Maddox v. State

• Decision Date: 24 September 1980
• Docket Number: No. 1,No. 56695,56695,1
• Citation: 613 S.W.2d 275
• Parties: Byron Wayne MADDOX, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 275

613 S.W.2d 275

Byron Wayne MADDOX, Appellant, v. The STATE of Texas, Appellee.

No. 56695.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 24, 1980.

On Rehearing Feb. 4, 1981.

On Rehearing April 4, 1981.

W. John Allison, Jr., Dallas, on appeal only, for appellant.

Henry Wade, Dist. Atty. and Stephen J. Wilensky, J. Russell Ormesher and Stephen P. Tokoly, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

OPINION

ROBERTS, Judge.

I.

The appellant was found guilty of murdering Kenneth Coppinger in the Dallas County jail. A jury assessed his punishment at confinement for life.

In a written statement made shortly after the murder, the appellant said that he was in the dayroom watching television while the murder took place in a cell, and that he knew nothing about the murder. In conferences with his appointed counsel during the months before trial, the appellant "never specifically wavered" from his alibi, and "in the end he would also specifically say that, 'Well, I guess I will just stand by the statement.' " The appellant was "evasive" with his counsel in discussing the nature of his defense; he would not indicate definitely whether he would testify. This uncertainty continued into the trial. During the presentation of the State's case, the appellant whispered to his counsel a number of things that were inconsistent with his alibi. Counsel testified:

"There were statements that he made ... that, 'It couldn't have happened', or that the way a particular witness was describing the way one of the other defendants, and, more specifically, ... there was one time specifically that it was David Villalon's actions were coming out during the trial. He had already been tried (for the murder) previous to Mr. Maddox'(s) trial. And the witness was stating how Mr. Villalon was holding Mr. Coppinger and what exactly he was doing, and Mr. Maddox was upset that he thought the witness was lying because he said, 'That wasn't the way Villalon had him, because I was doing this and Villalon was doing that.' * * * And there were numerous statements that he made ... or innuendos that it couldn't have happened a certain way, the way it was being described, or a certain person wouldn't have heard that because of something else, and the only way he would have known the because (sic) would be if he were present or took part in it."

These statements caused counsel to fear that the appellant might be intending to testify falsely.

At noon on the third day of the trial, the State rested. During the noon recess, counsel pressed the appellant for a decision on whether he would testify. The appellant said that he would testify, and apparently indicated that he would testify in accordance with his written statement of alibi. At lunch, counsel discussed with his partner (who was helping him try the case) the ethical problem that they would face if their client intended to give perjured testimony. They decided to consult a judge, who advised them to tell the trial judge that they needed to have a private conversation with the appellant. This they did, also telling the trial judge that there could be some perjured testimony if the appellant took the stand. The trial judge let the attorneys use his library for a conference with the appellant. The appellant admitted that he had participated in the attack on Coppinger, but he asserted that he had the right to take the stand and lie because the State's witnesses had lied. The appellant refused to discuss the details of his planned testimony. The attorneys advised the appellant not to take the stand and give perjured testimony. At some point, the appellant refused to discuss the matter any more. The noon recess, which was to have been an hour and a half long, lasted about three hours.

The trial resumed in a normal fashion. The defense called five witnesses, four of whom already had testified for the State. The other, new witness presented evidence of alibi. He testified that he and the appellant had been watching television in the dayroom and were unaware of the murder until Coppinger's body was discovered in the corridor, after which they beat on the walls and yelled for about 15 minutes until a jailer came. (The appellant's later testimony comported with this account.) The appellant's attorneys conducted the examination of these witnesses in the usual manner.

After a recess, the following took place out of the presence of the jury:

"THE COURT: Both sides ready to proceed at this time?

"MR. LATMAN: Ready, Your Honor.

"THE COURT: All right.

