Funderburg v. State

• Decision Date: 08 October 1986
• Docket Number: No. 268-83,268-83
• Citation: 717 S.W.2d 637
• Parties: Michael James FUNDERBURG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 637

717 S.W.2d 637

Michael James FUNDERBURG, Appellant, v. The STATE of Texas, Appellee.

No. 268-83.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 8, 1986.

G. Lee Haney, Brownwood, for appellant.

Stephen Ellis, Dist. Atty., Fred Franklin, Asst. Dist. Atty., Brownwood, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of the offense of injury to a child. V.T.C.A. Penal Code, § 22.04 (Supp.1986). Punishment was enhanced by two prior convictions and assessed at life imprisonment. V.T.C.A. Penal Code, § 12.42 (1974). In an unpublished opinion, the Eleventh Court of Appeals affirmed. Funderburg v. State, No. 11-82-228-CR (Tex.App.--Eastland, delivered March 10, 1983). We granted appellant's pro se petition for discretionary review to determine whether appellant was denied the right to represent himself at his trial. ¹ See Art. 44.33, R. 302(c)(3), V.A.C.C.P. (Supp.1986). We will affirm.

I. Facts

Appellant was indicted on January 5, 1982. On January 6, 1982, appellant appeared for arraignment and signed a sworn application for the appointment of an attorney. The trial court appointed an attorney to represent appellant and proceeded with arraignment. After arraignment, the following colloquy occurred between appellant and the trial court:

"THE COURT: Mr. Funderburg, I'm going to look to Mr. Haney primarily in this case, because you have absolutely no qualifications that would convince me that you are able to represent yourself in this case. If you have a request for a specific book, I'll try to make that arrangement. We do not have available and I'm not going to at this time in view of the fact that I've appointed Mr. Haney, I'm not going to order that you be brought to the county law library, because we don't have facilities for that purpose, but if you have a specific case that you want or if you have a specific book that you want, if it's available here, we'll try to make it available to you. But I'm telling you right now that I'm going to look to Mr. Haney as your attorney. And you're starting out--I told him the first thing that you obviously don't know, as you have no legal experience and no legal background, is if you were to walk in a courtroom with shirt sleeves on like that before a jury, you would practically be on the way to the penitentiary right then.

"THE DEFENDANT: I understand.

"THE COURT: So you have convinced me today that you don't really show any ability to represent yourself. I mean, that is no reflection on you, but neither does the average layman have any business trying to represent himself, so you're going to have the benefit of a very bright attorney in this case, and I urge you to either turn your defense over to him or rely on him very heavily, because he knows what to do and you don't.

"THE DEFENDANT: Am I still defending myself?

"THE COURT: Not officially. I probably during the trial will let you do certain things that you might request, but I'm not going to let you sit up and try to be your own lawyer and take the entire burden of defending your own case.

"THE DEFENDANT: Don't I have a right to do that? I want to do it.

"THE COURT: No, sir, you don't, not unless you can convince the court that you have the ability to do that, and the experience--

"THE DEFENDANT: How can I do that?

"THE COURT: Well, you have told me what your educational background is, Mr. Funderburg, that is pretty good proof right there that you are not qualified to represent yourself. Are you telling me you don't want any help from a lawyer?

"THE DEFENDANT: I'm saying I would like to represent myself.

"THE COURT: I understand what you are saying, but you have not shown me any evidence of an ability.

"THE DEFENDANT: I appreciate any help he can give me. I can understand that. I would still like to represent myself.

