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Date: 07-17-2017

Case Style:

Robert Carlos Del Cid v. The State of Texas

Pizza deliveryman murder suspect already on probation

Case Number: 04-16-00391-CR

Judge: Rebeca Martinez

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney:

Andrew Warthen  
Nicholas A. LaHood

Defendant's Attorney:

David McLane

Description: On July 2, 2014, William O’Neill was delivering pizza at an apartment complex. O’Neill
left his car running during the delivery. Del Cid, who was walking in the parking lot with a friend,
took O’Neill’s car and ran over O’Neill, killing him. Del Cid was charged with capital murder in
Cause No. 2014CR8889. Attorney John Economidy was appointed to represent Del Cid on July 11, 2014.1
On March 24, 2016, the capital murder charge was dismissed and the case was re-indicted
as a felony murder in Cause No. 2016CR2819. On May 31, 2016 and June 3, 2016, De Cid filed
two separate motions to dismiss appointed trial counsel John Economidy and Timothy Molina. On
June 10, 2016, Theresa Connolly, who had been retained by Del Cid the previous day, filed the
defense’s first motion for continuance and motion to substitute attorney. A hearing was held on
the motions on June 10, 2016. Del Cid testified that the relationship with his appointed counsel
had materially broken down. In support, the defense introduced into evidence a letter written by
Economidy and addressed to Del Cid advising Del Cid to “shape up” his act before prosecutors
begin a “feeding frenzy” against him and warning him that by attacking his attorney, “the attorney
can reveal privileged and confidential conversations with you to defend himself.” Del Cid was
upset that Economidy had advised a court-appointed psychologist who had evaluated Del Cid not
to provide a copy of the report to Del Cid. Del Cid threatened to report the psychologist for not
giving him a copy of the report; the defense then paid for an attorney to represent the psychologist
in anticipation of the potential ethics investigation.
The State reported that it was ready to proceed to trial the following Monday, and that a
material witness was scheduled to fly in from out of state on Monday afternoon; other witnesses
were scheduled to drive in. At the conclusion of the hearing, the trial court denied both motions
filed by Connolly, but treated the motion to substitute as a notice of appearance by Connolly and
1 The order of appointment is not included in the record, but the trial court noted at the June 10, 2016 hearing that the appointment was made on this date. Also, the record does not include the order appointing attorney Timothy Molina.
04-16-00391-CR


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entered her appearance. The trial court reminded the parties that the case was set for trial the
following Monday, June 13, 2016.
The case proceeded to trial on June 13, 2016. The jury found Del Cid guilty of murder as
charged in the indictment and assessed punishment at life imprisonment. RIGHT TO CHOICE OF RETAINED COUNSEL In his first issue, Del Cid contends the trial court violated his right to representation by
retained counsel of his choice when it denied his motion to substitute retained counsel and dismiss
appointed counsel, as well as his motion for continuance. In his second issue, he argues the trial
court exceeded its authority under article 26.04 of the Code of Criminal Procedure in refusing to
dismiss appointed counsel once Connolly was retained. See TEX. CODE CRIM. PROC. ANN. art.
26.04 (West Supp. 2016).
Standard of Review. A trial court’s unreasonable or arbitrary interference with a
defendant’s right to choose counsel amounts to a violation of the defendant’s Sixth Amendment
rights. Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003). As long as the trial court’s
ruling falls within the “zone of reasonable disagreement,” the trial court does not abuse its
discretion and we will uphold the ruling. Id. at 839; Hobbs v. State, 359 S.W.3d 919, 926 (Tex.
App.—Houston [14th Dist.] 2012, no pet.).
“A complete denial of the constitutional right to trial counsel” is a structural error subject
to automatic reversal. Fernandez v. State, 283 S.W.3d 25, 31 (Tex. App.—San Antonio 2009, no
pet.); see also Johnson v. United States, 520 U.S. 461, 468–69 (1997). In this case, retained
counsel was permitted to represent Del Cid at trial; nevertheless, Del Cid contends he was harmed
because Economidy and Molina remained on the case. Accordingly, because the alleged error
does not amount to a complete denial of counsel, it does not qualify as structural error. See Roberts
v. State, 220 S.W.3d 521, 527 (Tex. Crim. App. 2007); Fernandez, 283 S.W.3d at 31. Therefore,
04-16-00391-CR