"MR. LATMAN: We have a statement and motion to make. Your Honor, Mr. Smith and myself, as court appointed attorneys for Mr. Maddox, have tried to represent Mr. Maddox to the best of our ability in this case, giving him advice and counselling commensurate with our experience and knowledge and our best opinions. We have advised Mr. Maddox it would be against his interests to take the stand. We have also advised him he has a constitutional right not to take the stand and the Jury may not imply anything from that fact. We have explained to Mr. Maddox the areas which the State may go into if he takes the Stand, and we have told him, in our best judgment, it is not in his best interests.

Also, certain other facts have come to our knowledge that we will not go into at this time, but Mr. Maddox has informed us that he wishes to take the stand. We feel that it is contrary to our duties as attorneys under the canons of ethics and the bar rules to comply in his doing this, although we realize he has a constitutional right, as does every citizen, to take the stand in his defense.

Therefore, at this time, and in view of those facts and other facts which we have made known to the Court in chambers, we humbly ask the Court to remove us as attorneys of record and absolve us of any further responsibility in this case.

"THE COURT: All right. Your request to be removed as counsel is denied, and the Court would instruct you to continue in the case to the best of your ability and within the ethics that govern the legal profession.

"MR. LATMAN: At this time, Your Honor, on behalf of the defendant, Maddox, he will take upon representing himself in taking the stand, and we ask that he be allowed, under the recent cases, to defend himself while he is on the stand and ask himself the questions.

"THE COURT: Mr. Maddox, do you wish to testify in the case?

"MR. MADDOX: Yes, sir, I do.

"THE COURT: And do you wish to undertake to assume the responsibilities of being your own attorney for the limited purpose of testifying and representing your testimony to the Jury?

"MR. MADDOX: Yes, sir, for that purpose only.

"THE COURT: The Court will allow you to assume your own representation in this respect."

After the trial court explained to the jury that the appellant had "elected ... to represent himself in the presentation of his testimony to the jury," the appellant testified in a narrative fashion, without the participation of counsel. On cross-examination, objections were made in a variety of ways. The first interruption was made by the court's calling counsel to the bench, after which the State abandoned a line of objectionable questions. Next, the appellant's counsel requested a bench conference, which resulted in another line of objectionable questions being dropped. Thereafter, the appellant's counsel made several objections. The appellant's only effort to make a pro se objection was ignored. ¹ After the appellant's testimony, the trial was recessed for the night.

The next morning (the fourth day of the trial), the appellant was presented with the court's proposed charge, to which he had no objection. He did have a motion to dismiss his counsel, because they had "hurt (his) testimony a lot" by refusing to examine him and by trying to persuade him to rest without presenting a case. The following took place after the appellant made his motion:

"THE COURT: All right. The Court will note that as your allegations and your contention. Do you wish to continue as your own attorney? Is that what you wish to do?

"MR. MADDOX: Yes, sir. I would ask that you appoint some counsel to advise me, and give me a little time to confer with them and get ready. And I would also ask that you would instruct these attorneys to give me a copy of all the notes they have taken through the State's case.

"THE COURT: Do you have any objection to him reviewing your notes?

"MR. LATMAN: Your Honor, he's more than welcome to our notes. I would say, since we are still his counsel, I don't think it would be proper for us to make any comment on his charges one way or the other, but we would say that we feel that our client does not know the consequences of the acts that he is asking to do. Although he has the right, I assume, to take over completely his defense with another attorney advising him, we personally don't think it's in his best interests to do so.

"THE COURT: All right. The Court observes that the defendant has just been brought into the courtroom and has not had any opportunity to confer with counsel this morning. I will grant you a 5 or 10 minute recess to confer or advise with him concerning his motion and give him a chance to talk to you about it, and then I will proceed.

"MR. LATMAN: Thank you, Your Honor.

"MR. SMITH: Thank you, Your Honor.

(Whereupon, a recess was taken, after which the following proceedings were held.)

"THE COURT: All right. The Court has considered the defendant's motion made herein and the Court denies your motion to discharge your attorneys of record. This ruling is without prejudice to the defendant undertaking or continuing to undertake his own representation in the case in any or all of the remaining phases of the case. It is the opinion of the Court that the defendant's attorneys have conducted themselves honorably and to the defendant's best interests...