Affirmed and Opinion filed January 22, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00337-CR
JAMIE ALBERTO IBARRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1287084
OPINION
Appellant, Jamie Alberto Ibarra, appeals his conviction for aggravated
assault on a public servant, contending he was denied his right to counsel of his
choice, and he received ineffective assistance of counsel. We affirm.
I. BACKGROUND
According to the record evidence, in November 2010, appellant arrived at
the home of Martha Maldonado to see her daughter, Michell Mares, with whom
appellant previously had a relationship. When Maldonado told appellant that
Mares was not home, appellant continued knocking on the door, insisting on seeing
Mares. Because appellant had exhibited harassing behavior in the past, Maldonado
called the police.
When two police officers arrived at Maldonado’s home, they observed
appellant on the porch, using a cell phone. Appellant stood, removed a handgun
from his pocket, and pointed it at his head. Both officers drew their weapons and,
while attempting to calm appellant, they moved near their patrol car to seek cover.
Appellant refused to put down his gun, and he ran away from the house, hiding
behind a truck in a nearby parking lot. Backup officers arrived. Appellant stated
he would not put the gun down unless he went down with it, and he fired the gun at
an officer who was moving to a secure location in the parking lot. The shot did not
hit the officer. A police SWAT team arrived, following appellant as he jumped the
fence of the parking lot and ran to another location, breaking into a truck.
Appellant was shot and injured after pointing his gun at one of the SWAT team
officers.
A jury found appellant guilty of the first-degree felony offense of aggravated
assault against a public servant,1 and found two enhancement paragraphs to be true.
The jury assessed punishment at fifty years’ confinement.
1
See Tex. Penal Code Ann. §§ 22.01(a)(2), (b)(1); 22.02(a)(2), (b)(2)(B) (West 2011)
(providing that person commits aggravated assault, as a first-degree felony, if he intentionally
and knowingly threatens with imminent bodily injury a person the actor knows is a public
servant, while the public servant is lawfully discharging an official duty, and the actor uses or
exhibits a deadly weapon).
2
II. COMPLAINTS REGARDING COUNSEL OF APPELLANT’S CHOICE
In his first issue and second issues, appellant contends he was denied the
right to counsel of his choice under the United States Constitution and the Texas
Constitution.
About eight months before the case proceeded to trial in April 2013,
appellant filed a handwritten “Motion to Dismiss Defendant’s Attorney of Record,
. . . and Appoint Defendant a Public Defender,” alleging he “employed [counsel]
some 20 months previous to the date of the filing of this motion.” Appellant
further asserted counsel had failed to provide “reasonably effective assistance”
because appellant had no contact with counsel in the past seven months, and that
counsel had “taken no affirmative action to preserve and to protect the valuble (sic)
rights of the Defendant.” Appellant’s motion alleged counsel told him, “we do not
have O.J. Simpson money to pay for expert witnesses on forensic’s (sic) and
ballistics.” Appellant did not notify the trial court he was indigent or without the
financial ability to obtain counsel. Appellant requested the trial court dismiss
retained counsel and “appoint a new counsel/Public Defender to act in (sic) behalf
of Defendant.” The record does not contain an order in which the trial court
disposed of this motion.2
The week prior to trial, appellant asked to make a record to renew his
complaints regarding counsel, asserting (1) appellant had been asking for counsel
to remove himself from the case, (2) appellant’s counsel had been “defective and
ineffective in filing proper motions,” and (3) appellant had been requesting but had
been denied a right to a speedy trial, and he had not “been treated fair.” Appellant
2
Appellant attempted to appeal the orders denying motions to recuse in Cause Nos. 14-
12-01152-CR and 14-12-00152-CR, which we dismissed because they were interlocutory. In his
appellate brief, appellant makes no complaint about them.
3
complained he had been working with retained counsel “for too long already” and
“on the record, he’s fired. My family has called him and fired him.” Counsel
questioned appellant who admitted there had been numerous trial dates (over a
dozen resets), he had refused to speak with counsel for almost a year, he had
refused to sign trial reset forms, and he had continually ordered counsel to “Get
away, you’re fired.” The trial court advised appellant to work with counsel and
confirmed retained counsel would continue to represent appellant for purposes of
trial.
Counsel for appellant filed a written motion to withdraw four days prior to
trial, which was heard by the trial court the same day. The trial court noted the
case had been pending for a very long time and was preferentially set, made a
finding that appellant refused to cooperate with counsel, and denied the motion.
Appellant asserts here he was deprived of his constitutional “right to counsel
of his choice” because the counsel his family hired was not of his choice, and the
trial court should have appointed different counsel.
