author: KEASLER, J., WOMACK, J.,

text:
    Allen Fitzgerald CALTON, Appellant, v. The STATE of Texas.
    No. PD-441-04.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 2, 2005.

      Jack V. Strickland, Fort Worth, for Appellant.
    C. James Gibson, Asst. District Attorney, Fort Worth, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court,

in which MEYERS, PRICE, JOHNSON, and HERVEY, JJ„ joined.

Evading arrest is a third-degree felony if the actor uses a vehicle and has previously been convicted of evading arrest. We must decide whether the prior conviction must be proved at the guilt-innocence or punishment stage of trial. We conclude that it must be proved at the guilt stage of trial because the statute presents it as an element of the offense, not as an enhancement provision.

Facts

Allen Fitzgerald Calton and his little red Corvette took police officers on the ride of their lives one morning in North Texas. He sped along highway shoulders, squeezed between other vehicles, and ran red lights, all over the course of several miles and with multiple police units in chase. At last, Calton raced into a public park, crashed through some gates, and plunged his sports car right into Lake Lewisville.

Procedural History

Calton was arrested and charged with evading arrest. The indictment alleged that he fled, using a vehicle, from a peace officer attempting to lawfully arrest or detain him. The second paragraph alleged that, before the commission of that offense, Calton had been convicted of evading arrest. Two more paragraphs set out additional prior convictions as “habitual offender” notices.

Calton pleaded not guilty and was tried before a jury. The State did not introduce any evidence of the prior evading arrest conviction or the other two prior convictions at the guilt phase of trial. The jury charge asked the jury to find whether Calton “did intentionally flee, using a vehicle, from ... a peace officer attempting to lawfully arrest or detain him.” It did not ask the jury to find whether Calton had been previously convicted of evading arrest. Based on this charge, the jury found Calton “guilty as alleged in the indictment.”

At the punishment phase, paragraph two of the indictment and both habitual offender notices were read. The jury checked “true” to the “enhancement paragraph” and to both “habitual offender notices.” The jury assessed punishment at 50 years in prison.

Calton appealed. He argued, among other things, that his 50-year sentence was illegal because the State failed to prove an essential element of the offense— specifically, the prior evading arrest conviction. As a result, he contended, he had only been convicted of a state jail felony which, with enhancements, had a maximum sentence of 20 years.

The Court of Appeals agreed. The Court concluded that a prior evading arrest conviction is an element of the offense of third-degree evading arrest and must be proved at the guilt phase of trial. The Court reformed the judgment to reflect a conviction for a state jail felony and remanded the case for a new punishment hearing. We granted the State’s petition for discretionary review to decide whether a prior conviction for evading arrest must be proved at the guilt stage of trial in a prosecution for third-degree felony evading arrest.

Analysis

For evidence to be sufficient to convict, the State must prove each element of the offense beyond a reasonable doubt. Our Legislature has defined the elements of an offense as the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. In discerning whether any given fact constitutes an element of an offense, we look to the plain language of the statute involved and apply that plain language if we are able. If, however, the plain language is ambiguous or leads to an absurd result that the Legislature could not possibly have intended, we resort to extra-textual sources to determine the elements of the offense.

A prior conviction alleged for enhancement “is not really a component element of the primary offense.” Instead, it is “an historical fact to show the persistence of the accused, and the futility of ordinary measures of punishment as related to him.” An enhancement “increase[s] the punishment range to a certain range above that ordinarily prescribed for the indicted crime.” It does not change the offense, or the degree of the offense, of conviction. There can be no enhancement until a person is first convicted of an offense of a certain degree.

To determine whether a prior evading arrest conviction under § 38.04 is an element of the offense or serves as an enhancement, we begin with the text of that statute. It provides in pertinent part as follows:

§ 38.04. Evading Arrest or Detention

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrestor detain him.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; ...

The plain language of this statute demonstrates that the third-degree offense of evading arrest is committed when a person (1) intentionally (2) flees (3) from a person (4) he knows is a peace officer (5) attempting to lawfully arrest or detain him and (6) the actor uses a vehicle while in flight and (7) the actor has been previously convicted of evading arrest. There is nothing ambiguous about the statute. It defines third-degree evading arrest as occurring when the actor has previously been convicted of evading arrest. A conviction for this offense cannot occur until this element is proved. The statute does not set forth a higher punishment range for the offense when the prior conviction is proved. Instead, it requires proof of the prior conviction for the third-degree felony conviction to occur. The plain language of § 38.04 reveals that a prior conviction for evading arrest is an element of the offense of third-degree evading arrest. It, therefore, must be proved at the guilt phase of trial. Nothing about this interpretation produces an absurd result which the Legislature could not possibly have intended.

The State, however, advances a number of arguments as to why a prior conviction for evading arrest should not be an element of the offense of third-degree evading arrest. First, the State contends that there are only two categories of prior convictions in this state—those that are jurisdictional and those that are used for enhancement. The State contends that if the prior conviction is jurisdictional, it must be proved at the guilt phase of trial, and if it-is an enhancement, it must be proved at the punishment phase of trial. According to the State, there is no third category of “non-jurisdictional element of the offense.” In this case, the State argues, the prior conviction was not jurisdictional, because this offense became a state jail felony by Calton’s use of a vehicle. Since jurisdiction was therefore proper in the district court, the additional allegation of a prior conviction was not a jurisdictional element. As a result, it was necessarily an enhancement.

We disagree. The issue in this case is whether the prior conviction must be proved at guilt-innocence or punishment. To sustain a conviction, all the elements of the offense must be proved at guilt. So the relevant question is whether the prior conviction is an element of the offense, not whether it is jurisdictional.

And whether something is an element of an offense is a completely separate inquiry from whether it is jurisdictionally required. We have made clear that jurisdiction is not an element of an offense.

For example, the theft statute defines degrees of the offense in terms of the dollar value of the property that is stolen. The offense is a state jail felony if the value of the property stolen is more than $1,500 and less than $20,000. It is a third-degree felony if the value of the property stolen is more than $20,000 and less than $100,000. As a result, an element of the offense of third-degree theft is that the value of the property stolen is more than $20,000 and less than $100,000. This is not a jurisdictional requirement; jurisdiction vests in the district court once the value of the property becomes more than $1,500. But the property’s value is an element of the offense.

Similarly, the aggravated assault statute provides that an offense is a second-degree felony unless it is committed by a public servant, in which case it is a first-degree felony. That the offense is committed by a public servant is an element of the offense of first-degree aggravated assault, but it is not a jurisdictional requirement. Jurisdiction vests in the district court by the allegation of aggravated assault regardless of whether the actor is a public servant. The allegation of public servant is an element of the offense even though it is not jurisdictional. We reject the State’s contention that there is no third category of “non-jurisdictional element of the offense.”

The State contends that our result violates Art. 36.01. That statute provides that “[w]hen prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.” The State contends that this statute restricts proof of non-jurisdictional prior convictions to the punishment phase. For support, the State relies on Bell v. State.

In Bell, the defendant was prosecuted for possession of marijuana under former Art. 725b. The punishment provision of that statute provided that, upon a first conviction, the offense was a felony punishable by two to ten years in prison, and upon a second or subsequent conviction, the offense was a felony punishable by ten years to life in prison. We concluded that the fact of a prior conviction was an enhancement provision, not an element of the offense. Finding that Art. 36.01 applied, we then asked “whether the prior conviction was alleged for enhancement purposes only, or was also jurisdictional.” Finding that it was for enhancement purposes only, we concluded that the prior conviction should not have been proven by the State during the guilt stage of trial.

The language in Bell implies that a prior conviction alleged for enhancement purposes may be jurisdictional or not, and if it is jurisdictional, it must be proved at the guilt phase of trial. But this implication is imprecise. In fact, a prior conviction must be proved at the guilt stage of trial if it is an element of the offense, whether or not it is jurisdictional. If it is alleged for enhancement purposes, it is not an element of the offense. The focus of the inquiry is on whether the prior conviction is an element of the offense, not on whether it is jurisdictional.

Other language in Bell supports this interpretation. We held that the prior conviction in Bell was for enhancement purposes and was “not an element of the offense.” And we noted that the language of the statute was “specifically designated a penalty section and in every respect appears to be precisely that.” Our focus on the elements of the offense, as well as the text of the statute, supports our conclusion today. We reject Bell’s implication that proof of non-jurisdictional prior convictions must be at the punishment phase. The issue is not whether the prior conviction is jurisdictional but whether it is an element of the offense.

Additionally, the State’s interpretation renders a portion of Art. 36.01 meaningless. Art. 36.01 sets forth the order in which a trial is to proceed. It specifies that “when prior convictions are alleged for purposes of enhancement only and are not jurisdictional,” that portion of the indictment should not be read until the punishment phase. Under the State’s interpretation, the word “and” would be replaced with the word “or.” The State believes that because the prior conviction in this case was not jurisdictional, it should be proved at the punishment phase. But the fact that the prior conviction was not jurisdictional satisfies only the second part of Art. 36.01. The first part of the statute is that the prior conviction is alleged for purposes of enhancement only. That language is not satisfied in this case. In this case, the prior conviction was not alleged for enhancement purposes only. As a result, it needed to be proved at the guilt phase of trial.

