Martin v. State

• Decision Date: 14 April 1982
• Docket Number: No. 59074,59074
• Citation: 630 S.W.2d 952
• Parties: Billie Glen MARTIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 952

630 S.W.2d 952

Billie Glen MARTIN, Appellant, v. The STATE of Texas, Appellee.

No. 59074.

Court of Criminal Appeals of Texas, En Banc.

April 14, 1982.

Donald W. Duesler, Beaumont, on appeal only, for appellant.

Robert Huttash, State's Atty. & Alfred Walker, Asst. State's Atty., Bruce N. Smith, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.

Before the Court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

CLINTON, Judge.

Our prior opinion is withdrawn.

In light of the unorthodox way our earlier opinion was produced, the State, in effect, is urging that the Court En Banc engage in its essential function of reviewing an initial opinion on original submission to a panel of the Court. ¹ Through examination of portions of the record now pointed to by the State and upon further reflection we believed there is enough substance to certain grounds for rehearing formulated by the State, ² and granted leave to file to determine anew whether more than the requirements of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (Faretta), must be satisfied and, if not, whether they were met by the trial court below.

Faretta finds in the Sixth Amendment an independent constitutional right of an accused to conduct his own defense. 422 U.S. at 836, 95 S.Ct. at 2541. Thus, the right to selfrepresentation does not arise from one's power to waive assistance of counsel. Id., at 814-820, 95 S.Ct. at 2530-2533. Therefore, it is for the accused personally to decide whether assistance of counsel in his particular case is to his advantage, and "his choice must be honored out of 'that respect for the individual which is the lifeblood of the law,' " id., at 834, 95 S.Ct. at 2541. ³

To implement the right of selfrepresentation the Supreme Court imposed upon a trial court certain duties which, as now seen, are no more than what is expressly stated in or necessarily implied from the following paragraph:

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. (458), at 464-465 (58 S.Ct. 1019 at 1023, 82 L.Ed. 1461). Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, (68 S.Ct. 316, 323, 92 L.Ed. 309) (plurality opinion of Black, J.). 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.' Adams v. United States ex rel. McCann, 317 U.S. (269) at 279 (63 S.Ct. 236 at 242, 87 L.Ed. 268)."

Id., at 835, 95 S.Ct. at 2541. ⁴

The original opinion in the case at bar alludes to prior decisions of the Court and reiterates "requisites" that the State stoutly complains are really "suggestions" which "are not an integral part of the Faretta rule." (Emphasis by the State.) We agree that Faretta does not mandate, in the words of the original opinion in this cause, an "inquiry concerning appellant's age, education, background, or previous mental health history" in every instance where an accused expresses a desire to represent himself, for the record may otherwise be sufficient for the Court to make "an assessment of his knowing exercise of the right to defend himself," id., at 836, 95 S.Ct. at 2541. ⁵ And in the case at bar we find that assessment is justified.

At the outset we note that the indictment alleged and the State was to prove that appellant had been twice convicted of felony offenses of burglary within six years immediately preceding the instant burglary offense. Thus, like Faretta, appellant had some familiarity with the criminal justice system. Similarly, he had made clear well before trial that he desired to represent himself, and that the judge who heard the matter had determined to honor his position was known to the trial judge. ⁶ Still, the trial judge reprised the matter of selfrepresentation just before beginning one trial of this case October 26, 1977. In the margin we set out pertinent portions of his inquiry-reminiscent of the germane portions of colloquys in Faretta, supra, U.S. at 807-810, nn. 2 and 3, 95 S.Ct. at 2527-2529, nn. 2 and 3-that brought the court again to respect the choice of appellant to defend himself. ⁷

That done, a jury was selected, according to an entry by the court reporter, by Thomas Mulvaney, an assistant district attorney, and appellant, himself. Before the jury was seated in the box, out of stated abundance of caution the trial court arraigned appellant, and-still outside the presence of the jury-presented to appellant for execution "if it meets your approval" the written "waiver of attorney" alluded to in the original opinion of the Court. ⁸ After appellant executed the waiver, the jurors were seated, sworn, empanelled and instructed generally as to their duties. The court announced both sides were having witness problems, and the jury was excused until the next morning.

