped a plastic bag from his hand. When appellant reached the patrol
car, the officer performed a quick “pat down” for weapons. Officer Lemm then retrieved the plastic
bag appellant had dropped and immediately suspected its contents to be crack cocaine. Appellant
was arrested, and the bag’s contents subsequently tested positive for cocaine.
On February 22, 2008, the trial court appointed appellant his first attorney. On June 6, 2008,
appellant’s counsel filed a motion for substituted counsel citing a conflict of interest not conducive
to the attorney-client relationship. The trial court granted the motion and appointed a second
attorney to represent appellant. On August 19, 2008, appellant filed a pro se motion to dismiss
appointed counsel claiming an irreparable and antagonistic relationship with his second counsel. On
September 3, 2008, appellant’s second attorney filed a motion to withdraw as counsel citing an
inability to effectively communicate with appellant. The trial court granted the motion and appointed
appellant a third attorney. A few months later and less than a week before trial, the third attorney
filed a motion to withdraw as counsel stating she was unable to communicate effectively with
appellant. When the case was called for trial, counsel for appellant informed the court that appellant
-2-
04-09-00098-CR
had filed a complaint against her with the State Bar of Texas alleging she was not contacting or
communicating with him effectively. The trial court replied, “I have my own opinion about why he
may have done this, which has very little to do with your actions. I think it’s just a delaying tactic,
and I am going to deny your motion.” The case proceeded to trial, and after the jury found the
appellant guilty, this appeal ensued.
DISCUSSION
In his first issue on appeal, appellant argues the trial court erred by not allowing his third
attorney to withdraw even though appellant had filed a grievance against her with the State Bar of
Texas. We review the trial court’s refusal to allow counsel to withdraw from a case for an abuse of
discretion. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). The right to counsel may
not be manipulated so as to obstruct the judicial process or interfere with the administration of
justice. Id. A trial court has no duty to search for counsel agreeable to the defendant. Id.
Personality conflicts and disagreements concerning trial strategy are typically not valid grounds for
withdrawal. Id. Additionally, filing a grievance against an appointed attorney does not per se create
a conflict of interest. See Perry v. State, 464 S.W.2d 660, 664 (Tex. Crim. App. 1971) (filing civil
action against appointed attorney does not per se create conflict of interest).
Here, appellant presents no evidence of an actual conflict of interest between his third
attorney and himself. His grievance does not appear in the record, and the only indication of the
grounds of the grievance is counsel’s statement to the court that appellant “is complaining [to the
State Bar of Texas] that I’m not communicating with him.” See Warren v. State, 98 S.W.3d 739,
744-45 (Tex. App.—Waco 2003, pet. ref’d) (mere allegation of ineffective communication not valid
-3-
04-09-00098-CR
grounds for withdrawal). After a review of the record, we conclude the trial court did not abuse its
discretion when it denied appellant’s third appointed counsel’s motion to withdraw.
In his second issue on appeal, appellant argues he was deprived of effective assistance of
counsel because his attorney failed to secure a timely ruling on a motion to suppress. Appellant
acknowledges counsel filed a motion to suppress alleging the police arrested him without probable
cause or other lawful authority; however, counsel informed the court she wanted the motion to run
“concurrently with the hearing of the evidence in the trial so that the Court could at the appropriate
time make a ruling on [the] motion to suppress.” Appellant argues “no reasonable attorney would
try an entire case in front of the jury and then seek to suppress the entire case.”
To determine whether appellant was deprived of effective assistance of counsel, we apply
the well-established standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Appellant must demonstrate his trial counsel’s performance was deficient and that the deficiency was
so serious that it prejudiced his defense. Id. However, a reviewing court will generally assume a
strategic motive if any can be imagined and find counsel’s performance deficient only if his conduct
was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159
S.W.3d 98, 101 (Tex. Crim. App. 2005).
Here, we assume a strategic motive for counsel’s actions exists. If a trial court does not rule
on a motion to suppress until after jeopardy attaches, a ruling in favor of the defendant is not
appealable by the State. See TEX . CODE CRIM . PROC. ANN . art. 44.01(a)(5) (Vernon 2006) (State
entitled to appeal order on motion to suppress only if jeopardy has not attached). In a state jury trial,
jeopardy attaches when the jury is empaneled and sworn. State v. Moreno, 294 S.W.3d 594, 597
(Tex. Crim. App. 2009). Here, counsel’s decision to run the motion concurrently with the trial left
-4-
04-09-00098-CR
open the possibility that a favorable ruling on the motion to suppress after jeopardy attached would
conclusively suppress the evidence against appellant. Accordingly, appellant has failed to
demonstrate his counsel’s actions were deficient, thereby precluding his argument that he was denied
effective assistance of counsel.
CONCLUSION
We overrule appellant’s issues on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
Do Not Publish
-5-