The State argues that our interpretation, like that of the Court of Appeals, “splits hairs” in its focus on the text of the statute. But that is exactly the court’s job — to focus on the language of the statute at issue. The State would have us look to the purpose of prior convictions generally, noting that repeated commission of the same crime is recidivist behavior and is not generally regarded as an element of an offense, no matter where it appears in the statute’s text. We reject this approach. We have made clear that statutory interpretation in this state begins with a statute’s text and goes beyond that limit only in extraordinary circumstances. The State’s approach ignores the text of Section 38.04.

Finally, the State argues, citing Tamez v. State, that this interpretation prejudices defendants because it requires the prior conviction to be proved at guilt. While we acknowledged in Tamez the “strong likelihood that the jury may improperly use [prior convictions] in reaching its verdict,” that case involved a defendant’s offer to stipulate to jurisdictional prior convictions in a DWI case. It does not control the question of whether the prior conviction in an evading arrest case need be proved at guilt or punishment. Our answer is governed by the language of Section 38.04. If the Legislature believes that our result today prejudices defendants, it may remedy the problem by revising the language of its statute.

Conclusion and Judgment

The Court of Appeals correctly held that the prior conviction in this case was an element of the offense and had to be proved at the guilt phase of trial. We affirm the judgment of the Court of Appeals.

WOMACK, J., filed a dissenting opinion in which KELLER, P.J., HOLCOMB, and COCHRAN, J.J., joined.

WOMACK, J.,

dissenting in which KELLER, P.J., HOLCOMB, and COCHRAN, J.J., joined.

I agree with the Court’s opinion (ante, at 234); “There is nothing ambiguous about the statute.” The question is whether the unambiguous language that moves an offense of evading arrest from the misdemeanor classification into the felony classification is an element of the offense.

“Evading arrest or detention” is an offense under Section 38.04 of the Penal Code, the relevant parts of which read:

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest or detain him.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
( A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; or
(B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
(3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight.

The appellant was convicted of the third-degree felony level of the offense, which required proof of the terms in Subsections (a) and (b)(2)(A).

The Court’s opinion lists the seven things that are required to be proved in such a case.

Then it says that the unambiguous statute “defines third-degree evading arrest as occurring when the actor has previously been convicted of evading arrest. A conviction for this offense cannot occur until this element has been proved.”

The last sentence seems to me to assume the thing that it to be proven: that this required fact is an “element.” To support the conclusion that the fact is an element, the opinion advances nothing more than that it is required. But a mere requirement of proof does not an element make.

“Element of offense” is defined by Section 1.07(a)(22) of the Penal Code as:

“(A) the forbidden conduct;
(“B) the required culpability;
“(C) any required result; and
(“D) the negation of any exception of the offense.”

As one parses the terms in Section 38.04 in the order in which they appear, one sees clearly that some are elements.

“Intentionally” is required culpability. See Section 6.02, which is captioned “Requirement of Culpability,” and which begins, “(a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.” Therefore it is an element.

“Flees from” is forbidden conduct. See Sections 1.07(a)(10) (“ ‘Conduct’ means an act or omission and its accompanying mental state” and 6.01(a) (“A person commits an offense only if he voluntarily engages in conduct, including an act, an omission or possession”). Therefore it is an element.

“A person he knows is a peace officer attempting to arrest or detain him” is an interesting term that can be seen as both required culpability (a particular knowledge) and a circumstance surrounding the offense if, as seems likely, there in fact must have been a peace officer who was attempting to lawfully arrest or detain him. Therefore this is an element.

“The actor uses a vehicle while the actor is in flight” is conduct, and therefore an element.

The two remaining terms, which are at issue in this case, are complementary possibilities in cases in which the conduct of using a vehicle while in flight has been proved. Such an actor either “has not been previously convicted under this section,” in which case the offense is a state jail felony under Subsection (b)(1), or “has been previously convicted under this section,” in which case the offense is a felony of the third degree under Subsection (b)(2)(A). What are these terms?

They are not conduct, they are not culpability, they are not a result, and they do not negative an exception. In the plain language of the statute, they are not elements. For the purist, who goes no further when there is no ambiguity in the plain language of the statute, the issue of the prior conviction’s being an element of the offense is concluded.

What is this fact question, if not an element? It seems to me that it is an enhancement. That word is not defined in the Penal Code, but the caption of Section 49.09 (“Enhanced Offenses and Penalties”) indicates that the Code provides for enhancements of offenses and of penalties.

“Offenses,” Section 12.02 says, “are designated as felonies or misdemeanors.” In each of these designations, offenses are classified into categories according to the relative seriousness of the offense. Felonies are classified into categories of capital, first degree, second degree, third degree, and state jail; misdemeanors, into categories of A, B, and C. To each classification, “ordinary punishments” are assigned, and “exceptional sentences” are provided.

I suggest that the exceptional sentences are “enhanced penalties.” They include “penalties for repeat and habitual felony offenders” under which prior convictions for felonies enhance the penalties for felonies, and “penalties for repeat and habitual misdemeanor offenders” under which prior convictions for felonies or misdemeanors enhance misdemeanor penalties without changing the misdemeanor offenses to felony offenses. They also include enhanced penalties for offenses “committed because of bias or prejudice,” “certain offenses resulting in loss to nursing and convalescent homes,” and offenses that were committed by use of a controlled substance; the structure of which is that proof of the enhancing fact increased the penalty to the next higher category of classification, except that if the offense is a Class A misdemeanor of a first-degree felony, the classification remains the same and a higher minimum punishment is provided.

Enhancement of offenses from a misdemeanor designation to a felony designation by allegation and proof of prior conviction is provided for particular offenses. One is the offense of theft, which would otherwise be a misdemeanor, that is enhanced to a felony classification when the defendant has been previously convicted two or more times of theft. Others are the offenses of driving, flying, boating, and operating an amusement ride while intoxicated, which are enhanced from misdemeanors to felonies if the person has been convicted twice previously of a related offense, or convicted once previously of intoxication manslaughter.

The offense of evading arrest may be classified as a misdemeanor or a felony, and the difference is made by an element of the offense, namely the conduct of using a vehicle while the actor is in flight. The fact of a vehicle user’s prior conviction enhances the penalty within the felony classification from the lowest felony level to the next higher. I would conclude, therefore, that under the plain language of the statutes the prior conviction is not an element of the offense, and that the prior conviction is a penalty enhancement.

What difference does this make? These distinction between an element and an enhancement can be important because of Articles 36.01 and 37.07 of the Code of Criminal Procedure, which provide for the order of proceeding in a jury trial of any criminal action. The first step in Article 36.01(a) is:

1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.

The final step is:

8. In the event of a finding of guilty, the trial shall then proceed as set forth in Article 37.07.

Since the amendment of these statutes took effect in 1966, criminal trials in the district and county-level courts have been “bifurcated” into guilt and punishment hearings, and the reading and proof of an enhancement allegation in a charging instrument has been postponed to the punishment hearing — with one exception: the enhancement allegation that is “jurisdictional.”

The enhancement that may be “jurisdictional,” as Article 36.01(a)(1) puts it, is the kind that enhances an offense from a misdemeanor classification to a felony classification. Since the district courts of Texas generally have original jurisdiction of criminal cases of the grade of felony, while the county courts generally have original jurisdiction of misdemeanors, an allegátion of a prior conviction that enhanced an offense from a misdemeanor designation to a felony designation would be “jurisdictional” in the trial of a case in most district courts.

In this particular case, there was no possibility of the enhancement allegation’s being jurisdictional, because the case was tried in a court that had jurisdiction of misdemeanors as well as felonies, namely the Tarrant County Criminal District Court No. 4. That court, in addition to “the jurisdiction provided by the constitution and the general laws of this state for district courts” and “the jurisdiction provided by other law,” also “has concurrent jurisdiction with the county criminal courts in Tarrant County over misdemeanor cases.” Therefore neither allegation of a prior conviction was “jurisdictional” in the meaning of Article 36.01(a)(1).

The actual jurisdiction of the trial court has not been discussed in the Court of Appeals’ opinion, the petitions and briefs in this Court, or in this Court’s opinion. I believe it disposes of the State’s argument that the enhancement allegation of the pri- or conviction for evading arrest was jurisdictional, since there could have been no jurisdictional effect in this trial.

I believe that the Court of Appeals erred in holding that the allegation of the prior offense was an element of -the offense, and I am sure that it was not alleged for jurisdiction. I would, therefore, reverse the judgment of the Court of Appeals and affirm that of the Criminal Disr trict Court.

      . Calton v. State, 132 S.W.3d 29 (Tex.App.-Fort Worth 2004).

      . Id. at 34.

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . Tex. Pen.Code § 1.07(a)(22).

      . See State v. Mason, 980 S.W.2d 635, 638 (Tex.Crim.App.1988); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

      . Id.

      . Brooks v. State, 957 S.W.2d 30, 32 (Tex.Crim.App.1997).

      . Id.

      . Ex parte Beck, 769 S.W.2d 525, 527 (Tex.Crim.App.1989).