October 27 the State moved in writing for a continuance on account of unavailability of a material witness and, without objection, a mistrial was declared and the case reset for trial November 7. In advance of that day appellant prepared a proper request for issuance of subpoenas for four witnesses. When the trial was again continued, appellant made written protest that he had not been present to object to the continuance; apparently as a consequence the record shows that November 14 appellant moved for a continuance, and that was granted. Trial commenced November 28. ⁹

Given these facts and circumstances-from initial demand for selfrepresentation through the confirmed admonishment by Judge Gist, the subsequent inquiry conducted by Judge Giblin, to his participation in the first aborted trial-as to the final completed trial, we find the record establishes that appellant knew what he was doing and his choice was made with eyes open. Faretta, supra, U.S. at 835-836, 95 S.Ct. at 2541.

Therefore, the State's motion for rehearing is granted, and we proceed to consider and decide the remaining grounds of error presented by appellant.

Ground of error number one asserts that the trial court erred in not submitting a charge on circumstantial evidence. However, appellant does not summarize the evidence to inform us of the circumstantially evidentiary nature of the facts of the matter, and, pointing to his confession to committing the offense, the State insists its case does not depend solely on such character of evidence. Be that as it may, appellant concedes that he did not object to the charge on that account nor request an instruction on circumstantial evidence. Thus, the alleged error has not been preserved for review, as required by Articles 36.14 or 36.15, V.A.C.C.P., and may not be reviewed on appeal unless it appears that his rights were injured or he did not have a fair and impartial trial. Article 36.19, V.A.C.C.P.; Mills v. State, 508 S.W.2d 823, 825-826 (Tex.Cr.App.1974); see Boles v. State, 598 S.W.2d 274, 278 (Tex.Cr.App.1980). Though it may be that failure to protect the record flowed from deficiencies in the selfrepresentation that appellant demanded be accorded him, such is one of the risks he assumed. ¹⁰ Hawkins v. State, 613 S.W.2d 720, 728 ¹¹ (Tex.Cr.App.1981); Trevino v. State, 555 S.W.2d 750, 751 ¹² (Tex.Cr.App.1977).

The second ground of error complains that the prosecuting attorney impermissibly commented on failure of appellant to testify. The argument now called to our attention is not, at first blush, a sure implication of a failure to testify. But, alas, we may not further analyze it for, again, the claimed error was not preserved by objection voiced at the time the comments were made. There is nothing to review. Valore v. State, 545 S.W.2d 477, 481 (Tex.Cr.App.1977).

The record with respect to the third ground of error, claiming that an account of committing an extraneous offense within appellant's confession to the instant offense should have been excluded by the trial court, is in worse shape than the first two grounds. In a hearing outside the presence of the jury the State authenticated appellant's full confession, but offered an abridged version which omitted appellant's account of the extraneous offense. Appellant, however, insisted that the complete, unabridged confession be admitted in evidence. Of course, he cannot now characterize as error that which was consented to or invited by him, 5 Tex.Jur.2d 611, § 409, nor complain of material in evidence brought out by him while acting as his own attorney, Gilley v. State, 114 Tex.Cr.R. 548, 26 S.W.2d 1070 (1930).

Following Faretta, the Court has cautioned, "When an accused elects to represent himself he cannot complain that the quality of his own defense amounted to a denial of effective assistance of counsel," Williams v. State, 549 S.W.2d 183, 189 (Tex.Cr.App.1977). Our disposition of grounds of error one, two and three are the wounds an accused may have to suffer on appeal for exercising his constitutional right to defend himself at trial, and it is little consolation to have it pointed out that they were selfinflicted.

The State's motion for rehearing is granted and the judgment of conviction is affirmed.

W. C. DAVIS, Judge, concurring on State's motion for rehearing.

I concur with the majority opinion adopting a more accurate interpretation of the requirements of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, I think it important to caution that, although the particular inquiry suggested in the opinion on original submission ¹ is no longer essential in every case, the record must affirmatively reflect that...