Dolph v. State

• Decision Date: 20 December 2013
• Docket Number: No. 06–13–00029–CR.,06–13–00029–CR.
• Citation: 440 S.W.3d 898
• Parties: Mark DOLPH, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

440 S.W.3d 898

Mark DOLPH, Appellant

v.The STATE of Texas, Appellee.

No. 06–13–00029–CR.

Court of Appeals of Texas, Texarkana.

Submitted: Dec. 4, 2013.

Decided: Dec. 20, 2013.

Discretionary Review Refused March 19, 2014.

Justin Smith, Norton & Wood, LLP, Texarkana, TX, for Appellant.

Samantha J. Oglesby, Lauren Sutton, Asst. Dist. Attys., Texarkana, TX, for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

Mark Dolph, who chose to represent himself for a portion of his trial during the guilt/innocence phase, was convicted by a jury for unlawful possession of a firearm by a felon, sentenced to fifty-eight years' imprisonment, and ordered to pay a $10,000.00 fine.¹ On appeal, Dolph argues that the trial court erred in finding his waiver of counsel and election to represent himself to be knowing, voluntary, and intelligent because the court “failed to admonish him regarding the nature of the charge, the statutory offense included within it, the range of allowable punishment, the possible defenses to the charges and any mitigating circumstances.” After reviewing the trial, we find that Dolph was sufficiently admonished in accordance with Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We find that Dolph waived his right to counsel with full knowledge of the proceedings. Further, he was assisted by counsel during the proceedings at all times. We reform the judgment to delete the assessment of a fine. Otherwise, we affirm the trial court's judgment.

I. Dolph's Invocation of the Right of Self–Representation Was Made Competently, Knowingly and Intelligently, and Voluntarily

“The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” Id. at 807, 95 S.Ct. 2525. “Those amendments also guarantee that any such defendant may dispense with counsel and make his own defense.” Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997) (citing Faretta, 422 U.S. at 818–20, 95 S.Ct. 2525 ); see Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (“[T]he Constitution does not force a lawyer upon a defendant.”).

“When an accused manages his own defense, he relinquishes ... many of the traditional benefits associated with the right to counsel.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. These rights must be waived “(1) competently,^{[ 2 ]} (2) knowingly and intelligently, and (3) voluntarily.” Collier, 959 S.W.2d at 625 (citing Godinez v. Moran, 509 U.S. 389, 400–01, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) ; Faretta, 422 U.S. at 834–36, 95 S.Ct. 2525 ). “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of 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.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams, 317 U.S. at 279 ); see Collier, 959 S.W.2d at 625. “The decision is made ‘voluntarily’ if it is uncoerced.”³ Collier, 959 S.W.2d at 625 (citing Godinez, 509 U.S. at 401, 113 S.Ct. 2680 ).

A trial court need not follow a “formulaic questioning” or particular “script” to assure itself that an accused who has asserted his or her right to self-representation does so with “eyes open.” Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App.1991). Yet, from Faretta, we gather that if (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is “a mistake not to accept the assistance of counsel” and that the defendant will “be required to follow all the ‘ground rules' of trial procedure,” the right of self-representation cannot be denied. Faretta, 422 U.S. at 835–36, 95 S.Ct. 2525.

Here, the record establishes that Dolph insisted on representing himself after the trial court warned him of the dangers and disadvantages of such a choice.

Although Dolph had the assistance of the appointed public defender, Derric McFarland, Dolph informed the court of his desire to represent himself on the day of jury selection.⁴ Dolph explained, “[T]he reason I ask that is because he sometimes—or he hasn't filed no motions or, you know, if there's something I want him to do and he tells me he don't want to do it during trial, I figured like that wouldn't be a fair trial.” After the court asked Dolph why he believed self-representation would benefit him, Dolph explained the he would make arguments that his counsel would not make—namely, that his bond should be reduced and that the trial court lacked subject matter jurisdiction—and that he would “bring up objections that [McFarland] wouldn't.”

