Smith v. State, No. 05-03-01282-CR (TX 5/17/2004), 05-03-01282-CR.

CourtSupreme Court of Texas
PartiesLARRY DON SMITH, Appellant v. THE STATE OF TEXAS, Appellee.
Docket NumberNo. 05-03-01282-CR.,05-03-01282-CR.
Decision Date17 May 2004



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:

COURT: Mr. Smith. Go ahead. You're requesting that you be allowed to represent yourself; is that correct?

DEFENDANT: Yes, sir.

COURT: This is the first time that you have either to — well, the first time you made me aware of it and you never mentioned it to your attorney?

DEFENDANT: No, I have not. He is completely in the dark on this.

COURT: Mr. Stephens [court-appointed defense counsel], you have been on the case since February 2002?

MR. STEPHENS: That's correct, Your Honor.

COURT: I have the date you were appointed February 20, 2002. This is the first time you had any sort of inkling your client wishes to do this, as well?

MR. STEPHENS: Correct, Your Honor.

COURT: Mr. Smith, you feel you have given this serious consideration and [are] prepared to go forward today?

DEFENDANT: Yes, I have.

COURT: [Do] [y]ou want Mr. Stephens to sit and assist you in the event you have questions?

DEFENDANT: Or I would like to have some time to prepare a defense, because I need to see the evidence the prosecutor's using against me so I can have copies of it so I can use it to prepare a case. I need time.

COURT: I can't do that. You have sprung it [on] the day of trial.

DEFENDANT: I asked for a trial and I was moved in time, sir.

COURT: I'm talking about representing yourself.

DEFENDANT: Well, I kept thinking we would get to prepare my case and I would get to see the evidence. Not being aware there was any other way, I thought there would be a day he would show me the evidence.

COURT: What evidence is there that — Mr. Stephens, have you discussed this? I'm sure you talked with the prosecutor as far as what evidence might be presented?

MR. STEPHENS: Yes, sir.

COURT: Is there any tangible evidence of any sort, Ms. Wasson [prosecutor], of any consequence?

MS. WASSON: Your Honor, [the] [S]tate would be offering several items of evidence: videotape of the defendant and his spouse engaged in sexual contact that was shown to the victim; a videotape of the victim's interview at the Collin County Children's Advocacy Center; there's other evidence that was seized from the house, including a computer, two computer hard drives, video camera, various floppy disks, photographs taken of the exterior and interior of the home where the offense occurred.

That would be the bulk of the tangible evidence the [S]tate would offer.

COURT: Okay.

DEFENDANT: Your Honor, for me to prepare a defense, I have to see all of this and know. I would be willing to do it on my own to prepare it. I'm not sure he would be willing to do with assisted counsel. Because I haven't discussed it. I got to the point where I realize — I can't get a fair trial this way.

COURT: Are you trying two cases?

MS. WASSON: The [S]tate's proceeding on the aggravated sexual assault, Your Honor.

COURT: All right. We'll take a short recess here.

COURT: Mr. Smith, let me also make sure that you understand. I discussed this earlier, but I want to make sure you understand. If you represent yourself, you're gonna be basically held to the same standard as any other attorney that comes before me.

DEFENDANT: Yes, sir, I respect that.

COURT: I explained it to you that you not being trained and experienced in law, there may be situations where you may fail to make an objection because you don't know it's proper. Evidence may be admitted because you don't make proper objections. A number of matters could happen to your detriment and I want to make sure you understand fully that these issues may occur and you're going into this with your eyes wide open, understanding.

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.

DEFENDANT: Your Honor, I respect you for that and I appreciate it very much. Obviously there's no easy — no way for this. But I just...

COURT: Mr. Stephens will be there if you need to ask him questions. You can ask him. He will be available to advise you if you need any sort of advice as well....

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.

A. Applicable Law

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 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.); 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 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). 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 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). 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) (the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself). Cf. Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991)(en banc) (implicit in a defendant's assertion of the right to self-representation is a valid waiver of the right to counsel); Goffney v. State, 843 S.W.2d 583,...

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