A. Complaint under the United States and Texas Constitutions
The Sixth Amendment to the United States Constitution and the Texas
Constitution guarantee a criminal defendant the right to have assistance of counsel.
See U.S. Const., amend. VI (providing, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . and to have the assistance of
counsel for his defense”); Tex. Const. art. I, § 10 (providing, “In all criminal
prosecutions the accused shall have a speedy public trial . . . and shall have the
right of being heard by himself or counsel or both . . . .”); Tex. Code Crim. Proc.
Ann. art. 1.05 (West, Westlaw through 2013 3d C.S.); Gonzalez v. State, 117
S.W.3d 831, 836–37 (Tex. Crim. App. 2003). An element of this constitutional
right to assistance of counsel is the right of a defendant who does not require
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appointed counsel to choose who will represent him. See United States v.
Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409
(2006); Gonzalez, 117 S.W.3d at 836–37. But, this right is not absolute. See
Gonzalez-Lopez, 548 U.S. at 144, 126 S.Ct. at 2561; Gonzales, 117 S.W.3d at 837;
see also Wheat v. U.S., 486 U.S. 153, 158–59, 108 S. Ct. 1692, 1697–98, 100
L.Ed.2d 140 (1988) (“[W]hile the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth Amendment, the essential aim of
the Amendment is to guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be represented by the lawyer
whom he prefers.”). For example, a defendant has no right to be represented by an
advocate who is not a member of the bar, an attorney whom he cannot afford or
whom declines to represent him, or an attorney who has a previous or ongoing
relationship with an opposing party. See Gonzalez, 117 S.W.3d at 837.
While there is a strong presumption in favor of a defendant’s right to retain
counsel of choice, this presumption may be overridden by other important
considerations relating to the integrity of the judicial process and the fair and
orderly administration of justice. Id.; see also Gonzalez-Lopez, 548 U.S. at 152,
126 S.Ct. at 2566–67 (stating “[w]e have recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of fairness and against
the demands of its calendar.”) (citations omitted); Ex parte Windham, 634 S.W.2d
718, 720 (Tex. Crim. App. 1982) (listing factors to be weighed in balancing
defendant’s right to retained counsel of choice against trial court’s need for prompt
and efficient administration of justice). Nonetheless, when a trial court
unreasonably or arbitrarily interferes with the defendant’s right to choose retained
counsel, its actions rise to the level of a constitutional violation. See Gonzalez, 117
S.W.3d at 837.
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In the case under review, appellant’s family apparently retained a lawyer on
his behalf to represent him. In his motion to dismiss, and at several hearings,
appellant expressed dissatisfaction with this lawyer and a desire to terminate this
lawyer’s representation of appellant. The record also reflects that appellant refused
on various occasions to communicate with his lawyer about his case. Nonetheless,
the record does not reflect that appellant or any other person on his behalf took any
steps to retain another lawyer to represent appellant. Appellant did not request
additional time to attempt to retain another lawyer, nor did appellant state that he
no longer could afford retained counsel. Appellant did not express any desire to
represent himself. Instead, appellant asked the trial court to appoint a lawyer to
represent him, but appellant did not assert that he was indigent or submit proof that
he was indigent. Appellant had an opportunity to retain a different lawyer, and
appellant had no right to be represented by a court-appointed lawyer of his
choosing. See Gonzalez-Lopez, 548 U.S. at 151, 126 S.Ct. at 2565; Dunn v. State,
819 S.W.2d 510, 520 (Tex. Crim. App. 1991); see also Robinson v. State, 240
S.W.3d 919, 922 (Tex. Crim. App. 2007) (holding a trial court is free to disregard
any pro se motions presented by a defendant who is represented by counsel). We
conclude that the trial court did not unreasonably or arbitrarily interfere with
appellant’s right to choose retained counsel. See Gonzalez, 117 S.W.3d at 837–46.
To the extent appellant complains that the trial court violated his rights
under the United States Constitution and the Texas Constitution by failing to
appoint counsel to represent him, that complaint lacks merit because a trial court
does not have a duty to appoint counsel until the defendant shows he is indigent.
See Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988). A trial court
has no duty to appoint counsel when a defendant has “managed to retain counsel”
or “has made no showing of indigency.” Id.; Easily v. State, 248 S.W.3d 272, 281
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Neither in his motion, nor in his
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pre-trial exchange with the trial court, did appellant claim to be indigent, and he
made no showing that he was indigent. See Gray, 744 S.W.2d at 607.
B. Complaint under the Texas Code of Criminal Procedure
Under his second issue, appellant also complains the trial court erred in
refusing to allow his counsel to withdraw, not inquiring of his indigency, and not
appointing counsel under Texas Code of Criminal Procedure Article 1.051. See
Tex. Code Crim. Proc. Ann. art. 1.051 (West 2014).