      . Mason, 980 S.W.2d at 641.

      . 504 S.W.2d 498 (Tex.Crim.App.1974).

      . Id. at 500.

        .Id. at 501.

        .Id.

      . Id. at 500.

      . Id.

      . 11 S.W.3d 198 (Tex.Crim.App.2000).

      . Id. at 202.

      . " 'Actor' means a person whose criminal responsibility is in issue in a criminal action.” Penal Code § 1.07(a)(2).

      . ⅛§ 12.04.

      . Id., § 12.03.

      . See id., chapter 12, subchapters B ("ordinary misdemeanor punishments") and C ("ordinary felony punishments”).

      . See id., subchapter D.

      . See id., § 12.42.

      . See id., § 12.43.

      . See id., § 12.47.

      . See id., § 12.48.

      . See id., § 12.49.

      . Id., § 31.03(e)(4)(D).

      . Id., § 49.09(b).

      . Code Crim. Proc. art. 36.01(a)(1).

      . Id., art. 36.01(a)(8).

      . See Code Crim. Proc. art. 4.05.

      . See id., art. 4.07. The statutes that create some county courts give them jurisdiction of felony cases.

      . Gov’t Code § 24.309 (made applicable to the Tarrant County Criminal District Court No. 4 by id., § 24.913(e)).

      . Id., § 24.913(e).

      . Ibid.


source: Caselaw Access Project

author: SHERRY RADACK, Chief Justice.

license: Public Domain

text:
    Damian Demarcus WILLIS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-00-01087-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 24, 2004.
    Discretionary Review Refused Dec. 1, 2004.

      Charles Hinton, Houston, for Appellant.
    Bridget Holloway, Asst. Dist. Attomey-Harris County, Houston, for appellee.
    Panel on remand consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS

SHERRY RADACK, Chief Justice.

Appellant, Damian Demarcus Willis, was charged with possession with intent to manufacture or deliver a controlled substance, namely, phencyclidine (PCP). Appellant’s indictment was enhanced with two prior felonies. After the trial court denied his motion to suppress, appellant pleaded guilty and pleaded true to enhancements pursuant to a plea bargain agreement with the State. Thereafter, the trial court assessed appellant’s punishment at 25 years’ confinement.

A panel of this Court originally dismissed appellant’s appeal for lack of jurisdiction based on appellant’s waiver of the right to appeal. Willis v. State, No. 01-00-01087-CR, 2001 WL 783753 (Tex.App.-Houston [1st Dist.] July 12, 2001, pet. granted) (Willis I). In light of Alzarka v. State, 90 S.W.3d 321 (Tex.Crim.App.2002), the Texas Court of Criminal Appeals reversed, holding that “the trial court’s subsequent handwritten permission to appeal controls over a defendant’s previous waiver of the right to appeal, allowing the defendant to appeal despite the boilerplate waiver.” Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App.2003) (Willis II). The Court of Criminal Appeals remanded the case to our Court for consideration of the merits of appellant’s cause. Id.

In two points of error, appellant contends that the trial court erred by denying his motion to suppress. We conclude that the search of appellant’s vehicle was lawful as a search incident to arrest, and, therefore, affirm.

Background

On April 13, 2000, Houston Police Department (HPD) Officer J. Holmes stopped Euland Knapp because the license plate on his vehicle had outstanding city warrants. Appellant’s brother, Jammar Willis, who was following Knapp in another vehicle, pulled up and parked at the scene of the traffic stop on the 610 Freeway. Jammar called appellant and instructed him to come to the scene, so that in the event that Knapp was arrested, Jammar could take Knapp’s car from the freeway and appellant could follow in Jammar’s car.

Shortly thereafter, appellant arrived alone at the scene in his car. Appellant pulled in behind Officer Holmes, got out of his car, and approached Officer Holmes. Appellant told Officer Holmes that he would drive Knapp’s car home for Knapp and provided his Texas driver’s license to Officer Holmes at the officer’s request. After a check of appellant’s driver’s license revealed an open arrest warrant, Officer Holmes arrested appellant and placed him in the back of a marked police car.

After arresting appellant, Officer Holmes searched appellant’s car, pursuant to HPD policy, requiring that, subsequent to an arrest, an officer document the contents of a vehicle. During the search, Officer Holmes noticed $2,140 in cash, broken down into denominations, located in the console of appellant’s car, and two small bottles of liquid on the floor of the car. Additionally, Officer Holmes noticed part of a plastic bag protruding from beneath the glove compartment. Officer Holmes opened the glove compartment and saw scratch marks on it, indicating that the glove compartment had been removed and reinstalled more than once. Officer Holmes removed the compartment and, as a result, noticed 15 other similar bottles of liquid inside the bag that was protruding from the glove compartment. The strong “chemical-like” odor of the bottles caused Officer Holmes to suspect that the liquid was either PCP or embalming fluid, and the liquid was later determined to be PCP.

Discussion

Standard of Review

In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving “almost total deference to a trial court’s determination of historic facts” and reviewing de novo the court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997)). If the issue involves the credibility of a witness, such that the demeanor of the witness is important, then greater deference will be given to the trial court’s ruling on that issue. Guzman, 955 S.W.2d at 87. The amount of deference that we should give to a trial court’s ruling on a motion to suppress will depend upon whether the trial court is in a better position to decide the issue before it. Id. If the issue is one of application of law to facts, and the ultimate resolution of that issue does not turn on an evaluation of credibility and demeanor of a witness, then we may review that issue de novo. Id. at 89. Furthermore, we will sustain the trial court’s ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002)).

Search Incident to Arrest

An exception to the Fourth Amendment prohibition against warrant-less searches is a search incident to a lawful arrest. Thornton v. United States, 541 U.S. 615, 617, 124 S.Ct. 2127, 2129, 158 L.Ed.2d 905, 910-11 (2004); New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Satterwhite v. State, 726 S.W.2d 81, 87 (Tex.Crim.App.1986), rev’d on other grounds, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284. 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Police may search the passenger compartment of a vehicle and containers within it when the search is a contemporaneous incident to a lawful arrest. Belton, 453 U.S. at 460, 101 S.Ct. at 2864; see also Ashton v. State, 931 S.W.2d 5, 8 (Tex.App.-Houston [1st Dist.] 1996, pet. ref’d) (noting that, in applying Belton, federal courts have held police may search the passenger compartment of a vehicle even after the arrestee has been removed from the vehicle to be searched and either handcuffed or placed in a police car).

The search incident to arrest can include a search of the vehicle’s glove compartment. Satterwhite, 726 S.W.2d at 86. Moreover, the search incident to arrest includes the search of closed containers within the passenger compartment of the vehicle. The United States Supreme Court has held that:

Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

Belton, 453 U.S. at 461, 101 S.Ct. at 2864.

In the present case, Officer Holmes searched the glove compartment of appellant’s vehicle after placing appellant under lawful custodial arrest for an open warrant. See Tex.Code Crim. Proc. Ann. art. 15.01 (Vernon Supp.2004). Under these circumstances, whether the glove compartment was open or closed has no effect on the lawfulness of the search of appellant’s vehicle. See Belton, 453 U.S. at 461, 101 S.Ct. at 2864. Because Officer Holmes’s search of appellant’s vehicle was a contemporaneous incident to appellant’s lawful arrest, we hold that it constituted a proper search. See Belton, 453 U.S. at 460, 101 S.Ct. at 2864; Satterwhite, 726 S.W.2d at 87. Accordingly, we overrule appellant’s first point of error.

Having concluded that the contemporaneous search of appellant’s vehicle was proper as incident to appellant’s lawful arrest, we decline to address appellant’s contentions in his two issues on appeal that the search was an improper inventory search. See Laney, 117 S.W.3d at 856 (allowing appellate court to uphold trial court’s ruling if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case.). Accordingly, we overrule appellant’s two points of error.

Conclusion

We affirm the judgment of the trial court.

      . Appellant, Jammar and Trimmer each testified that no plastic bag protruded out of the glove compartment.

      . The record contains conflicting testimony regarding Officer Holmes’s removal of appellant’s glove compartment. During the suppression hearing, Officer Holmes testified that the glove compartment was easily removed, while Jammar and Trimmer testified that Officer Holmes had to apply significant physical force to remove it. However, Jammar testified that he knew the glove compartment was removable. Jammar further testified that, prior to Officer Holmes's search of appellant’s car, Jammar had opened the glove box to retrieve a warrant receipt for appellant, leaving the glove box open as Jammar returned to give the receipt to another officer on the scene.


author: EVELYN V. KEYES, Justice.

text:
    Rafael PINEDA, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00457-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2004.
    Discretionary Review Refused Oct. 20, 2004.

      Ken Goode, Houston, TX, for Appellant.
    Rafael Pineda, Houston, pro se.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Donald W. Rogers, Jr., Assistant District Attorney, William J. Delmore, III, Chief Prosecutor, Appellate Division, Houston, TX, for Appellee.

      Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Rafael Pineda, was charged with the felony offense of aggravated robbery and pleaded not guilty. A jury found appellant guilty and assessed his punishment at 20 years’ confinement. In three points of error, appellant contends the interpreter’s absence during certain voir dire proceedings denied him (1) his constitutional right to effective assistance of counsel, (2) his constitutional right to due process, and (3) his constitutional right to be present and participate in jury selection. We affirm.

Facts

On December 9, 2002, police responded to a robbery in progress at the Créditos Columbia jewelry store. Jose Vargas, the owner of the store, and his son, Nilton Vargas, were both working at the store. Both testified that three men came into the store and tried on some jewelry, and then one of them pulled out a pistol and exclaimed, “This is a robbery.” Two of the robbers had pistols, while the third carried what looked like a rolling pin. Once the robbery was announced, all three men donned ski masks.

Jose recognized appellant as a patient at the physical therapy clinic he attended. They had been treated at the clinic on adjoining tables, and Jose had given appellant his business card for the jewelry store. Jose provided police with appellant’s name and address. He also picked appellant out as the robber in a photo array and videotaped lineup. At trial, both Jose and Nilton identified appellant as one of the robbers. They also both testified that appellant held a gun to Jose during the robbery.

Appellant testified and relied upon an alibi defense. The jury, however, rejected appellant’s defense, and convicted him of aggravated robbery.

Procedural Background

Appellant, a non-English-speaking defendant, complains about the absence of an interpreter during part of the voir dire proceedings. The appellate record begins with voir dire. Although there is no indication in the beginning pages of the record as to the appointment or presence of an interpreter, the Court, when making the introductions of the parties to the prospective jury panel, introduced Ms. Marilou Flores as the interpreter. During the court’s and the parties’ questioning of the venire, the record again indicates the presence of the interpreter. However, after voir dire examination of the panel, and after the trial court told the parties to make their strikes, the record contains the following notation: “(Interpreter not present to interpret for the defendant.).” The appellate record contains the following notation five pages later: “(Interpreter present.).”

The five pages of the reporter’s record of which appellant complains indicate that, during the absence of the interpreter, the trial court addressed the panel of prospective jurors on the general procedures used by courts for jury selection, including remarks on how prospective jurors are selected, peremptory challenges, challenges for cause, size of jury panels, television coverage, the court’s appreciation to those who honored their jury duty summons, and conclusion of service by prospective jurors not selected on the jury. These five pages were the only trial proceedings apparently not translated. No party objected to the interpreter’s absence while the court addressed the panel.

During this time, the record indicates that the parties were deciding upon then-peremptory strikes of potential jurors. The appellate record does not reflect whether the interpreter was with appellant and his counsel while they were discussing and making these strikes.

Discussion

Due Process and Right to be Present and Participate in Jury Proceedings

In his second and third points of error, appellant contends that, because of the interpreter’s absence, he was denied due process and his right to be present and participate in jury selection.

The right of a non-English speaking person to the assistance of an interpreter during trial proceedings is guaranteed by the Confrontation Clause of the Sixth Amendment to the United States Constitution, the Due Process Clause of the Fourteenth Amendment, article I, section 10 of the Texas Constitution, and article 38.30 of the Texas Code of Criminal Procedure. See Baltierra v. State, 586 S.W.2d 553, 558 (Tex.Crim.App.1979); Garnica v. State, 53 S.W.3d 457, 458 (Tex.App.-Texarkana 2001, no pet.). The Confrontation Clause creates a constitutional right to be present at trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). The right to an interpreter stems from the right to be present and confront and be confronted by witnesses and it extends to all portions of the trial proceedings. Baltierra, 586 S.W.2d at 559. An accused’s presence does not suffice to provide confrontation if he does not understand the language of the forum. Id. at 556-57.

Appellant contends that the absence of the interpreter during voir dire violated his right to due process and his right to be present and participate in jury selection. He argues that the absence of the court interpreter prevented him from intelligently exercising his peremptory challenges and that the absence of the interpreter compromised his right to be present and participate in the jury selection.

The State initially argues that appellant has waived any error “because he failed to object to the supposed absence of an interpreter during the trial court’s remarks to the jury panel.” Although there is support for the State’s contention that confrontation rights generally, and the right to an interpreter specifically, can be waived, the right to an interpreter is not deemed waived if the trial court is aware that an accused does not speak or understand English. Id. Recently, the Court of Criminal Appeals held that the right to an interpreter is a category-two Marin right—a right that must be implemented by the system unless expressly waived. Garcia v. State, 149 S.W.3d 135, 144, 2004 WL 574554, *8 (Tex.Crim.App. Mar.24, 2003). Because appellant did not expressly waive his right to an interpreter, appellant’s failure to object to the interpreter’s absence does not constitute a waiver of his rights.

Nothing in the record, however, demonstrates that the interpreter was not available to appellant while appellant and his counsel were deciding upon peremptory strikes of potential jurors. The question, therefore, is whether appellant had the right to have an interpreter translate for him the instructions given by the trial judge to the venire while the parties were making their strikes. Assuming without deciding that the absence of an interpreter made appellant “absent,” in violation of the Confrontation Clause, we nevertheless conclude that any such error was harmless.

The Texas Court of Criminal Appeals has adopted the “reasonably substantial relationship” test to satisfy Fourteenth Amendment due process and Sixth Amendment Confrontation Clause concerns. Routier v. State, 112 S.W.3d 554, 576 (Tex.Crim.App.2003). This test focuses on the effect of the error on the advancement of the defendant’s defense; the defendant’s presence must bear a reasonably substantial relationship to the opportunity to defend. Adanandus v. State, 866 S.W.2d 210, 219 (Tex.Crim.App.1993). If the defendant’s presence would not have furthered the defense, his presence does not bear a reasonably substantial relationship to the opportunity to defend. Id.

Here, during the interpreter’s absence, the trial court made general remarks to the panel. None of these remarks involved appellant or his case, or required his contribution to the proceedings. Any error in this regard, therefore, does not bear a substantial relationship to appellant’s opportunity to defend himself. See Weber v. State, 829 S.W.2d 394, 396-97 (Tex.App.-Beaumont 1992, no pet.) (holding defendant’s temporary absence during voir dire proceedings harmless where presence did not bear reasonably substantial relationship to opportunity to defend because nothing occurred which could have affected defendant, had defendant been present; there was no contribution he could have made to proceedings).

Even if the absence of the interpreter violated appellant’s constitutional rights, therefore, under the reasonably substantial relationship test, the error did not affect the outcome of the trial and thus, was harmless.

We overrule appellant’s second and third points.

Effective Assistance of Counsel

In his first point of error, appellant claims he was denied his right to effective assistance of counsel because of the court interpreter’s absence from a portion of the voir dire proceedings.

To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First, appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Id., 466 U.S. at 688, 104 S.Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex.App.-Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex.Crim.App.1999). Second, appellant must establish that counsel’s performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. Thus, appellant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998).

It is presumed that trial counsel’s strategy was sound and that the representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant has overcome these presumptions, we are limited to the facts of the case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). An appellant “making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2052. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

Here, appellant does not present any argument as to why or how he received ineffective assistance of counsel. There was no motion for new trial. Therefore, the record is silent as to what appellant’s trial counsel’s strategy was during trial. To find that counsel was ineffective would call for speculation, which we will not do. Gamble, 916 S.W.2d at 93. Moreover, appellant has not demonstrated how the lack of a translator during part of the voir dire caused his attorney to commit any unprofessional error, much less one so egregious that, but for that error, the outcome of his trial could have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

We overrule appellant’s first point of error.

Conclusion

We affirm the judgment of the trial court.

      . Tex. Pen.Code Ann. § 29.03 (Vernon 2003).

      . The State does not contest appellant's inability to speak or understand English.

      . During voir dire, appellant's attorney explained to the jury that appellant "doesn't speak English. Obviously, he’s using an interpreter.”


author: ELSA ALCALA, Justice.

text:
    Lester Erwin CARROLL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00444-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2004.
    Rehearing Overruled Sept. 10, 2004.
    Discretionary Review Refused April 13, 2005.

      Emily Munoz Detoto, Nicole DeBorde, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney — Harris County, William J. Del-more, III, Chief Prosecutor, Appellate Division, Shirley Cornelius, Assistant District Attorney — Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

ELSA ALCALA, Justice.

Appellant, Lester Erwin Carroll, pleaded not guilty to the felony offense of robbery and pleaded true to two prior felony convictions alleged as punishment enhancements. A jury found appellant guilty, found the enhancement paragraphs true, and assessed his punishment at life in prison. In three issues on appeal, appellant contends that the trial court erred by denying appellant’s motion to proceed pro se, by not conducting a hearing on his motion to substitute appointed counsel, and by denying that motion. We affirm.

Factual Background

In December, 2001, appellant snatched the complainant’s purse in a shopping-center parking lot, struggled with the complainant, and punched her in the face. He also punched a female eyewitness who intervened to assist the complainant. Appellant represented to complainant that he had a gun, although he did not. Appellant fled, followed by eyewitnesses and others who gave chase until they eventually caught and detained him for police by surrounding him after he had climbed onto a roof.

