Smith v. State, No. 05-03-01282-CR (TX 5/17/2004), 05-03-01282-CR.
Court | Supreme Court of Texas |
Parties | LARRY DON SMITH, Appellant v. THE STATE OF TEXAS, Appellee. |
Docket Number | No. 05-03-01282-CR.,05-03-01282-CR. |
Decision Date | 17 May 2004 |
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F01-563888-MQ.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
OPINION NUNC PRO TUNC
Opinion By Justice LANG.
On the court's own motion, we issue this opinion nunc pro tunc to correct a clerical error in our May 5, 2004 opinion. We vacate our previous opinion. This is now the opinion of the court.
Larry Don Smith appeals his conviction for the aggravated sexual assault of a child younger than fourteen years of age. After a jury trial, the appellant was sentenced to life imprisonment. The appellant argues that his waiver of appointed counsel and request to represent himself was not "knowingly and intelligently" made.1 Also, the appellant argues that the trial court erred in denying him a continuance to prepare his pro se defense. In addition, the appellant challenges the legal and factual sufficiency of the evidence proving that the victim was younger than fourteen years of age at the time of the offense. The trial court's judgment is affirmed.
Joanne Crooks, a widow, and the appellant lived together as boyfriend and girlfriend for approximately nine years from 1992 to 2001. Crooks' grandchildren, including the victim, intermittently resided with or visited them. During their cohabitation, Crooks' grandchildren began calling the appellant, "Grandpa Larry."
When the victim was eleven years old, the appellant began showing her magazine photographs, computer images, and movies of people having sex. One of the movies the appellant showed to the victim was a videotape of the appellant having sexual relations with Crooks, the victim's grandmother. The appellant also began to sexually assault the victim.
At the age of thirteen, the victim made an outcry to her mother. The victim's mother contacted the police and took her daughter to the Children's Victim Assessment Center. The physical examination of the victim revealed no evidence of sexual intercourse, but the victim did test positive for Chlamydia, a sexually transmitted disease.
The appellant was arrested and indicted for aggravated sexual assault of a child younger than fourteen years of age. This case was set for trial at least six times with at least three announcements of "ready." Immediately prior to voir dire, the appellant requested to represent himself and asked for a continuance to review the evidence and prepare a defense. In response to the appellant's request, the following dialogue took place:
That would be the bulk of the tangible evidence the [S]tate would offer.
My advice to you is let your attorney handle it. It's your decision; however, it may — you know, it might not be in your best interest to do that. It's your decision. I want to make sure you understand that.
The trial court granted the appellant's request to proceed pro se, but denied his request for a continuance of the trial. In addition, the trial court appointed standby counsel.
The trial of this case commenced on August 12, 2003, and concluded on August 15, 2003. At trial, testimony revealed that the victim was currently fifteen years old and that she was thirteen years old during the summer of 2001. There was also testimony that the victim was born on September 16th. However, the year of the victim's birth was not provided in testimony and the victim's birth certificate was not admitted into evidence.
At the conclusion of the trial, the jury found the appellant guilty of the aggravated sexual assault of a child. After a hearing on punishment, the jury sentenced the appellant to life imprisonment. The appellant appeals his conviction for the aggravated sexual assault of a child.
In his first issue on appeal, the appellant claims that the trial court did not make an inquiry into his "knowing and intelligent" waiver of counsel and did not advise him of the punishment range he would be facing.
Federal and state case law support the conclusion that the right to waive counsel and the right to self-representation are two separate rights. Eg. Faretta v. California, 422 U.S. 806, 814-34, 95 S.Ct. 2525, 2530-41, 45 L.Ed2d 562 (1975). Accord Johnson v. State, 760 S.W.2d 277, 279-81 (Tex. Crim. App. 1988)(en banc)(plurality opinion); Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982)(en banc). See also Johnson, 760 S.W.2d at 280 ( ); Williams v. State, 774 S.W.2d 703, 705 (Tex. App.-Dallas 1989, pet. ref'd). In Faretta, the U.S. Supreme Court established the independent right of self-representation, in addition to the previously recognized right to waive the assistance of counsel. Faretta, 422 U.S. 806, 95 S.Ct. 2525. See also Johnson v. State, 760 S.W.2d at 279 ( ). In the wake of Faretta, it has been generally accepted that a defendant's assertion of his right of self-representation is dependant, in part, upon a waiver of his right to counsel. Johnson v. State, 760 S.W.2d at 280 ( ). Federal courts have determined that the right of self-representation necessarily entails a waiver of the constitutional right to be represented. Id. at 281 citing eg. Chapman v. United States, 553 F.2d 886, 892 (5th Cir. 1977). Accord Webb v. State, 533 S.W.2d 780, 785 (Tex. Crim. App. 1976) ( ). Cf. Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991)(en banc) ( ); Goffney v. State, 843 S.W.2d 583,...
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