We apply an abuse of discretion standard to determine whether the trial
court erred in denying appellant’s counsel motion to withdraw. King v. State, 29
S.W.3d 556, 566 (Tex. Crim. App. 2000). If the ruling falls within the “zone of
reasonable disagreement,” we must affirm the trial court. See Gonzalez, 117
S.W.3d at 836–37; Hobbs v. State, 359 S.W.3d 919, 926 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). The trial court has discretion to determine whether
withdrawal should be granted, balancing the matters asserted with the potential for
obstruction to the judicial process or interference with the administration of justice.
King, 29 S.W.3d at 566; see also Coleman v. State, 246 S.W.3d 76, 86 (Tex. Crim.
App. 2008) (approving of denial of change in counsel where delay in the
administration of justice would have resulted). Appellant’s counsel filed a motion
to withdraw less than a week before trial. Given the proximity of the trial setting,
the length of time the case had been pending, and appellant’s failure to take steps
to retain another lawyer or submit proof of indigency, the trial court did not abuse
its discretion in denying counsel’s motion to withdraw. See King, 29 S.W.3d at
566; Hobbs, 359 S.W.3d at 926–27.
Appellant also asserts that the trial court should have followed the dictates of
Article 1.051 (b), (c) and was required to appoint counsel to represent him. That
statute provides in pertinent part as follows:
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(b) . . . “indigent” means a person who is not financially able to
employ counsel.” (c) An indigent defendant is entitled to have an
attorney appointed to represent him . . . .
Tex. Code Crim. Proc. Ann. art. 1.051. In the trial court, although appellant
requested appointment of counsel, he did not assert he was indigent, make any
showing that he was indigent, or request a determination of indigency. A trial
court does not have a duty to appoint counsel until the defendant shows he is
indigent. See Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281. Because
appellant did not show he was indigent, the trial court was not required by Article
1.051 to appoint counsel to represent him, and thus the trial court did not err in
failing to appoint counsel. See Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at
281.
Appellant also contends that, after the trial court was made aware counsel
was not his attorney of choice and had been fired and that appellant wanted the
trial court to appoint counsel, it was the trial court’s duty to inquire into whether
appellant was indigent, that is, not financially able to employ counsel. The parties
have not cited, and research has not revealed, any statute or legal authority
addressing this issue. We conclude that appellant has not shown that the trial court
erred in failing to inquire as to whether he was indigent. The trial court was not
required to conduct an inquiry on its own motion as to whether appellant was
indigent. See Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004);
Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281.
Having rejected the arguments under appellant’s first and second issues, we
overrule these issues.
II. CLAIM REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, appellant contends he was denied effective assistance of
8
counsel at the punishment phase of the trial.
A. Standard of review and applicable law
To prevail on an ineffective-assistance claim, appellant must establish (1)
trial counsel’s representation fell below the objective standard of reasonableness,
based on prevailing professional norms, and (2) there is a reasonable probability
that the result of the proceeding would have been different but for counsel=s
deficient performance. Strickland v. Washington, 466 U.S. 668, 688–92, 104 S.Ct.
2052, 2065–2067,80 L.Ed2d 674 (1984); see Hernandez v. State, 726 S.W.2d 53,
55–57 (Tex. Crim. App. 1986) (holding Strickland standard applies to ineffective-
assistance claims under Texas Constitution).
We indulge a strong presumption that counsel’s actions fell within the wide
range of reasonable professional behavior and were motivated by sound trial
strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Thus “the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Thompson, 9 S.W.3d at 812. The presumption is overcome only when
evidence of ineffective assistance is “firmly founded and affirmatively
demonstrated in the record.” Melancon v. State, 66 S.W.3d 375, 378 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d) (citing McFarland v. State, 928 S.W.2d 482,
500 (Tex. Crim. App. 1996)). The totality of the representation is the appropriate
context; counsel is not to be judged on isolated portions of his representation.
Strickland, 466 U.S. at 688. Our review of counsel’s performance is highly
deferential, beginning with the strong presumption counsel’s actions were
reasonably professional and motivated by sound trial strategy. See Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
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Where there is no record explaining the underlying reasons for counsel’s
conduct, we will not speculate about them. Perez v. State, 56 S.W.3d 727, 731
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (citing Gamble v. State, 916
S.W.3d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.)); see also Ex parte
Varelas, 45 S.W.3d 627, 623 (Tex. Crim. App. 2001).3 The presumption is not
rebutted where the record is silent as to counsel’s rationale for his trial strategy.