Procedural Background

1. From December 2001 to November 2002, Appellant Requested Appointed Counsel

Appellant was charged with robbery in the 209th District Court and requested court-appointed counsel by signing a sworn document stating that he desired appointed counsel because he was financially unable to hire an attorney. Between December 21, 2001 and September 18, 2002, Charles Hinton, who was appointed to represent appellant, appeared thirteen times in court on appellant’s behalf. When charges for escape were filed against appellant, the judge of the 209th District Court recused himself and his staff, because they were possible witnesses to the escape offense, and appellant’s case was transferred to the 262nd District Court. On November 13, 2002, the 262nd trial court appointed Ricardo Gonzalez to represent despite appellant’s refusal to sign a document requesting counsel.

2.Appellant Affirms Decision Not to Proceed Pro Se on December 9, 2002

On December 9, 2002, the trial court conducted the following hearing:

Trial Court: All right. We are here in order to talk again about your wish to represent yourself. Is that what you wish to do?
Defendant: No, sir. I’ve talked with my attorney and I’ve decided to allow him to represent me.
Trial Court: Okay. For what it’s worth, I think that’s a good choice.
Defendant: Yes, Sir.

Following the hearing, the case was reset. The reset form was signed by the attorney for the State, Gonzalez, and appellant, and contained a notation that appellant rejected, and the State thereafter withdrew, plea-bargain offers of 20 years for the robbery case and 30 years for the escape case.

3. Appellant’s March 13, 2003 Request to Proceed Pro Se

On March 13, 2003, shortly over one month before the scheduled trial date, appellant filed with the court a written “Motion to Proceed Pro Se.” Attached to his motion was a copy of a March 3, 2002 letter that appellant wrote to Gonzalez to complain of Gonzalez’s performance in representing him. In his letter to Gonzalez, appellant stated, “I am forced to choose between self-representation or ineffective assistance of counsel. It is my intention to motion the court to allow me to proceed pro se.” The trial court denied appellant’s motion the next day. The record does not reflect that the trial court held a hearing on appellant’s motion or why the trial court denied the motion.

4. Appellant’s March 24, 2003 Motion for Substitute Counsel

On March 24, 2003, appellant filed a motion entitled, “Motion for Substitute Counsel,” in which he complained of Gonzalez’s performance. The trial court denied the motion the next day.

5. Appellant’s March 27, 2003 “Acting Pro Se” Motion to Recuse the Trial Judge

On March 27, 2003, appellant filed a pro se “Motion for Recusal.” The motion stated, “... it is necessary that I file this motion pro se. Due to that dire situation of being unable to communicate with my court-appointed attorney....” The document was signed “Lester Erwin Carroll TV, Pro Se.” After conducting a hearing on the motion, the trial court declined to re-cuse and referred appellant’s motion to recuse to the presiding judge of the Second Administration Region. The documents pertaining to the recusal of the trial court judge are the only documents in the clerk’s record that appellant filed with the stated designation that he was acting “pro se.”

6. Appellant’s April 2, 2003 Request For Appointed Counsel

After the State reindicted the cases and assigned new cause numbers, appellant signed the following document, on April 2, 2003, in which he stated, “Lester E. Carroll ... respectfully petitions the Court to appoint counsel to represent him/her in this cause and would show the court that he/she is financially unable to hire an attorney.” Appellant swore to the statement and signed it before the Deputy District Clerk. That same day, the trial court again appointed Gonzalez to represent appellant.

7. Appellant’s Postreappointment Complaints About Trial Counsel

Appellant submitted three written documents to the trial court to complain about Gonzalez’s representation after he was reappointed to represent appellant on April 2, 2003. On April 8, 2003, appellant sent a letter to the trial court requesting appointment of substitute counsel to replace Gonzalez, who, appellant claimed, was providing ineffective assistance. Then, on April 11, 2003, appellant filed a “Motion to Enter Written Communication from Defendant to Court-Appointed Counsel Into the Court Record.” Appellant attached to the motion a letter to Gonzalez in which appellant enumerated seven requests made to Gonzalez. Lastly, on April 17, 2003, appellant filed a “Motion for Continuance,” in which he stated that Gonzalez was inadequately prepared for trial and asked that the trial court reset the jury trial to give his counsel “additional time to provide effective assistance.” The trial court did not conduct a hearing or rule on appellant’s motion for continuance, but nevertheless reset the trial date, at Gonzalez’s request, from April 17, 2003 to April 28, 2003.

8. The Jury Trial

When the jury trial began on April 30, 2003, Gonzalez filed a motion requesting that the jury assess appellant’s punishment. Appellant signed that motion. Gonzalez acted as appellant’s attorney and performed all of his trial responsibilities throughout the two-day trial. Appellant did not voice any objections or complaints about Gonzalez at any time during trial. Likewise, appellant did not ask to perform any of his counsel’s roles during the trial.

Motion to Proceed Pro Se

In his first issue, appellant contends that the trial court erred by denying his motion to represent himself at trial. The State contends that appellant abandoned his motion to proceed pro se and waived his right to self-representation. The Sixth Amendment of the federal constitution guarantees both the right to counsel and the corresponding right to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); Hathorn v. State, 848 S.W.2d 101, 122-23 (Tex.Crim.App.1992); see also Hatten v. State, 71 S.W.3d 332, 334 (Tex.Crim.App.2002) (noting that Faretta rights triggered when accused contests guilt); Tex.Code Crim. Proc. Ann. art. 1.05 (Vernon 1977) (recognizing right of accused to be heard by himself, through counsel, or both).

A defendant who initially asserts his right to appear pro se, but later abandons the right by inviting participation by counsel, waives his right to represent himself. See McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984) (“A defendant can waive his Faretta rights.”); Funderburg v. State, 717 S.W.2d 637, 642 (Tex.Crim.App.1986) (citing McKaskle, 465 U.S. at 182, 104 S.Ct. at 953); see also Tex.Code Crim. Proc. Ann. art. 1.14 (Vernon Supp.2004) (“Waiver of Rights”). The record must adequately reflect that a defendant waived his right to self-representation after asserting it, but proof of waiver of self-representation is not subject to as stringent a standard as proof of waiver of the right to counsel. Funderburg, 717 S.W.2d at 642 (citing Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982)). A record sufficiently demonstrates that a defendant waived his right to proceed pro se if it reasonably appears to the court that the defendant abandoned his initial request to represent himself. Funderburg, 717 S.W.2d at 642 (quoting Brown, 665 F.2d at 611). Mere acquiescence to a trial court’s unmistakable denial of his request to represent himself is not a waiver of a defendant’s right to self-representation. Id. (citing Brown, 665 F.2d at 612).

The only motion to proceed pro se that appears in the record is appellant’s March 13, 2003 motion. Although a hearing on appellant’s motion was required on receipt, in order for the trial court to admonish appellant about the dangers of self-representation, the record does not show that the court conducted a hearing on appellant’s March 13, 2002 motion. Id. at 642; see also Faretta, 422 U.S. 806 at 835, 95 S.Ct. at 2541, 45 L.Ed.2d 562 (holding that if defendant properly asserts right to self-representation, then record must show knowing and intelligent waiver of right to counsel after being made aware of dangers and disadvantages of self-representation.). Although the trial court denied appellant’s March 13, 2002 motion to proceed without conducting the required Faretta hearing, the trial court’s failure to hold the required Faretta hearing is not error if we determine that appellant thereafter abandoned his request to proceed pro se. See Funderburg 717 S.W.2d at 642.

Within the first two weeks after the trial court refused to permit appellant to proceed pro se, appellant took inconsistent actions concerning whether he would represent himself despite the trial court’s ruling. He first filed a motion requesting that new counsel replace Gonzalez, but, a few days later, filed a motion to recuse the trial judge in which appellant designated himself as acting “pro se.” Although these actions may not have clearly indicated whether appellant continued to wish to proceed pro se, appellant’s actions that followed unequivocally reflect his wish that appointed counsel represent him.

The record shows that appellant affirmatively requested representation by counsel on April 2, 2003, when appellant signed a document, under oath, in which he stated that he was financially unable to hire an attorney and was petitioning the court to appoint counsel to represent him. In addition to this sworn request for appointed counsel that followed appellant’s request to proceed pro se, the record repeatedly shows that appellant wished to be represented by counsel. The April 8 and April 11, 2008 correspondence to the trial court lodged complaints about Gonzalez, but also affirmed that appellant sought substitute counsel and, therefore, continued representation by counsel. Appellant’s documents show no intent to proceed pro se as an alternative to appellant’s continued dissatisfaction with Gonzalez. Likewise, appellant’s April 17, 2003 motion for continuance also shows that he desired a continuance so that his attorney — and not appellant himself — could better prepare for trial, and appellant and his attorney each signed the motion requesting that the jury assess appellant’s punishment. Finally, appellant not only voiced no wish to represent himself at his jury trial, but also did not complain about Gonzalez’s trial performance at any time during the trial.

