Burks v. State

• Court: Texas Court of Appeals
• Writing for the Court: HUGHES
• Citation: Burks v. State, 792 S.W.2d 835 (Tex. App. 1990)
• Decision Date: 05 July 1990
• Docket Number: Nos. 01-89-01145-C,01-89-01146-CR,s. 01-89-01145-C
• Parties: James A. BURKS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)

Page 835

792 S.W.2d 835

James A. BURKS, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-89-01145-CR, 01-89-01146-CR.

Court of Appeals of Texas Houston (1st Dist.).

July 5, 1990.

Discretionary Review Refused

Sept. 19, 1990.

John F. Carrigan, Houston, for appellant.

John B. Holmes, Dist. Atty., Carol Cameron and Calvin Hartmann, Asst. Dist. Attys., for appellee.

Before HUGHES, WARREN and DUGGAN, JJ.

OPINION

HUGHES, Justice.

Appellant was charged with aggravated assault and burglary of a building. ¹ Appellant's counsel entered not guilty pleas before a jury on his client's behalf. The jury found appellant guilty of both charges and assessed punishment at 30 years confinement for the burglary, and five years confinement and a $5,000 fine for the aggravated assault.

Appellant does not challenge the evidentiary sufficiency of his conviction and we will not review the facts at length. In summary, appellant burglarized a supply company and was confronted by a security guard who attempted to apprehend him. After a struggle in which appellant turned the security guard's gun on him, a Houston police officer intervened and apprehended appellant.

Appellant raises nine points of error.

Point one contends that the court abused its discretion in expelling appellant from the courtroom, because the expulsion "deprived [appellant] of his confrontation and cross examination rights" under the federal and state constitutions, and the court did not "consider alternative measures available under the circumstances" and did not "clearly articulate on the record why less drastic measures would not have sufficed."

Point one is based on these events:

COURT: [To appellant] At this point [the opening of voir dire] then, I want you to be quiet, okay? Anything you got to say, say it through your counsel. I don't want you to disturb this court.

APPELLANT: My counsel is not on trial.

C: You want me to gag you?

A: I don't care what you do. I really don't because I have a writ of habeas corpus for the last seven months that you refuse to give me a hearing on, trying to railroad me and take me to trial, and that's not going to work.

C: You're going to trial.

A: No, I'm not going to trial without a hearing on writ of habeas corpus. You can hold me back in the holding cell and hold it without me.

C: That's what I can do.

A: I know you sure can do that bullsh-- you're talking about.

C: Mr. Bailiff!

A: That's right, motherf-----, you people, f--- you people. I done told you f--- this bullsh--!

Appellant was removed from the courtroom, but was returned for trial on condition of good behavior. When the court stood ready to accept the plea:

COURT: To the indictment, James A. Burks, how do you plead, guilty or not guilty?

A: (No response).

C: You refuse?

A: I refuse anything.

C: Okay.

A: My attorney can't speak for me because he's not my attorney. I don't want him to speak for me.

APPELLANT'S COUNSEL: Not guilty.

A: He can't represent me. I don't want him.

C: How do you plead?

A: I plead not guilty to everything. [I'm] sick of this bullsh--.

COUNSEL: In the name ...

A: Who you-all afraid of? Who runs this courtroom? I'm trying to get some legal rights in here.

C: Be quiet.

A: I don't have to be quiet, you're screwing me. I can't be quiet. You doing me like this, I'm not an animal, I'm a human being. People doing me like you're doing, such justifying this [sic].

C: Yeah.

A: That's not right, that's wrong. Let me out.

C: You stand quiet.

A: I don't want to hear this sh--.

C: Stand over here.

A: You keep letting people f--- over me and doing nothing.

C: I'm telling you to keep quiet. That's right.

A: Sick bastard.

C: Read the indictment to him.

Because appellant was continuously nonresponsive and disruptive, the court ordered him returned to his cell and the trial proceeded without him. He was once more returned to the courtroom, but was again removed when he was disruptive.

Appellant initially complains that his expulsion violated his federal and state constitutional rights, including the rights of free speech and the right to be present in the courtroom during his own trial. We disagree. In Illinois v. Allen, the United States Supreme Court held that a criminal defendant may lose his constitutional right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nonetheless "insists in conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on within the courtroom." 397 U.S. 337, 342-43, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970). As Justice Black noted,

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.

