Curry v. State
| Decision Date | 06 March 2014 |
| Docket Number | No. 07-11-00425-CR,07-11-00425-CR |
| Court | Texas Court of Appeals |
| Parties | CARL WADE CURRY, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
On Appeal from the 46th District Court
Hardeman County, Texas
Trial Court No. 4157, Honorable Dan Mike Bird, Presiding
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Through eleven issues, appellant Carl Wade Curry appeals his conviction for theft of property valued at $200,000 or more,1 and the resulting sentence of ninety-nine years' confinement in prison. We will affirm.
Background
Evidence at trial showed in February 2010 appellant contacted Mississippi cattleman David Sanders concerning the purchase of cattle. When he telephoned Sanders, appellant did not use his real name, instead identifying himself to Sanders as "Earnest Jackson." Appellant later explained he did so because he feared Sanders would not do business with him because of "blemishes" on his reputation. Through their telephone conversations, appellant ordered four truckloads of cattle, which Sanders shipped to pens appellant used in Hardeman County. Value of the cattle exceeded $200,000.
The sales invoices required payment for the cattle at the time of delivery. But appellant did not make payment. He shipped the cattle to two Kansas feedlots. He received a check for a percentage of the value of one load of the cattle but payment on the check was stopped after it was discovered Sanders had not been paid. Sanders eventually arranged for the feedlots to complete feeding the cattle for his account.
Appellant was arrested and indicted for the charged offense. Although not a lawyer, appellant chose to represent himself at trial. The court appointed standby counsel. Appellant was convicted and sentence imposed as noted. This appeal followed.
Analysis
Legal Representation at Trial and on Appeal Through his first and second issues, appellant maintains his court-appointed standby counsel rendered ineffective assistance at trial, denying him the right of effective assistance of counsel guaranteed by the United States and Texas Constitutions.2 In particular, appellant argues standby counsel failed to assist him in stating a proper objection to the admission into evidence of appellant's written statement and failed to assist him in moving for a continuance.
In standby representation, the defendant presents his own case with the advice and counsel of an attorney. Smith v. Smith, 22 S.W.3d 140, 152 (Tex. App.—Houston [14th Dist.] 2000) (citing United States v. Sacco, 563 F.2d 552, 554 (2d Cir. 1977) (). For a defendant who chooses to exercise his right to represent himself at trial, there is no constitutional right to standby counsel. See Dunn v. State, 819 S.W.2d 510, 525-26 (Tex. Crim. App. 1991); Scarbrough v. State, 777 S.W.2d 83, 93 (Tex. Crim. App. 1989). A fortiori a defendant acting pro se has no constitutional right to the effective assistance of standby counsel. See, e.g., United States v. Oliver, 630 F.3d 397, 413-14 (5th Cir. 2011) (); United States v. Hills, 425 Fed. Appx. 292, 296-97 (5th Cir. 2011) (per curiam); United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998); United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992) ().3
Further, even assuming appellant enjoyed a constitutional right to the effective assistance of standby counsel, this record does not establish counsel rendered ineffective assistance. To prevail on this issue, appellant must demonstrate by a preponderance of the evidence that standby counsel's performance fell below an objective standard of reasonableness, and there is a reasonable probability that, but for standby counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. Appellant does not direct us to any portion of the record, nor do we find any evidence, demonstrating conduct by standby counsel that rises to the requisite level of ineffectiveness. Further, he does not explain how different actions by standby counsel would have led to a different result. Appellant's first and second issues are overruled.
Through his seventh and eighth issues, appellant asserts the trial court abused its discretion and reversibly erred by appointing him counsel on appeal, denying him the right of self-representation on appeal under the United States and Texas Constitutions.
The appeal in this court began with appellant appearing pro se. As the deadline for filing his brief approached appellant requested, and was granted, an extension of time to file his brief. The day before his brief was due under the extension, appellant requested another extension. We then abated and remanded the case to the trial court, directing it to determine, inter alia, "whether allowing [appellant to represent himself on appeal was] in his best interest, the State's best interest, and is in furtherance of the proper administration of justice." Our abatement order also provided that if the trial court recommended self-representation, we would review the recommendation and issue further orders on reinstatement of the appeal. Curry v. State, No. 07-11-00425-CR, 2012 Tex. App. LEXIS 2586, at *4-5 (Tex. App.—Amarillo Mar. 30, 2012) ().
On remand, the trial court conducted a hearing and during the proceeding the judge stated to appellant:
I had the opportunity to observe you represent yourself [at trial]. . . . And while you did demonstrate some knowledge with respect to be able to represent yourself, you were inadequate in that regard. You did what you wanted to do, but the Court believes that with respect to you representing yourself, it would not be in your best interest, it would not be in the State's best interest and is not in furtherance of the proper administration of justice.
Before concluding the hearing the trial court appointed appellant's present counsel on appeal.
We disagree with appellant's premise that he possesses a constitutional right to represent himself on appeal. See Bibbs v. State, No. 07-10-00300-CR, 2011 Tex. App. Lexis 9490, at *3-4 (Tex. App.—Amarillo Dec. 2, 2011) () ( the Supreme Court has found no right of self-representation on appeal under the United States Constitution, no Texas court has recognized a state constitutional right to self-representation on direct appeal, and the Texas Code of Criminal Procedure provides no such right). However, as we explained in Bibbs, 2011 Tex. App. LEXIS 9490 at *4, and in the order abating and remanding appellant's case, 2012 Tex. App. LEXIS 2586, at *3, the appellate court may in its discretion authorize a party's self-representation on appeal. The exercise of this discretion is case-specific and takes into account the best interest of the appellant, the State, and the administration of justice. Here, the trial court presided over the trial during which appellant presented his own defense, and was well situated to determine appellant's aptitude for self-representation on appeal. We see no abuse of discretion in its findings regarding self-representation, or in its appointment of counsel for appellant on appeal. Appellant's seventh and eighth issues are overruled.
By his ninth and tenth issues, appellant asserts that during trial and on appeal he was denied access to "a reasonably sufficient law library and sources," in derogation of a protection afforded by the United States and Texas Constitutions.4 Appellant is represented by court-appointed counsel on appeal so we dismiss as moot that portion of the issue pertaining to the case on appeal. Cf. Burgett v. State, No. 02-05-00377-CR, 2006 Tex. App. Lexis 10492, at *17 (Tex. App.—Fort Worth Dec. 7, 2006, pet. refused) () ( as moot question of defendant's denial of access to a law library because at the time of his guilty plea he was represented by court-appointed counsel).
The fundamental constitutional right of access to the courts requires prison authorities to assist prisoners with preparing and filing meaningful legal papers by providing adequate law libraries or adequate assistance by persons trained in the law. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), overruled on other grounds by Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In the trial court, appellant first was represented by an attorney as counsel of record, and then had the assistance of standby counsel. His entitlement to assistance was thus satisfied by the assistance of a person trained in the law. Under those circumstances, appellant had no additional right of access to a law library. See Bright v. State, 585 S.W.2d 739, 744 (Tex. Crim. App. [Panel Op.] 1979) ( ). Appellant's tenth issue is overruled.
Sufficiency of the Evidence
Admission of Appellant's Statement
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