Because the record shows that appellant affirmatively abandoned his request to proceed pro se, we conclude that appellant waived his right to represent himself. See Funderburg, 717 S.W.2d at 642 (quoting Brown, 665 F.2d at 611). The communications filed with the trial court after appellant requested appointed counsel reflect a continuing desire to proceed to trial represented by counsel and thus underscore appellant’s having abandoned his initial intent to represent himself. As in Funderburg, appellant did not merely acquiesce to the trial court’s decision, but took affirmative steps, by requesting appointment of counsel, to consciously, deliberately, and voluntarily relinquish, and thus waive, his known right to proceed pro se. See id. at 641.

We overrule appellant’s first issue.

Appointment of Substituted Counsel

In his second issue, appellant contends that the trial court erred by not conducting a hearing on appellant’s motion for substituted counsel. His third issue challenges the trial court’s decision to deny that motion.

Once the court has appointed an attorney to represent an indigent defendant, the defendant has been afforded the protections provided under the Sixth and Fourteenth Amendments and Article 26.04 of the Texas Code of Criminal Procedure, regarding counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Ciim.App. [Panel Op.] 1982); Watson v. State, 95 S.W.3d 342, 344 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d); Tex.Code Crim. Proc. Ann. art. 26.04 (Vernon Supp.2004) (“Procedures for Appointing Counsel”). A defendant who is displeased with his appointed counsel must bring the matter to the attention of the trial court and has the burden of proof to show that he is entitled to a change of counsel. Malcom, 628 S.W.2d at 791; Watson, 95 S.W.3d at 344; Garner v. State, 864 S.W.2d 92, 98 (Tex.App.-Houston [1st Dist.] 1993, pet. ref’d). If the defendant makes an adequate showing, certain circumstances, for example, a claim of a conflict of interest, may warrant the trial court’s exercising its discretion to discharge previously appointed counsel and appoint substitute counsel. Garner, 864 S.W.2d at 98-99.

Failure to Hold a Hearing

Appellant’s second issue challenges the trial court’s ruling on appellant’s motion for substituted counsel without conducting a hearing on that motion. Because nothing in the record shows that appellant requested a hearing, appellant did not preserve error. See Malcom, 628 S.W.2d at 792; Tex.R.App. P. 33.1(a)(1); see also Garner, 864 S.W.2d at 100 (noting that trial court not required to hold hearing sua sponte on motion for change of counsel).

We overrule appellant’s second issue.

Failure to Order Substituted Counsel

In his third issue, appellant contends that the trial court erred by not appointing substituted counsel to replace appellant’s trial counsel. We review the trial court’s ruling for abuse of discretion. See Burgess v. State, 816 S.W.2d 424, 428-29 (Tex.Crim.App.1991). An indigent defendant’s right to counsel does not compel the trial court to appoint counsel agreeable to the accused. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App.2000); Garner, 864 S.W.2d at 98. Likewise, the defendant may not manipulate his right to counsel so as to obstruct the orderly procedure in the court or interfere with the fair administration of justice and must, in some circumstances, yield to the general interest of prompt and efficient justice. See King, 29 S.W.3d at 566; Garner, 864 S.W.2d at 98.

Because appellant was not entitled to his personal choice of appointed counsel, he was required to accept the attorney appointed by the trial court unless (1) appellant waived his right to counsel and chose to represent himself or (2) appellant adequately demonstrated why appointment of new counsel was necessary. See Garner, 864 S.W.2d at 98. The first option does not apply, given that appellant requested appointed counsel on April 2, 2003 and acted in conformity with that request thereafter. Accordingly, appellant was required to accept his appointed counsel unless he sufficiently demonstrated an adequate reason to appoint substituted counsel. See id.; see also Burgess, 816 S.W.2d at 428-29 (stating that “eleventh-hour” request for change of counsel by accused who refuses to waive counsel and does not assert right to self-representation requires accused to proceed to trial with existing lawyer).

About a month before the scheduled jury trial was to begin, appellant began complaining repeatedly to the trial court about Gonzalez’s performance in representing appellant. On March 13, 2003, appellant filed his motion to proceed pro se, claiming that he was forced to choose between self-representation and ineffective assistance of counsel. On March 24, 2003, appellant filed a motion for substitute counsel, in which he complained again about Gonzalez’s performance. On March 27, 2003, appellant filed a motion to recuse the trial judge, in which he stated that he was acting “pro se” because he was unable to communicate with Gonzalez. On April 8, 2003, appellant sent a letter to the court in which he requested appointment of substitute counsel to replace Gonzalez and claimed that Gonzalez was providing ineffective assistance. On April 11, 2003, appellant filed a motion to enter the written communications between appellant and Gonzalez into the court record, including seven requests that appellant made to Gonzalez. On April 17, 2003, appellant filed a motion for continuance in which he stated that Gonzalez was inadequately prepared for trial.

Appellant’s complaints generally alleged that (1) communication between appellant and appointed trial counsel had broken down, and counsel did not confer adequately with appellant, (2) counsel did not investigate certain unspecified factual and legal issues, (3) counsel did not permit or facilitate appellant’s participation in his defense by requesting access to the law library, providing copies of case law that appellant requested, or requesting a bail hearing (4) counsel did not pursue appellant’s preferred defense strategy, and (5) counsel filed pretrial motions without appellant’s knowledge.

Appellant contends that the circumstances of this case show that communication had completely broken down with appointed counsel and alternatively contends that the circumstances created an irreconcilable conflict that led to an unjust verdict. Aside from cases from several federal circuit courts that have not been adopted in Texas, appellant relies on only one Texas case, Melendez v. Salinas, 895 S.W.2d 714 (Tex.App.-Corpus Christi 1994, orig. proceeding), in which Melendez, the indigent defendant, had been accused of attempted murder. Id. at 715. The court of appeals conditionally granted mandamus relief to compel the trial court to conduct a hearing on Melendez’s request for substituted counsel because the defendant had demonstrated a “substantial complaint about his appointed counsel’s representation.” Id. The court of appeals reached this conclusion because Melendez demonstrated that the attorney appointed to represent him had conferred with him only briefly and only three times, which totaled only 20 minutes overall, during his 16-month incarceration, and had not properly investigated or provided adequate representation. Id.

Melendez is distinguishable at the outset because its holding required that the trial court conduct a requested hearing, a complaint that we have rejected here because appellant did not request a hearing. See id. More importantly, the egregious facts demonstrated in Melendez are missing here. In contrast to the “substantial complaint” in Melendez, the record before us demonstrates consistent, significant activity by trial counsel on appellant’s behalf. For example, counsel promptly sought discovery after he was appointed, and obtained relief from the trial court equally promptly. In addition, counsel obtained funds to hire an investigator. As well, counsel negotiated favorable plea bargain offers from the State for far less punishment than the jury assessed, despite appellant’s multiple prior convictions. Further, counsel obtained a favorable ruling from the trial court by motion in limine and also sought to suppress appellant’s oral statements by a motion that the trial court carried with appellant’s case. Similarly, counsel complied with appellant’s request to file a motion to quash the enhancements and also requested that appellant not be impeached with his prior convictions. Finally, despite his contrary assertions in his complaints made to the trial court, we note that appellant acknowledged, at a pretrial hearing, having conferred “pretty often” with appointed counsel while in jail. Appellant has not made an adequate showing that the trial court abused its discretion by failing to appoint substitute counsel. The record establishes that counsel met with appellant while in jail, counsel acquired funds for an investigator to assist with the defense, and filed multiple motions to preserve appellant’s rights. Appellant’s complaints about his counsel began only about a month before trial was to begin, but appellant never established that counsel had a conflict of interest, and appellant’s complaints did not rise to a level that would require the trial court to provide substitute counsel. Moreover, appellant’s pretrial complaints about Gonzalez did not continue after trial began. As emphasized above, nothing in the reporter’s record of the trial proceedings shows that appellant complained to the trial court or suggests that appellant was dissatisfied with Gonzalez. After considering the eleventh-hour timing of appellant’s complaints and the substantial and significant contribution and involvement by appointed counsel, we conclude that appellant has not demonstrated that the trial court abused its discretion by refusing to appoint substituted counsel.

We overrule appellant’s third issue.

Conclusion

We affirm the judgment of the trial court.

      . Gonzalez was appointed to represent appellant for the robbery under cause number 897234 and escape under cause number 927459.

      . The record neither reflects why Hinton did not remain as appellant’s counsel, nor shows that Hinton formally withdrew from his representation, but appellant does not complain on appeal about Hinton’s departure as his counsel.

      . The document is marked "refuses to sign” under a form statement that appellant requested appointed counsel and was financially unable to retain appointed counsel.

      . Although the trial court used the term "talk again,” the record does not reflect any previous recorded discourse between the court and appellant concerning appellant’s desire to represent himself. Likewise, the record does not show any previous oral or written motion by which appellant asked to represent himself. Other than the refusal to sign the document requesting counsel when Gonzalez was appointed, the record does not show that appellant was dissatisfied with counsel or wished to represent himself before the December 9, 2002 hearing.

      . Gonzalez appeared on behalf of appellant between December and March to set the case for jury trial in April 2003 and to file motions. During that period, he received funds to hire an investigator, received a favorable ruling on a motion in limine, filed a motion for discovery, and filed a motion to suppress appellant's written statement with a request for a hearing on that motion. Gonzalez later filed a motion to allow the defendant to testify free from impeachment.

