Landers v. State

• Decision Date: 05 January 1977
• Docket Number: No. 51979,51979
• Citation: 550 S.W.2d 272
• Parties: Thomas Edward LANDERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 272

550 S.W.2d 272

Thomas Edward LANDERS, Appellant, v. The STATE of Texas, Appellee.

No. 51979.

Court of Criminal Appeals of Texas.

Jan. 5, 1977.

Opinion On State's Motion For Rehearing April 20, 1977.

Rehearing Denied May 18, 1977.

Melvyn Carson Bruder, on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty., John H. Hagler, Les Eubanks and R. Gary Noble, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

PHILLIPS, Judge.

Appellant was convicted under the former penal code of the offense of passing a forged instrument and his punishment was assessed by a jury at five years. A prior conviction in this cause was reversed by this Court for the admission of a similar instrument bearing appellant's name, operator's license and social security number without any proof as to who wrote said items on said instrument or any evidence connecting appellant therewith. Landers v. State, Tex.Cr.App., 519 S.W.2d 115. The evidence showed that two checkbooks were stolen at a burglary on March 19, 1972. Only the check appellant was charged herein with passing was admitted. At a prior trial appellant was acquitted on the charge of passing another check allegedly taken from said checkbook, but in the instant trial said check upon which he was acquitted was excluded upon motion by the State.

Appellant's first ground of error complains of argument by the State that the State tried to offer in evidence additional checks but that appellant's counsel objected to them, and its subsequent argument that the law of extraneous offenses keeps the State from bringing many, many other checks, if there are any. Said ground of error is multifarious, Dorsey v. State, Tex.Cr.App., 450 S.W.2d 332, but we do not feel same would present reversible error even if such were not the case. The only ground stated for the objection to the first complained of argument was that same was a false statement and the only ground timely urged in the objection to the said second statement was that such was not a correct statement of law. No ground was ever stated for either of the motions for mistrial relating thereto. Even if said objections were held not within the prohibition of "general objections", Wilson v. State, Tex.Cr.App., 541 S.W.2d 174, we hold that said argument was invited by defense counsel's prior argument to the jury, to-wit:

"Let's go a step further. Don't you know that if they had any evidence, any evidence at all, that Tommy Landers . . . had additional checks, don't you know they would have . . . brought that evidence and laid it right out in front of you, pass it around like they did that check? Lack of evidence. Lack of evidence."

"It seems very strange to me, very strange, that no other checks were associated with Tommy Landers name, no other checks."

"Why didn't they bring up all those other checks and show you that Tommy Landers, Tommy Landers' name appeared on them?"

Hill v. State, Tex.Cr.App., 518 S.W.2d 810; Chappell v. State, Tex.Cr.App., 519 S.W.2d 453; Pesch v. State, Tex.Cr.App., 524 S.W.2d 299; Holloway v. State, Tex.Cr.App., 525 S.W.2d 165; Garrison v. State, Tex.Cr.App., 528 S.W.2d 837.

Appellant's second ground of error contends that the prosecutor's argument that the State was in possession of other similar checks which had been simultaneously stolen with the one charged against the appellant, when appellant had been tried and acquitted on a charge of passing one of the checks supposedly simultaneously stolen as a part of one checkbook, violated the State and Federal Constitutional prohibition against double jeopardy. Appellant's failure to make said objection to said argument at the time of the making of same precludes review of said question. Peach v. State, Tex.Cr.App., 498 S.W.2d 192; Pete v. State, Tex.Cr.App., 501 S.W.2d 683, cert. den. 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574; Schumake v. State, Tex.Cr.App., 502 S.W.2d 758; Lamberson v. State, Tex.Cr.App. 504 S.W.2d 894; Davis v. State, Tex.Cr.App., 505 S.W.2d 800; Esquivel v. State, Tex.Cr.App., 506 S.W.2d 613; Ex parte Bagley, Tex.Cr.App., 509 S.W.2d 332; Elizaldi v. State, Tex.Cr.App., 519 S.W.2d 881. However, even if same had been properly raised we would be compelled to conclude that such would not present reversible error for the reason that appellant's counsel invited the State's reply as shown above. Even if Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972), holding that collateral estoppel as a part of the law of jeopardy prohibits any reference to proof of a collateral crime of which a defendant has been acquitted is to be followed, such would apply only to primary proof thereof and not proper rebuttal evidence or a reply to invited argument thereon. Appellant's contention that Ex parte Scelles, Tex.Cr.App., 511 S.W.2d 300, holding that double jeopardy can be raised for the first time in the habeas corpus proceeding, renders it unnecessary to object at the trial level to preserve the point held to be error in Wingate v. Wainwright, supra, is clearly without merit. The Constitution prohibits a prosecution for an offense of which a person has theretofore been placed in jeopardy. The Wingate question does not involve a second prosecution for the same offense, but merely involves an evidentiary matter in a prosecution for a separate offense.

Ground of error three contends that the denial of appellant's motion to act as co-counsel in his behalf and cross examine any and all witnesses against him, make any statements to the court and argue his case before the jury if he so desired, was a violation of his rights under the Sixth Amendment to the Constitution of the United States and Art. 1, Sec. 10 of the Texas Constitution. It is true as contended by the State that the cases of Ward v. State, Tex.Cr.App., 427 S.W.2d 876; Roberson v. State, Tex.Cr.App., 513 S.W.2d 572; and Ballard v. State, Tex.Cr.App., 514 S.W.2d 267, specifically hold that an accused is not entitled as a matter of absolute right under said constitutional provisions to argue to the jury pro se. Said Roberson and Ballard cases merely cite as their authority said Ward v. State, supra, and Ward is not actually supported by any of the decisions cited therein. The recent decision by the Supreme Court of the United States in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, decided in June of 1975, in holding an accused has the absolute right under the Federal Constitution to defend himself without any counsel, made the following statements considered by us to be applicable herein:

"Although not stated in the Amendment in so many words, the right to self-representation to make one's own defense personally is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

"The counsel provision supplements this design. It speaks of the 'assistance' of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. Cf. Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408; Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S.Ct. 1245, 1248, 16 L.Ed.2d 314; Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 829, 9 L.Ed.2d 837. This allocation can only be justified, however, by the defendant's consent, at the outset, to accept counsel as his representative. An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense."

Appellant certainly did not allocate at the beginning of the trial, expressly or by implication, to his counsel the right to cross examine witnesses. To the contrary, he specifically in writing demanded this right for himself as to any and all witnesses against him. The trial court's conclusion at the time of his denial of appellant's said demand that the appellant is a "well known jailhouse lawyer" who would be impossible to work with as a co-counsel cannot properly be considered by this Court, for to do so would clearly constitute a denial of due process to appellant. Any contention that the appellant would be better off allocating his right of cross examination to his court appointed attorney is a mere argument that the framers of the Texas Constitution acted unwisely in specifically providing in Art. 1, Sec. 10 that "in all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both." (Emphasis added.) Furthermore, we might say, but we cannot know, that an accused person's chances are better with his attorney cross examining the witnesses against him. By reason of his personal and exclusive knowledge of particular facts being testified to by the witnesses against him, he may be in a better position to cross examine said witnesses than would be his attorney. The accused for reasons personal to himself may not desire to divulge to his attorney all of the intimate details of a particular transaction that might be of value in the cross...