Calamaco v. State

• Decision Date: 09 April 2015
• Docket Number: No. 11–13–00066–CR,11–13–00066–CR
• Citation: 462 S.W.3d 587
• Parties: Danny Calamaco, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

462 S.W.3d 587

Danny Calamaco, Appellant

v.The State of Texas, Appellee

No. 11–13–00066–CR

Court of Appeals of Texas, Eastland.

Opinion filed April 9, 2015

Discretionary Review Refused October 14, 2015

Paul W. Hanneman, Sweetwater, TX, for appellant.

James Eidson, District Attorney, Patficia Dyer, Assistant, Abilene, TX, for appellee.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

OPINION

JIM R. WRIGHT, CHIEF JUSTICE

The jury convicted Danny Calamaco of murder. The trial court found two enhancement paragraphs to be true and assessed Appellant's punishment at confinement for life. See Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). We affirm.

Appellant presents three issues on appeal. In his first issue, Appellant contends that the trial court denied him his right to counsel during voir dire. Appellant asserts in his second issue that he was denied effective assistance of counsel. And, in his third issue, Appellant argues that the trial court denied him the right to a fair trial, as well as his right to be presumed innocent, when the court compelled him to stand trial before a jury while he was dressed in jail attire.

Although Appellant has not challenged the sufficiency of the evidence, we will briefly outline the evidence presented to the jury. On the date of the murder, the victim, Steven McCain, received several text messages from “Danny D.” Apparently, McCain owed Appellant $10 for drugs. McCain's girlfriend, Teresa Ward, was with McCain, and she saw the texts. She testified that the “Danny D” in the texts was Appellant. The text messages were introduced into evidence. In the messages, Appellant told McCain: “It ain't about the bread. It's about principle. You think I'm a ho. You think you can do what you want to me with me, rape me, f—k me.” McCain asked Ward if she had any money. She did not give him any money because she knew that he was going to take the money to Appellant, and she did not approve of his use of methamphetamine. McCain told Ward that he had to go “handle his business,” and he left in Ward's van.

Anthony Sanchez stopped in front of Appellant's house. Sanchez had stopped so that he could get something out of the trunk of his car. McCain drove up behind him, got out of the van that he was driving, and started walking toward the house. A person who Sanchez believed to be Appellant came out of the house. He saw Appellant and McCain approach each other in the front yard. As they got close to each other, Appellant shot McCain. Sanchez drove away. Sanchez later returned and told police what he had seen. McCain was taken to the hospital, but he died on his way to surgery; the cause of death was a gunshot wound to the chest.

The police searched the area in the front yard where the shooting took place. They found several nine-millimeter shell casings, a lighter, and a ten-dollar bill. Appellant was subsequently arrested, indicted, tried, and convicted for the murder. This appeal follows that conviction.

We will first address Appellant's argument that the trial court denied Appellant his right to have counsel during voir dire. Voir dire is a critical stage of a criminal prosecution at which the right to counsel attaches. Eason v. State, 563 S.W.2d 945, 947 (Tex.Crim.App. [Panel Op.] 1978). An accused may waive his right to counsel; however, the waiver must be made voluntarily, knowingly, and intelligently. Webb v. State, 533 S.W.2d 780, 785 (Tex.Crim.App.1976). An accused also has an independent right to self-representation. Faretta v. California, 422 U.S. 806, 821, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; Webb, 533 S.W.2d at 783. The right to self-representation does not attach until it has been clearly and unequivocally asserted. Funderburg v. State, 717 S.W.2d 637, 642 (Tex.Crim.App.1986) (citing Faretta, 422 U.S. at 835, 95 S.Ct. 2525 ). Once a defendant has invoked his right to self-representation, the court must admonish the defendant as to the “dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Webb, 533 S.W.2d at 785 (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525 ) (internal quotation mark omitted).

In advance of trial, the trial court appointed counsel to represent Appellant. However, on the morning of the trial, and before the voir dire examination began, Appellant told the trial court that he was not happy with his lawyer and that he wanted to represent himself. He advised the court that he had made the decision to represent himself four months prior to trial. The trial court questioned Appellant about why he wanted to represent himself; questioned him about his education, work experience, and ability to read and write; and asked whether he was currently taking any medications or had any mental condition. The trial court also admonished Appellant as to the dangers and disadvantages of representing himself. Appellant does not challenge the adequacy of those admonishments.