      . The charges were reindicted as cause number 944192 for the escape and 944193 for the robbery.

      . The only other correspondence from appellant was filed on April 21, 2003. This was a motion to disqualify the trial court, which was denied.


author: GEORGE C. HANKS, JR., Justice.

text:
    Robert D. CLEMENTS, Jr., Appellant, v. MINNESOTA LIFE INSURANCE COMPANY, Appellee. Minnesota Life Insurance Company, Appellant, v. Robert D. Clements, Jr., Appellee.
    No. 01-03-00464-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 8, 2004.

      Otto D. Hewitt, III, Hewitt Law Firm, Alvin, TX, for Appellant.
    Stephen Dale Howen, Dallas, TX, for Appellee.
    Panel consists of Justices TAFT, HANKS, and HIGLEY.
   OPINION

GEORGE C. HANKS, JR., Justice.

Appellant, Robert D. Clements, Jr. (Clements), sued appellee, Minnesota Life Insurance Company, in an action for the proceeds of his ex-wife’s, Terry T. Clements’s (Terry’s), life insurance policy. Clements sought statutory damages under the Texas Insurance Code, and, among other things, prejudgment interest. In its final judgment, the trial court awarded $158,731.41 from policy funds and $17,900 in remaining funds to Clements and $2,100 to Minnesota Life for attorney’s fees incurred to effectuate its interpleader. The trial court ordered that Clements create a trust fund for Clements’s and Terry’s daughter, Kelse Layne Clements (KLC), contribute to the trust a sum of money each year sufficient to purchase a $500,000, 15-year term life insurance policy for KLC, and pay all premiums on the policy. It also ordered that Clements place $10,000 in the Putnam College Advantage Program for the purpose of assisting KLC with college expenses. It further ordered that Minnesota Life pay $4,000 in ad litem fees.

In two issues, Clements contends that the trial court erred in denying (1) statutory damages against Minnesota Life and (2) Clements’s prejudgment interest. We affirm.

In two issues, Minnesota Life contends that the trial court abused its discretion in (1) denying Minnesota Life attorney’s fees for “the successful defense of an appeal of the final judgment” and (2) assessing ad litem fees against Minnesota Life. We affirm.

Background

On August 31, 1990, Minnesota Life issued a life insurance policy to Terry. The policy named Clements, Terry’s husband at that time, as the primary beneficiary. The policy included an additional agreement which provided for an automatic cost-of-living increase. The automatic increase agreement provided that, if there is an increase in the consumer price index, the face amount of the policy will automatically be increased without the need for evidence of insurability. Any beneficiary designation in effect for the policy at the time of reissuance, due to the automatic cost-of-living agreement, was unaffected. Terry did not change her beneficiary designation at the time of any policy reissuance. In 1991, Terry and Clements divorced. On June 9, 2001, Terry died. At the time of Terry’s death, the policy had a face value of $173,000. On July, 25, 2001, Clements, as the beneficiary, notified Minnesota Life of his claim. Minnesota Life’s policy required payment on receipt of proof of the insured’s death, and, on August 20, 2001, Minnesota Life received such proof.

On September 18, 2001, Clements sued Minnesota Life under article 21.55 of the Texas Insurance Code for statutory damages and to recover the insurance policy proceeds. On September 28, 2001, Minnesota Life offered to tender the policy proceeds into the trial court’s registry. On March 27, 2002, Minnesota Life submitted the funds into the trial court’s registry.

Clements and Minnesota Life both filed summary judgment motions. Clements’s summary judgment motion asserted that he was entitled to the policy proceeds, prejudgment interest, and statutory damages under article 21.55 of the Texas Insurance Code and that the only other “potential claimant” agreed. Minnesota Life’s summary judgment motion responded that Clements was not entitled to prejudgment interest or statutory damages, and Minnesota Life asserted that it was entitled to attorney’s fees for its inter-pleader counterclaim. In its order on both parties’ cross-motions for summary judgment, the trial court took judicial notice of the summary judgment evidence and found that (1) Minnesota Life’s interpleader action was appropriate, (2) Minnesota Life was entitled to recover attorney’s fees associated with its interpleader, (3) Clements was not entitled to recover damages under article 21.55 of the Texas Insurance Code, and (4) Clements was not entitled to recover prejudgment interest or attorney’s fees.

Summary Judgment

Both Clements and Minnesota Life appeal the trial court’s denial of the motions for summary judgment.

Standard of Review

In a traditional summary judgment, the movant bears the burden of proof, and all doubts concerning the existence of a genuine issue of fact must be resolved against the movant. Tex.R. Civ. P. 166a(c); Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex.1982). Once the movant proves a right to a summary judgment, the burden shifts to the nonmovant to present evidence creating genuine issues of material fact. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In a no-evidence summary judgment, the movant may, after sufficient time for discovery, move for summary judgment if there is no evidence to support one or more elements of a claim on which the nonmovant has the burden of proof at trial. Tex.R. Civ. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The motion must state the elements to which there is no evidence and the reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Tex.R. Civ. P. 166a(i).

When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment proof presented by both sides and determine all questions presented. Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 453 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). If we find error, we must render the judgment the trial court should have entered. Agan, 940 S.W.2d at 81.

Clements’s Appeal

Statutory Damages

In his second issue, Clements contends that the trial court abused its discretion in failing to assess statutory damages against Minnesota Life under article 21.55 of the Texas Insurance Code.

To maintain a claim under article 21.55, “a party must establish three elements: (1) a claim under an insurance policy; (2) that the insurer is liable for the claim; and (3) that the insurer has failed to follow one or more sections of article 21.55 with respect to the claim.” Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291 (Tex.2001). If a party satisfies these elements, the insurer shall pay the beneficiary 18 percent per annum of the amount of the claim as damages, in addition to the amount of the claim. Id. Article 21.55, section 3(f) of the Texas Insurance Code provides:

Except as otherwise provided, if an insurer delays payment of a claim following its receipt of all items, statements, and forms reasonably requested and required, as provided under Section 2 of this article, for a period exceeding the period specified in other applicable statutes or, in the absence of any other specified period, for more than 60 days, the insurer shall pay damages and other items as provided for in Section 6 of this article.

Tex. Ins.Code Ann. art. 21.55, § 3 (Vernon Supp.2004). Article 21.55, section six provides:

In all cases where a claim is made pursuant to a policy of insurance and the insurer liable therefore is not in compliance with the requirements of this article, such insurer shall be liable to pay the holder of the policy, or the beneficiary making a claim under the policy, in addition to the amount of the claim, 18 percent per annum of the amount of such claim as damages, together with reasonable attorney[’s] fees. If suit is filed, such attorney[’s] fees shall be taxed as part of the costs in the case.

Tex. Ins.Code Ann. art. 21.55, § 6 (Vernon Supp.2004).

We examine the three Bonner elements for recovery under the facts of this case. First, it is undisputed that Clements made his claim pursuant to an insurance policy. Second, upon receipt of proof of Terry’s death, Minnesota Life was liable for the face value of the policy. However, Clements did not establish the third requisite element, that Minnesota Life violated any section of article 21.55 by not paying Clements’s claim.

The trial court found that Minnesota Life complied with the requirements of article 21.55, thus releasing Minnesota Life from paying damages. Specifically, the trial court found that Minnesota Life (1) was faced with conflicting claims to the life insurance policy proceeds, (2) promptly and in good faith admitted its liability to pay the proceeds, and (3) filed its inter-pleader action and tendered the funds into the registry of the trial court. In arriving at its conclusion, the trial court stated that it considered that Minnesota Life’s inter-pleader action complied with the “safe harbor” afforded by section 9.301(c) of the Texas Family Code. We agree.

A stakeholder may interplead funds when it is the subject of conflicting claims such that it is or may be exposed to double or multiple liability. See Tex.R. Civ. P. 43; Cable Communications Network, Inc. v. Aetna Cas. & Sur. Co., 838 S.W.2d 947, 950 (Tex.App.-Houston [14th Dist.] 1992, no writ). The purpose of in-terpleader is to allow an innocent stakeholder facing rival claims to let the courts decide who is entitled to the funds and, thus, avoid the peril of acting as judge and jury itself. Olmos, 857 S.W.2d at 741. A petitioner in interpleader must prove that he (1) is subject to, or has reasonable grounds to anticipate, rival claims to the same funds; (2) has not unreasonably delayed in filing the interpleader action; and (3) has unconditionally tendered the funds into the registry of the trial court. Id. A party faced with competing claims obtains a discharge of liability to the competing claimants by interpleading the funds. Citizens Nat’l Bank of Emporia v. Socony Mobil Oil Co., Inc., 372 S.W.2d 718, 722 (Tex.Civ.App.-Amarillo 1963, writ ref’d n.r.e.).

In its “Amended Order on Parties’ Cross-Motions for Summary Judgment,” the trial court found that Minnesota Life’s interpleader action was appropriate and specifically found that Minnesota Life (1) was subject to, or had reasonable grounds to anticipate, rival claims to the life insurance policy proceeds; (2) did not unreasonably delay in filing the interpleader action; and (3) had unconditionally tendered the policy proceeds into the trial court. We agree.