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under Rule 44.2(a), we will only reverse the trial court’s judgment if we determine beyond a
reasonable doubt that the alleged error contributed to Del Cid’s conviction or punishment. TEX.
R. APP. P. 44.2(a); Villarreal v. State, No. 04-13-00553-CR, 2015 WL 1939284, at *3 (Tex.
App.—San Antonio Apr. 29, 2015, no pet.) (mem. op., not designated for publication).
Right to Counsel. A defendant’s right to have assistance of counsel during a criminal
proceeding is guaranteed by both the Texas and United States Constitutions. U.S. CONST. amend.
VI; TEX. CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp.
2016) (“A defendant in a criminal matter is entitled to be represented by counsel in an adversarial
judicial proceeding.”). The right to the assistance of counsel includes the defendant’s right to
obtain that assistance from retained counsel of his choosing. United States v. Gonzalez-Lopez, 548
U.S. 140, 144 (2006); Gonzalez, 117 S.W.3d at 836-37; see also Powell v. Alabama, 287 U.S. 45,
53 (1932) (“It is hardly necessary to say that the right to counsel being conceded, a defendant
should be afforded a fair opportunity to secure counsel of his own choice.”); Ex parte Prejean, 625
S.W.2d 731, 733 (Tex. Crim. App. 1981) (stating that right to assistance of counsel, “of course,
includes freedom of choice in the selection of counsel by the accused”).
However, the right to obtain counsel of one’s own choice is neither unqualified nor
absolute. United States v. Barrentine, 591 F.2d 1069, 1075 (5th Cir. 1979); Gandy v. Alabama,
569 F.2d 1318, 1323 (5th Cir. 1978). “Among other things, a trial court has wide latitude in
balancing the right to counsel of choice against the needs of fairness and the demands of its
calendar.” Scales v. State, No. 04-12-00435-CR, 2014 WL 667506, at *7 (Tex. App.—San
Antonio Feb. 19, 2014, pet. ref’d) (mem. op., not designated for publication) (citing Gonzalez
Lopez, 548 U.S. at 151-52); Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982).
“Trial judges necessarily require a great deal of latitude in scheduling trials . . . . Consequently,
broad discretion must be granted trial courts on matters of continuances; only an unreasoning and
04-16-00391-CR


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arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the
right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar v.
Sarafite, 376 U.S. 575, 589 (1964)).
Article 26.04. Article 26.04 provides that the judges of the district courts trying criminal
cases by local rule shall adopt and publish written countywide procedures for timely and fairly
appointing counsel for an indigent defendant in the county who is arrested for, charged with, or
taking an appeal from a conviction of a misdemeanor or a felony. TEX. CODE CRIM. PROC. ANN. art. 26.04(a) (West Supp. 2016).2 Article 26.04(p) provides that “[a] defendant who is determined
by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in
the case unless a material change in the defendant’s financial circumstances occurs.” Mayer v.
State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010) (quoting TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2016)).3 Del Cid argues that a material change in his financial circumstances
occurred when he retained Connolly (i.e., he was no longer indigent), and thus the trial court was
not authorized to appoint counsel under article 26.04 and erred in denying his motion to substitute
counsel. Analysis. Del Cid’s attorney of choice, Connolly, was present during trial and had the opportunity to participate during all phases of trial, from voir dire through punishment. Thus, the
purpose of the Sixth Amendment and of Article I, section 10 of the Texas Constitution was met,
2 Article 26.04(c) provides: “Whenever a court . . . determines . . . that a defendant charged with . . . a felony or a misdemeanor punishable by confinement is indigent or that the interests of justice require representation of a defendant in the proceeding, the court . . . shall appoint one or more practicing attorneys to represent the defendant . . . .” TEX. CRIM. PROC. CODE ANN. art. 26.04(c) (West Supp. 2016).