The court determined that Dolph could read and write, had a tenth-grade education, and obtained a GED and found that there were no issues relating to competency or mental disease. The court admonished Dolph, “I'm going to have to hold you to the same standard that I would attorneys, in other words, I'm going to have to expect you to follow the rules of evidence and the rules of procedure.” The court also reminded him again that he had the right to be represented by counsel. The trial court discussed at length the expectation that Dolph follow the court's evidentiary rulings⁵ and the procedures involved in the criminal proceeding and warned Dolph that he would not enjoy hybrid representation.⁶

Despite the court's explanations and warnings against hybrid representation, Dolph still desired to represent himself. The court found:

Well then—what—I've determined that you've got sufficient education, I've determined that you're competent and that you're literate. I have gone over some of the issues that you're going to have to—that, some of the rights that you have, some of the consequences of representing yourself. I will go through a few more of them. I've kind of explained to you the procedure with respect to the making of objections and the introduction of evidence after the court has made a ruling on the objections.

All right, so you're electing to represent yourself. I've gone through the factors that the Supreme Court identified in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. If you persist in representing yourself, that's your right. We will respect that. I'm going to designate ... standby counsel to assist you on any legal issues, legal questions that you may have. But you've undertaken to represent yourself in this matter, and so—you have a right to do that, and so that's what we're going to do.

Dolph's brief admits that the “trial judge's inquiry into Appellant's education, literacy and competency was proper for a Faretta hearing, as was the judge's summary of the trial process and warnings that Appellant would be held to the same standards as appointed counsel.” We find that the record contains proper admonishments concerning pro se representation and all necessary inquiries to enable the trial court to assess Dolph's knowing exercise of the right to defend himself. See Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992). Dolph's persistence in asserting his right of self-representation despite the court's admonishments was all that was required in order for the court to determine that the assertion was made purposefully. See Burgess, 816 S.W.2d at 426, 429 ;⁷ Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984) (quoting United States v. Tompkins, 623 F.2d 824, 825 (2d.Cir.1980) ).

Dolph's only complaint, then, is that there is “insufficient evidence that Appellant knowingly, intelligently, and voluntarily waived his right to counsel.” He asserts that “the admonishments that were crucial to Appellant's case were those related to the range of punishment, possible defenses to the statutory offense, and any mitigating circumstances.”

II. Waiver of Counsel—Hybrid Representation

A. Summary of the Proceedings

During the proceedings, Dolph utilized his standby counsel. The record reflects that McFarland “briefly whisper[ed] to the defendant” during voir dire. McFarland expended effort to secure a witness allegedly favorable to Dolph, issued a subpoena for Dolph, and otherwise advised Dolph when asked for assistance during trial. Most importantly, Dolph stepped aside in the middle of the guilt/innocence phase, and McFarland resumed his place as active counsel for the remainder of the proceeding.

These efforts failed Dolph since the evidence of his guilt was strong. Officer Kelly Dial of the Nash Police Department testified that he witnessed a vehicle pull into “the parking lot of the Country Store” at night to “make a real quick transaction without going inside the store, kind of a hand to hand with another occupant outside—or another person outside of the store, and then they drove away.” Dial suspected drug activity. He noticed that the vehicle had an expired tag and made a traffic stop. Dolph “was the passenger in the rear of the vehicle.”

Dial testified that the driver of the vehicle gave consent to search. According to Dial, the driver “said that he thought there may be some crack cocaine in a towel in the back seat.” Dolph was asked to exit the vehicle. Dial testified, “[Dolph] advised me that there was a gun in the back seat. Or pistol, excuse me, ... that he was holding ... for a friend.” Dial recovered a “Jimenez Arms .380” semi-automatic pistol that was loaded with “seven rounds, including one in the chamber.”

After Dial testified, Dolph argued that the testimony was inadmissible because he believed his Miranda rights were violated. See ...