"THE COURT: We'll see at the time. You do what you think you need to do and you confer with Mr. Haney. At the time of the trial, which is on March First, I will try to, matters that I feel that you can handle, I probably will let you handle. Matters that you are clearly not equipped to, for example, you indicated to the court earlier that if you were convicted, the fact that you were charged with a habitual criminal status was an automatic life sentence, well, it's not automatic unless it's proved and you don't know whether the state's proved it or not proved it; you don't know the requirements, I'm sure, that are on the state, the type of proof that the state must make in order to prove to a jury habitual criminal status nor do I believe you are equipped to make objections to the way proof might be offered in such matter. You are talking about serious matters. You are talking about maybe looking at a life sentence, and I don't know how many times you have been to the penitentiary, but obviously you have been twice and if you were defending yourself in the punishment phase, for example, I don't think you would have the foggiest idea of what is and is not admissible, and I'm not going to represent you. In other words, I'm going to try to see that you get a fair trial, but I'm a judge and I'm not on either side. I'm just going to try to call the shots under the law as I understand the law to be. So you have got to have somebody that's got some legal experience and education in order to make an adequate defense, otherwise our system of justice is a pure mockery, and you're, really you're making it a mockery when you try to tell me that you want to represent yourself. Because I have been practicing criminal law for 30 years, you know, I represent the system, I represent the adversary system. And I have done about equal amount of defense work and prosecution work before I went on the bench. And I just think that it's a mockery for a man without--you know if you had been to law school for a couple of years or maybe had a law degree, but had never practiced law, if you had that kind of an educational background, there might be some merit to you trying to represent yourself, although, even then it's dangerous. But for a person who has had no legal training, it's virtually the same thing as coming in and pleading guilty to the jury. You know, maybe that is what you want to do, but it's very akin to suicide.

"THE DEFENDANT: If at all possible, I would like to try it.

"THE COURT: Well, I'll try to see that things that I feel they you can do yourself, I'll permit you to do. Some things you obviously will not be able to do. And you better consider very strongly what I'm telling you about the punishment phase in the event a jury finds you guilty. You sure better leave the next stage of the trial up to the lawyer.

"Your case is set, the pre-trial is set on the 26th. Thank you, Mr. Haney.

"MR. HANEY: Thank you, Your Honor."

(Supp.R. I-3-7.) ² At a pretrial hearing on January 26, 1980, and during the subsequent trial on February 22, 1980, appellant was represented by appointed counsel.

In a supplement to the record, the State offered proof, via a bill of exception, that appellant waived his right to self-representation. ³ The bill of exception was supported by affidavits from the district attorney, an assistant district attorney, appellant's appointed attorney and the court reporter. The bill states that "at one of the numerous pre-trial hearings scheduled in [State v. Funderburg, No. 9694], either at the conclusion of the hearing on January 6, 1982 or prior to the hearing on January 26, 1982," appellant told the trial court that, after "consultation" with his court-appointed attorney, he preferred to be represented by his court-appointed attorney "rather than to continue to insist on self-representation...." (Supp.R. IA-1-5).

Appellant has filed a supplemental record with this Court that contains a bill of exception. ⁴ The bill states:

BE IT REMEMBERED that prior to the commencement of a pre-trial hearing on January 26, 1982, the Court informed the Defendant that his appointed counsel had informed the Court that after talking with the Defendant he had been asked to proceed with the preparation of the defense in cause number 9694. The Court asked the Defendant if he had told the attorney this and he replied that he had. The extent of the Court's inquiry was as such to determine that the Defendant relinquished his right to self-representation, as evidenced by his subsequent pre-trial hearing on January 6, 1982.

(Supp.R. III-14).

II. Right to Self-Representation

The Court of Appeals, relying upon appellant's supplemental statement of facts, found that appellant had requested the right to self-representation. Funderburg, supra, at 1. Relying upon the State's bill of exception, the Court of Appeals found that appellant waived his right to self-representation and agreed to be represented by his court-appointed attorney. Id., at 1-2. Furthermore, the Court of Appeals held that the record did not show a knowing or intelligent waiver of the right to counsel by appellant and that no objection was made by appellant "to the fact that the trial court did not permit appellant the right to self-representation." Id. The Court of Appeals concluded by holding that "there is no error in appointing a lawyer for appellant, but if there be error, none is preserved for this court to consider." Id.

Appellant concedes that he informed the trial court "that he wanted the appointed attorney to proceed with the case." (Brief for Appellant, p. 8). However, appellant argues that the trial court failed to determine whether appellant was voluntarily relinquishing his right to self-representation.

Appellant argues that his waiver of his right to self-representation was involuntary because the trial court left him with no alternative at the hearing on January 6, 1982. In effect, he contends that he decided "not to continue persisting on an issue the trial court had already denied...