3 Article 26.04(p) provides: “A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendant's counsel, or the attorney representing the state may move for reconsideration of the determination.” TEX. CRIM. PROC. CODE ANN. art. 26.04(p) (West Supp. 2016).

04-16-00391-CR


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and Del Cid received effective representation by an attorney of his choice. See Gonzalez, 117
S.W.3d at 836. In any event, the record does not reflect, and Del Cid does not point us to any
evidence, that he was actually prejudiced or harmed by appointed counsel remaining on the case.
Because he has failed to demonstrate harm, we cannot conclude that, even assuming there was
error, reversal is warranted.
Del Cid’s argument regarding article 26.04 is equally unavailing. The purpose of article
26.04 is to ensure indigent defendants who cannot afford to retain counsel are protected in the
“interests of justice,” and nothing in the statute mandates that appointed counsel be dismissed once
counsel is retained. TEX. CRIM. PROC. CODE ANN. art. 26.04(c). We therefore conclude the trial
court did not deny Del Cid his right to retained counsel of his choice, and overrule his first two
issues. See GonzalezLopez, 548 U.S. at 144; Gonzalez, 117 S.W.3d at 836. INEFFECTIVE ASSISTANCE OF COUNSEL In his third issue, Del Cid argues that he was denied the effective assistance of counsel at
trial. The United States Constitution guarantees that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to have the assistance of counsel for his defense.” U.S. CONST. amend. VI.
To prevail on his claim, Del Cid must first show that his counsel’s performance was deficient.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833
(Tex. Crim. App. 2002). Specifically, Del Cid must prove, by a preponderance of the evidence,
that his counsel’s representation fell below the objective standard of professional norms. Bone, 77
S.W.3d at 833. Second, Del Cid must show that this deficient performance prejudiced his defense.
Id. Del Cid “must show a reasonable probability that, but for his counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. (emphasis added). A “reasonable
probability” is one “sufficient to undermine confidence in the outcome.” Id. Failure to establish
04-16-00391-CR


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either deficient performance or prejudice will defeat a claim of ineffectiveness. Strickland, 466
U.S. at 893.
Our judicial scrutiny of trial counsel’s performance must be highly deferential. Rylander
v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). We also keep in mind that generally on
direct appeal the record will be undeveloped and will not provide an explanation for trial counsel’s
alleged failures or omissions. Id. at 110-11; see also Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999) (“Any allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.”). Moreover, where trial
counsel has not had an opportunity to explain his conduct, we should not find deficient
performance unless the challenged conduct is “so outrageous that no competent attorney would
have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
In his motion to dismiss court appointed counsel, Del Cid alleged the following thirteen
ineffective acts and omissions on the part of appointed counsel, particularly Economidy: 1. Counsel refused to respond to legal questions about Del Cid’s case; 2. Counsel was too busy to properly handle Del Cid’s case; 3. Counsel threatened to withdraw because Del Cid required he update family members about the progress of his case; 4. Counsel refused to provide a copy of Del Cid’s psychological evaluation by court-appointed defense expert, Dr. JoAnn Murphey; 5. Counsel refused Del Cid’s request to be evaluated by a psychopharmacologist, even though Dr. Murphey was a psychopharmacologist; 6. Counsel failed to properly present and explain the plea bargain offered by the State; 7. Counsel failed to provide sufficient counsel to Del Cid or provide enough time for him to consider the plea bargain offered by the State; 8. Counsel failed to procure a bond reduction hearing or file a writ of habeas corpus to reduce Del Cid’s bond after being requested to do so by Del Cid; 9. Counsel failed to provide legal advice concerning the application for time accrued in county jail toward Del Cid’s sentence in Texas Department of Criminal Justice;
04-16-00391-CR


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10. Counsel failed to properly investigate a charge of felon in possession of a firearm that was to have been dismissed in 2014 pursuant to a plea bargain or keep Del Cid informed regarding said charge; 11. Counsel failed to counsel or advise Del Cid after he asked him what bearing Dr. Murphey’s evaluation and meeting with him would have on his case, thereby causing him to not answer questions and requesting to speak to his lawyer as he was confused as to whether Dr. Murphey represented him or the State; 12. Counsel falsely stated on May 25, 2016 to Del Cid that he had destroyed his files and that he could not go to trial; and 13. Counsel stated on May 25, 2016 that he would not come see Del Cid in jail prior to trial to prepare for trial, answer Del Cid’s questions, or go over trial strategy.