The record establishes that Minnesota Life met the elements of a proper interpleader. See Olmos, 857 S.W.2d at 741. First, considering that Clements and Terry were divorced at the time of Terry’s death, Minnesota Life had reasonable grounds to anticipate rival claims to the proceeds. Second, Minnesota Life did not delay unreasonably. On July, 25, 2001, Minnesota Life had formal notice of Clements’s claim. On August 16, 2001, Minnesota Life informed Clements that, because there was a potential for a conflicting claim regarding the interpretation of section 9.301 of the Texas Family Code, its policy required filing an interpleader action. On September 28, 2001, Minnesota Life filed its interpleader. Accordingly, we hold that the trial court did not err when it found that Minnesota Life did not unreasonably delay. Third, in filing its inter-pleader action, Minnesota Life unconditionally tendered funds in the trial court’s registry and disclaimed any interest in the proceeds. Accordingly, we hold that the trial court did not err in finding that Minnesota Life complied with the requirements of article 21.55.

In support of his argument that such a damage award is mandatory in this case, Clements relies on Marineau v. Gen. Am. Life Ins. Co., 898 S.W.2d 397 (Tex.App.-Fort Worth 1995, writ denied). However, Marineau is easily distinguishable. Marineau held that an insurer’s good faith effort in denying a claim, by itself, was not a defense to the action of the statute. Id. at 404. Here, Minnesota Life did not deny its liability. Further, Marineau did not involve an interpleader action. Thus, the trial court did not abuse its discretion in denying Clements article 21.55 damages.

We overrule Clements’s second issue.

Prejudgment Interest

In his first issue, Clements contends that the trial court erred in denying his request for prejudgment interest. Clements asserts that, either under section 302.002 of the Texas Finance Code or pursuant to equitable principles, the trial court was mandated to award prejudgment interest. Clements argues that the trial court incorrectly relied on Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1949), in its decision, and it gave no consideration to the Texas Finance Code or to principles of equity when it refused to grant prejudgment interest. We disagree.

We review a challenge to a trial court’s decision regarding prejudgment interest using an abuse-of-discretion standard, giving limited deference to the trial court’s application of the law to the facts. Purcell Constr., Inc. v. Welch, 17 S.W.3d 398, 402 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Under this standard, we will not disturb a trial court’s findings on factual issues unless the trial court reasonably could have reached only one decision and it failed to do so. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). However, “a trial court has no discretion in determining what the law is or applying the law to the facts.” Id. at 840.

A trial court “is permitted, but not required, to award prejudgment interest under the authority of a statute ... or under an equitable theory or both.” Lar con Petroleum, Inc. v. Autotronic Sys., Inc., 576 S.W.2d 873, 879 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ); see also Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.1998) (stating that two legal sources for an award of prejudgment interest include general principles of equity and an enabling statute).

Here, we cannot say that the trial court abused its discretion by not awarding prejudgment interest to Clements under the Texas Finance Code section 302.002. Section 302.002 does not mandate an award of prejudgment interest where, as here, a party does not prevail on a breach of contract cause of action or on any cause of action it has asserted. See Tex. Fin.Code Ann. § 302.002. Likewise, we cannot hold that, under the facts of this case, the trial court abused its discretion in not awarding prejudgment interest to Clements under equitable principles. As explained above, the trial court correctly found that, based on article 21.55 of the Texas Insurance Code, Clements was not entitled to recover for his claim for damages. Accordingly, Clements brought an unmeritorious insurance code violation claim against Minnesota Life. Thus, Clements has not shown entitlement to prejudgment interest.

Finally, we hold that, in support of its decision not to award prejudgment interest to Clements, the trial court correctly relied on the holding in Greer. Greer involved an interpleader action in a suit for insurance proceeds where the complainant had intentionally killed her husband. 221 S.W.2d at 858. The Supreme Court held that the insurer had appropriately interplead the funds, and the Court refused to award, under a predecessor statute to article 21.55 of the Texas Insurance Code, attorney’s fees, statutory penalties, or interest against the insurer. Id. at 861.

Clements asserts that Greer is inapplicable to the facts here because Greer involved the predecessor statute to article 21.55 of the Texas Insurance Code. The rationale behind its holding is applicable here: where an insurer timely interpleads disputed funds and is found to have acted lawfully, the insured should not be rewarded with attorney’s fees and interest for bringing an unmeritorious claim for insurance code violations against the insurer. Accordingly, we hold that the trial court did not abuse its discretion when it denied Clements’s motion for summary judgment seeking prejudgment interest.

We overrule Clements’s first issue.

Minnesota Life’s Appeal

Attorney’s Fees

In its first issue, Minnesota Life contends that the trial court abused its discretion in denying Minnesota Life attorney’s fees “for the successful defense of an appeal of the final judgment.” Minnesota Life argues that, because the trial court decided, within its discretion, to award attorney’s fees for filing the interpleader, it abused its discretion by not awarding attorney’s fees for Minnesota Life’s appeal. We disagree.

We review a trial court’s award of appellate attorney’s fees under the abuse-of-discretion standard. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The trial court may, in its discretion, allow a fee to the attorney for an appeal; it is not required to do so. See Schwartz v. Jacob, 394 S.W.2d 15, 20-21 (Tex.Civ.App.-Houston, [1st Dist.] 1965, writ ref’d n.r.e.). Here, pursuant to its equitable powers, the trial court awarded attorney’s fees for Minnesota Life’s inter-pleader. See Northshore Bank v. Commercial Credit Corp., 668 S.W.2d 787, 790 (Tex.App. Houston-[14th Dist.] 1984, writ, ref’d n.r.e.) (holding that an interpleader is an equitable proceeding). Given the trial court’s analysis of the relationship between and conduct of the parties in this case, the trial court did not abuse its discretion in exercising its equitable powers to deny appellate attorney’s fees to Minnesota Life. Accordingly, we overrule Minnesota Life’s first issue.

Ad Litem Fees

In its second issue, Minnesota Life contends that the trial court abused its discretion when it assessed ad litem fees against Minnesota Life.

The record reflects that, before this appeal, Minnesota Life did not object to the trial court’s award of ad litem fees. Accordingly, Minnesota Life failed to preserve error on this issue. See Tex.R.App. P. 33.1(a); Schlafly v. Schlafly, 33 S.W.3d 863, 868 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (When there is no objection to or “motion filed aimed at the purported errors in awarding ad litem fees,” there is no error preserved for appeal.).

We overrule Minnesota Life’s second issue.

Conclusion

We affirm the judgment of the trial court.

      . An interpleader is a suit to determine a right to properly held by a disinterested third party who is in doubt about ownership and who, therefore, deposits the property with the trial court to permit interested parties to litigate ownership. Olmos v. Pecan Grove Mun. Util. Dist., 857 S.W.2d 734, 741 (Tex.App.-Houston [14th Dist.] 1993, no writ).

      . According to Clements, on April 8, 2002, Minnesota Life paid the funds in the trial court’s registry. However, he does not direct us to a record cite. Minnesota Life contends in its brief that, on March 27, 2002, it paid the funds into the trial court’s registry. The only record support we find for the exact date is in Minnesota Life’s summary judgment motion, which complies with the date in its brief.

      . The "potential claimant” Clements referred to is Dorothy Tubb, KLC's maternal grandmother.

      . Both Clements and KLC asserted claims.

      . The record establishes that Minnesota Life interpleaded not only the policy amount in dispute but also an additional sum to cover what it anticipated, under the contractual terms of the policy, would be prejudgment interest.

      . Section 9.301(a) of the Texas Family Code provides that, if a divorce is rendered after an insured has designated the insured's spouse as a beneficiary under a life insurance policy in force at the time of rendition, that beneficiary designation is not effective unless (1) the decree designates the insured's former spouse as beneficiary; (2) the insured redesignates the former spouse as the beneficiary; or (3) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse. Tex Fam.Code Ann. § 9.301(a) (Vernon Supp.2004).
      Section 9.301(c) provides;
      An insurer who pays the proceeds of a life insurance policy issued by the insurer to the beneficiary under a designation that is not effective under Subsection (a) is liable for payment of the proceeds to the person or estate provided by Subsection (b) only if; (1) before payment of the proceeds to the designated beneficiary, the insurer receives written notice at the home office of the insurer from an interested person that the designation is not effective under Subsection (a); and (2) the insurer has not inter-pleaded the proceeds into the registry of a court of competent jurisdiction in accordance with the Texas Rules of Civil Procedure.
      Tex. Fam.Code Ann. § 9.301(c) (Vernon Supp. 2004).

      . Texas Finance Code, section 302.002, upon which Clements relies, provides as follows:
      If a creditor has not agreed with an obligor to charge the obligor any interest, the creditor may charge and receive from the obli-gor legal interest at the rate of six percent a year on the principal amount of the credit extended beginning on the 30th day after the date on which the amount is due. If an obligor has agreed to pay to a creditor any compensation that constitutes interest, the obligor is considered to have agreed on the rate produced by the amount of that interest, regardless of whether that rate is stated in the agreement.
      Tex. Fin.Code Ann. § 302.002 (Vernon Supp.2004).