Although Appellant acknowledges that he waived his right to counsel, he asserts that his waiver was not made knowingly and intelligently. Specifically, he alleges that his initial waiver of his right to counsel was based on the trial court's misrepresentation or misstatement of the law that he could, at any time, change his mind about self-representation. Thus, he claims, as a result of the erroneous instruction, his initial waiver of his right to counsel was not made knowingly and intelligently.

When Appellant told the trial court that he wanted to represent himself, the trial court admonished Appellant in accordance with Faretta. The trial court additionally told Appellant: “I mean, if you were to start to represent yourself you could say, well, this is going not like I thought it would. It's harder than I thought it would be. I want to change my mind and tell the Judge and let Mr. Sherrod start representing me.” The trial court then asked Appellant: “You understand that?” The trial court also informed Appellant that his court-appointed trial counsel was going to stay in court with him, “[s]o that you can ask a question of him if you needed it, okay?” The trial court further told Appellant: “Now, listen, I told you you could change your mind. So be sure and tell me. Don't just sit there and suffer. It's not necessary. Okay? Because you're going to be missing a lot of things.” The trial court then reminded Appellant: “And you've never done a voir dire and you don't even know what to say to them.” After the trial court made those comments, it told Appellant that it was allowing him to represent himself.

The State then proceeded with its voir dire of the jury panel. After the State had completed its voir dire, and after Appellant had questioned the jury panel about various things—some of which the trial court did not allow—Appellant attempted to ask the jury panel whether anyone had been involved in or knew someone who had been involved in a DWI case. The trial court told Appellant that he could not ask whether someone had a DWI because it was not relevant to the case. At that point, Appellant told the trial court that he wanted “to remove my motion to represent myself and ask for Mr. Sherrod's representation” and that he wanted Sherrod to finish the voir dire. The State requested the trial court's permission to approach the bench. After an unreported bench conference, the trial court informed Appellant that he needed to finish the voir dire: “You elected to do this voir dire. I can't—ordinarily, see, you don't get to go up there at all, your lawyer does that. But now you want to do both and I can't let you do both.” The trial court then told Appellant: “So if you want—you said you wanted to do the voir dire, so you go do your voir dire and after you finish that if you want Mr. Sherrod to take over, he can take over. But you need to finish the voir dire.”

We do not have the benefit of a record of what transpired during the bench conference. The State contends that the trial court might have decided that Appellant was not entitled to hybrid representation during voir dire. The State argues that Appellant did not have an absolute right to hybrid representation and that whether the trial court erred when it denied Appellant hybrid representation should be reviewed for an abuse of discretion.See Scarbrough v. State, 777 S.W.2d 83, 92–93 (Tex.Crim.App.1989) (although a defendant does not have an absolute right to hybrid representation, a trial court may permit hybrid representation in its discretion and should decide whether to permit it at the “earliest practicable moment”).

Although we do not know what transpired at the bench, we do know that the trial court had previously correctly told Appellant, “Now listen, I told you you could change your mind. So be sure and tell me. Don't just sit there and suffer. It's not necessary. Okay?” We also know that, after the unreported bench conference requested by the State, the trial court would not allow Appellant to change his mind, mid voir dire, about self-representation. We can see from the exchange between the trial court and Appellant that the trial court indicated to Appellant that he could change his mind about self-representation, even during the voir dire examination of the jury panel. That was not an erroneous instruction.

Article 1.051(h) of the Texas Code of Criminal Procedure provides that “[a] defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.” Tex. Code Crim. Proc. Ann. art. 1.051(h) (West Supp.2014). Even in the absence of Article 1.051(h), courts have held that a defendant could rescind a waiver of his right to counsel or withdraw an assertion of his right to self-representation. See, e.g., Funderburg, 717 S.W.2d at 642. Accordingly, the trial court did not incorrectly advise Appellant that he could...