Scarbrough v. State
| Decision Date | 14 June 1989 |
| Docket Number | No. 930-87,930-87 |
| Citation | 777 S.W.2d 83 |
| Parties | Danny Ray SCARBROUGH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Thomas A. Dunn, Tyler, for appellant.
Jack Skeen, Jr., Dist. Atty. and Ann M. Monaco, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of the offense of aggravated sexual assault, and his punishment, enhanced by two previous felony convictions, was assessed by the jury at 99 years in the Texas Department of Corrections.
In a single point of error on appeal appellant alleged the trial court deprived him of his constitutional right to represent himself at trial, recognized by the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Twelfth Court of Appeals held, in an unpublished opinion, that appellant failed unequivocally to assert his right to selfrepresentation, and overruled his point of error. Scarbrough v. Texas, (Tex.App.--Tyler, No. 12-86-0173-CR, delivered May 18, 1987). We granted appellant's petition for discretionary review to determine whether appellant's assertion of the right was indeed unequivocal on the record before us. Tex.R.App.Pro., Rule 200(c)(2).
On the morning of January 2, 1986, appellant appeared for arraignment without an attorney. Asked by the trial court whether he was able to afford counsel, appellant responded, "I don't want an attorney." When the court asked if this was indeed so, he replied, "That is right, not right now." He indicated he would want an attorney "[w]hen I go to court, I guess[,]" and denied wanting to represent himself. The trial court refused to arraign appellant or allow him to waive arraignment under the circumstances.
Later the same day the cause was recalled and the following colloquy ensued:
"THE COURT: If I recall you stated that you did not have an attorney.
[Appellant]: Yes, sir. I want to represent myself.
THE COURT: Are you saying you want to represent yourself?
[Appellant]: Yes, Your Honor.
THE COURT: Are you telling the Court that you want to represent yourself at all stages of the proceedings, including arraignment?
[Appellant]: For right now, yes, Your Honor.
THE COURT: For right now. Are you expressing some uncertainty as to whether you will want to represent yourself at all stages?
[Appellant]: Yes, Your Honor.
THE COURT: You do have reservations?
[Appellant]: I would like to represent myself.
THE COURT: All the way?
[Appellant]: Yes, sir, Your Honor."
The trial court then explained to appellant that certain admonishments would be necessary, and declined to undertake those "now because it is a rather lengthy proceeding." Appellant replied, simply, "I request to represent myself, Your Honor." Again the court declined to arraign appellant.
On January 17, 1986, the cause was again called for purposes of admonishing appellant of the dangers and disadvantages of self representation. The trial court announced it had appointed standby counsel, then present, "to assist [appellant] in any way [appellant] would permit his assistance in making the determinations that the Court has an obligation to make." Appellant interjected, The trial court then began to question and admonish appellant. Appellant stated he was thirty-five years old, a laborer by occupation, with a high school equivalency education. He had never represented himself in a legal matter. He demonstrated an awareness of the charges against him, but had to be instructed regarding the applicable range of punishment. The trial court instructed appellant as to the "technical" nature of rules of procedure and evidence, and the law governing voir dire and jury charges. The court made clear that concessions would not be made at trial on account of appellant's lack of training and experience. The court next questioned appellant about the punishment phase of a trial, during which the following occurred:
"THE COURT: ... Do you think that you are able now to make proper objections if the District Attorney tries to introduce some prior criminal conviction that is not properly proved up or authenticated; do you think you would know when to object and when not to object at the penalty phase? Just give the Court your best answer that you can, whatever you are thinking.
[Appellant]: I believe I could, Your Honor.
THE COURT: All right. Are you willing to take that chance?
[Appellant]: I will let [counsel] take it, then.
THE COURT: I don't quite understand what you are saying now. Tell me what you are saying now. Are you saying you want [counsel] to take over your defense?
[Appellant]: To help me along with it.
THE COURT: To help you?
[Appellant]: Yes, sir.
THE COURT: You want him to be available to help you when you feel the need for him to help you?
[Appellant]: Yes, sir.
THE COURT: Is that right?
[Appellant]: Yes, Your Honor."
After these admonishments appellant assured the trial court that his choice to represent himself was "intelligent, freely made and voluntarily made[,]" and with a full awareness of "the dangers and pitfalls of self representation[.]" The colloquy next turned to the trial court's concern to avoid delay or disruption:
"THE COURT: Do you have any intentions or thoughts that by representing yourself these proceedings or your trial might be delayed or interrupted?
[Appellant]: Yes, Your Honor.
THE COURT: Well, I am not sure you understood the Court's question. The Court's question is simply this, you do or do not have any intent by representing yourself to disrupt the proceedings?
[Appellant]: Oh, no.
THE COURT: You wouldn't do that?
[Appellant]: I don't think so.
THE COURT: All right. You have no desire or intent that the proceedings be delayed?
[Appellant]: No, Your Honor.
THE COURT: Let's suppose we start out in the trial with you representing yourself.
[Appellant]: Yes, sir.
THE COURT: And then at some stage you decide you don't feel quite comfortable representing yourself and you should then say, 'Judge, I want a lawyer to represent me.' Now, at that point do you understand the Court would have to appoint a lawyer if he hadn't already done so, and your lawyer might have to have a day, or two days, or a week in order to prepare to represent you; do you understand that?
[Appellant]: Yes, Your Honor.
THE COURT: And that in itself would cause delay and some disruption. We would have a jury in the box. The Court would have a problem with what to do. You are assuring the Court that you will be orderly and respectful?
[Appellant]: Yes Your Honor.
THE COURT: Can you tell the Court that you truly want to represent yourself?
[Appellant]: Yes, Your Honor.
THE COURT: Now, do you want [counsel]--the Court to appoint [counsel] to be available at all stages in the courtroom to assist you in any manner and at any time you feel the need for his assistance?
[Appellant]: Yes, Your Honor.
THE COURT: All right. And do you understand that once the trial commences that it will be the expectation of the Court that the trial continue until it has been finally concluded?
[Appellant]: Yes, Your Honor."
Because appellant had undergone a psychological examination to determine his competency to stand trial in a recent prosecution for driving while intoxicated, the trial court decided to defer ruling on appellant's request for self representation pending further psychological evaluation:
By the time of the next hearing in this cause, however, on January 22, 1986, the trial court had decided it did not require further psychological evaluation after all. On this day the following exchanges took place:
"THE COURT: Mr. Scarbrough, you have had a little time to think, you have had time to visit and confer with [counsel]. Do you still feel that you are capable of effectively representing yourself on this case?
[Appellant]: Yes, Your Honor, I do.
THE COURT: You may be seated while I am asking these questions.
Now, the Court is not quite clear on exactly what your request is. I can't decide, or haven't to this point been able to decide, if you are wanting to handle your defense yourself all the way through, including the arraignment--you haven't been arraigned yet, nothing has happened yet, Mr. Scarbrough; do you understand that?
[Appellant]: (Nodding head up and down.)
THE COURT: Or are you wanting to represent yourself on certain portions of the trial, then turn it over to [counsel] for other portions of the trial, and then after [counsel] has handled a portion then you continue, and so on and so forth, in a rotating sort of a manner. Can you enlighten the Court a little as to what you have got in mind and what your request is?
[Appellant]: I will handle it all the way through, Your Honor. He can stay as advisory--to advise me a little along, it would be all right.
THE COURT: Well, do you want [counsel] to be present at all times in the courtroom available to you for advice when you think you need it?
[Appellant]: If he wishes--if he wishes to.
THE COURT: What is your wish?
[Appellant]: I could use some advice...
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