Perez, 56 S.W.3d at 732. We will not find ineffective assistance unless counsel’s
conduct was “so outrageous that no competent attorney would have engaged in it.”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
B. Analysis
Appellant contends his counsel performed deficiently in two respects: (1) by
failing to object to the testimony of Cynthia Glenn, a juvenile probation officer for
Harris County, and (2) failing to object to purportedly improper jury argument.
1. Failure to object to Glenn’s testimony
Glenn testified that, in her role as a juvenile probation officer, she interviews
juveniles to obtain a sense of their family and school dynamic. She reviews the
juvenile offense tracing (“JOT”) reports to understand what occurred with the
juveniles and what they understood. She does not interview them about guilt or
innocence. The interviews help determine if the juvenile should be certified as an
adult relative to the charges.
In 1997, Glenn reviewed appellant’s JOT concerning a robbery in which he
was involved. At that interview, Glenn learned appellant pointed a gun at someone
3
Appellant did not raise in his motion for new trial the ineffective-assistance claim.
While the general rule is an alleged error must be first brought to the attention of the trial court
before it can be heard on appeal, an ineffective-assistance claim will generally not be foreclosed
because of an appellant’s inaction at trial. See Robinson v. State, 16 S.W.3d 808, 809 (Tex.
Crim. App. 2000).
10
to commit a robbery of a bicycle and other property. Appellant stated on the day
of the 1997 arrest he was “high on marijuana” and had “drunk some alcohol.”
Prior to this arrest, appellant had been arrested for marijuana possession.
Appellant admitted he associated with the Barrio Denver Harbor Click gang.
Glenn recalled appellant did not appear to be taking the robbery charge seriously;
he stated the gun used in the robbery was not loaded, so it did not appear to Glenn
that his actions were serious or important to him.
First, appellant urges it was “elementary” that Glenn could not “admissibly
read” from a juvenile offense report, and it was improper to allow testimony from
her about her conversations with appellant. See Tex. R. Crim. App. Evid. 801,
802. Even if this testimony were improper and would have been excluded upon
the objection of appellant’s counsel, in light of evidence of appellant’s prior
convictions4 and the evidence offered in the guilt-innocence phase, which was also
admitted in the punishment phase,5 we conclude that appellant has not shown that
there is a reasonable probability that the result of the punishment phase would have
been different if this testimony had not been admitted.
Next, appellant contends counsel should have asked for a hearing to test the
admissibility under Texas Family Code Section 51.095 of appellant’s statements to
Glenn. See Tex. Fam. Code § 51.095 (b) (1), (2) (West 2011). Statements of a
child are not considered inadmissible if the statement does not stem from an
interrogation or, if voluntary and they have a bearing on the credibility of the child
4
1997 robbery (sentence of two years in TDC), 1999 misdemeanor possession of
marijuana, and criminal trespass, 2000 misdemeanor possession of marijuana, 2004 felony
possession of over 400 grams of cocaine (sentence of 15 years in TDC), and 2011 misdemeanor
trespass.
5
Evidence included appellant’s harassment of Maldonado, pointing his gun at and
running away from police officers, disobeying their orders, firing his gun, and his inability or
refusal to take advantage of numerous offers of second chances.
11
as a witness, or if recorded. See id. Appellant has not shown these statements
were inadmissible. Glenn’s testimony suggests the statements were made in the
context of an interview. There was no suggestion of custodial interrogation. See
Payne v. State, 579 S.W.2d 932, 933 (Tex. Crim. App. [Panel Op.] 1979) (holding
statements made when not in custody are admissible).
2. Failure to object to jury argument
Lastly, appellant complains counsel failed to object during closing argument
when the State mentioned information related to prior convictions in the juvenile
offense reports.
Closing arguments are made to assist the jury in its analysis of the evidence
presented at trial in order to reach a just determination. See Temple v. State, 342
S.W.3d 572, 602–603 (Tex. App.—Houston [14th Dist.] 2010), aff’d 390 S.W.3d
341 (Tex. Crim. App. 2013). Jury argument may encompass a summation of the
evidence, reasonable deductions which can be drawn from the evidence, answers to
opposing counsel’s argument, and a plea for law enforcement. Id. (citing Brown v.
State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008)). The record reveals the
prosecutor properly summarized the evidence adduced at trial, asked the jury to
consider appellant’s criminal background in assessing punishment, and responded
to opposing counsel’s argument. An attorney’s failure to object to proper
argument cannot be ineffective assistance. See Richards v. State, 912 S.W.2d 374,
379 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).
In summary, having rejected all of appellant’s ineffective-assistance claims,
we overrule his third issue.
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We affirm the trial court’s judgment.
/s/ John Donovan
Justice
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Publish — TEX. R. APP. P. 47.2(b).
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