Id. (see further Brennan, J., concurring); Sanchez v. State, 702 S.W.2d 258, 259 (Tex.App.--Dallas 1986, pet. ref'd) (citing Allen as controlling). As the Court held in Allen, behavior of "an extreme and aggravated nature" warrants a defendant's expulsion from a courtroom and is not violative of federal constitutional rights. 397 U.S. at 343, 90 S.Ct. at 1060. We find no cases that extend Texas constitutional guarantees regarding a criminal defendant's right to be present in a courtroom during trial beyond those found in the federal constitution. See, e.g., Sanchez, 702 S.W.2d at 259 (applying Allen analysis to TEX. CONST. art. I, § 10 challenge). Accordingly, appellant's expulsion was not constitutionally improper.

Appellant further contends that his expulsion was improper because the judge did not consider "alternative measures under the circumstances" or "clearly articulat[e] on the record why less drastic measures would not have sufficed." We disagree. First, as held in Allen, a trial judge has "sufficient discretion" to deal with such situations--no single procedure is universally appropriate. 397 U.S. at 343, 90 S.Ct. at 1060. Here, the judge removed the defendant from the voir dire proceedings, and allowed him to return so long as his conduct conformed with acceptable standards of behavior. When he returned, his misconduct persisted and he was again removed. Appellant was returned to the courtroom a third time, and his conduct forced his expulsion. We find that the judge's approach was well within his discretion as outlined by Allen. Moreover, the "alternative method" urged by appellant and mentioned by the Allen Court, gagging, would have prevented appellant from cross-examining State witnesses--the crux of his complaint regarding his expulsion.

The trial court did not abuse its discretion in expelling appellant; point of error one is overruled.

In point of error two, appellant complains that "the trial court erred in refusing to sustain [his] objection to being represented by appointed counsel." Appellant admits that he "did not demand to proceed pro se" and he does not complain that he was denied the right to represent himself. Instead, he complains that counsel "was forced upon him." Appellant's complaint is based on his remark in the colloquy described above, "My attorney can't speak for me because he's not my attorney. I don't want him to speak for me."

An accused does not have the right to choose appointed counsel, and unless he waives his right to counsel and chooses to represent himself, or shows adequate reasons for the appointment of new counsel, he must accept court-appointed counsel. Thomas v. State, 550 S.W.2d 64 (Tex.Crim.App.1977); Aguilar v. State, 651 S.W.2d 822, 823 (Tex.App.--Houston [1st Dist.] 1983, no pet.). Here, appellant's remarks are not sufficient to constitute a waiver of counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (waiver must be a voluntary, intelligent relinquishment of known rights, following cautioning by court). Appellant's outburst does not indicate that he wished to proceed pro se, or reflect that appellant wanted (let alone demonstrated a need for) a new lawyer. The court did not err in allowing court-appointed counsel to continue his representation of appellant. Point of error two is overruled.

In points of error three and four, appellant complains that his expulsion from the courtroom "denied him his constitutional right to testify" under the federal and state constitutions. U.S. CONST. amends. VI & XIV; TEX. CONST. art. I, § 10.

Appellant was absent from the courtroom during the State's case, having been removed for unruliness. When the State rested, appellant's lawyer approached the bench and had an off-the-record discussion with the judge, after which he unsuccessfully moved for an instructed verdict of acquittal. He then rested. The record is silent about appellant's intent to testify on his own behalf. A criminal defendant has an absolute right to testify on his own behalf. U.S. CONST. amends. VI & XIV; TEX. CONST. art. I, § 10. Here, a lawyer presented a case without including the accused's testimony. The record does not indicate that the court denied appellant the right to testify, or even that appellant wanted to testify. Appellant's lawyer did not object to the lack of appellant's testimony, or request that provisions be made for him to testify, and so waived any complaint on appeal. See TEX.R.APP.P. 52(a). Appellant has not challenged the effectiveness of counsel's trial performance. We overrule points of error three and four.

In point of error five, appellant complains that his trial contains harmful and reversible Rose error.

The jury was instructed on parole, pardon, and good conduct time in accordance with article 37.07 of the Code of Criminal Procedure. See TEX.CODE CRIM.PROC.ANN. art....