In addition to these pre-trial acts and omissions, Del Cid argues that the defense failed to
call Dr. Murphey during punishment or to otherwise introduce her report at the punishment phase
of trial. He also contends a report reflecting that he participated in the “GRIT Addiction, Trauma
and Recovery Educational Support Project for Incarcerated Men” at the Bexar County Jail should
have been introduced. He contends that both reports contain mitigating information as to his
mental health that could have been taken into consideration by the jury in assessing punishment.
We cannot conclude Del Cid has met his burden to rebut the strong presumption that
counsel’s pre-trial acts and omissions were reasonably professional and motivated by sound trial
strategy. See Strickland, 466 U.S. at 688-89; Thompson, 9.S.W.3d at 813-14. Except for his third
and fourth complaints, Del Cid has not developed a record to support his claims of ineffective
assistance. See Strickland, 466 U.S. at 689 (when record is silent as to counsel’s trial strategy, we
presume that counsel performed reasonably). Defendant’s Exhibit 1 addresses Del Cid’s third
complaint. In the letter from Economidy to Del Cid, Economidy states, “I have advised you that
I will not follow the advice of your aunt and that your persistence in such a demand will force me
to withdraw from representing you.” It thus appears that Economidy was refusing to follow advice
from a person who was not his client, instead of refusing to update family members about the
progress of the case as Del Cid now contends. In any event, Economidy was not afforded an
opportunity to confirm or deny, or otherwise explain the circumstances surrounding this particular
04-16-00391-CR


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claim; we must therefore defer to counsel’s actions. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.
Crim. App. 2002). As to Del Cid’s fourth complaint, Economidy explained at the June 10, 2016
motions hearing that he did not want Del Cid to have a copy of Dr. Murphey’s psychological evaluation4 because at the time, the State was considering dismissing the capital case and
substituting a new indictment. Economidy did not want Del Cid to “start creating symptoms and
have the removal of the capital charge blow up in our face.” Thus, the record contains a strategic
reason for withholding the evaluation from Del Cid before the case was re-indicted. In any event,
even assuming counsel’s pre-trial representation fell below an objective standard of
reasonableness, Del Cid has failed to demonstrate that he was prejudiced by counsel’s acts and
omissions. See Strickland, 466 U.S. at 694.
Del Cid has likewise failed to develop a record in support of his claims regarding counsels’
failure to call Dr. Murphey or to introduce her report or the GRIT report. The reports are not
contained in the record, and there are no affidavits or record evidence to show what Dr. Murphey
or a witness from the Bexar County Jail would have testified to. Thus, Del Cid failed to rebut the
strong presumption that counsels’ omissions were reasonably professional and motivated by sound
trial strategy. See Strickland, 466 U.S. at 688-89; Thompson, 9.S.W.3d at 813–14. Even assuming
counsels’ representation fell below an objective standard of reasonableness, Del Cid has not shown
a reasonable probability that, but for trial counsels’ failure to call Dr. Murphey or to introduce her
report, the result of the trial would have been different. See Strickland, 466 U.S. at 687. The
evidence showed that Del Cid perpetrated a violent crime against a pizza delivery driver. In
closing, the State referred to Del Cid’s history of theft and violence. Accordingly, Del Cid cannot
4 Del Cid was eventually provided a copy of the psychological evaluation.
04-16-00391-CR


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show a reasonable probability that he would have received a lesser sentence had Dr. Murphey been called or the reports introduced. See Bone, 77 S.W.3d at 833. We overrule Del Cid’s third issue.5

Outcome:

Having overruled Del Cid’s issues on appeal, we affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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