Opinion
No. 14-06-00127-CR
March 13, 2007. DO NOT PUBLISH. C TEX. R. APP. P. 47.2(B).
Appeal from the 248th District Court Harris County, Texas, Trial Court Cause No. 1028187.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
OPINION
Appellant, Jacourrie DeWayne Finley, appeals from his conviction for third degree felony theft. A jury found him guilty, and the trial court sentenced him to sixteen years in prison. In six issues, appellant contends that (1) the trial court erred in failing to have appellant sign a written waiver of his right to counsel; (2) the trial court erred in failing to adequately admonish appellant of the dangers and disadvantages of self-representation; (3) the trial court erred in refusing to provide counsel when appellant attempted to waive his right to self-representation; (4) appellant's motion to recuse the trial judge should have been granted because the judge was partial, biased, and prejudiced against him; (5) a witness testified that appellant was on probation, thus impeaching appellant before he testified; and (6) the trial judge made inflammatory and harmful comments to appellant in front of the jury. We affirm.
Background
Appellant was charged with "identity theft" from several complainants in the aggregate amount of greater than $20,000 but less than $100,000. Prior to trial, appellant waived his right to counsel and asserted his right to self-representation. The trial court held a hearing on the matter and granted appellant's requests. Subsequently, at the beginning of jury voir dire, appellant stated that he no longer wished to represent himself and instead wanted counsel to represent him. The trial court denied this request, and trial proceeded with appellant representing himself. One morning during trial, appellant told the judge that he was having trouble seeing out of one of his eyes. The judge permitted appellant to move so that he might be able to see the witnesses better. Later, appellant again complained that he was having trouble seeing. The judge initially refused to halt the proceedings and again told appellant that he could move in order to see the witnesses better. At lunchtime, however, the court recessed the trial for the remainder of the day so that appellant could receive medical attention. Appellant subsequently filed a motion to recuse the judge, alleging that the judge was partial, biased, and prejudiced against him because she did not permit him prompt medical attention regarding his eye. The motion was heard and denied by a different appointed judge. Also during trial, while appellant was cross-examining his former landlord, the witness gave a long, unresponsive answer that included a suggestion that appellant had been on parole at one time. After the conclusion of the witness's testimony (and after the jury was excused for the day), appellant requested that the judge instruct the jury to disregard. The next morning, the judge instructed the jury to disregard the witness's answer. Additionally, at one point during appellant's cross-examination of a witness, the trial judge called the parties to the bench and admonished appellant for asking questions that called for hearsay. When appellant returned to counsel table and asked his next question, the judge stated: "That's the type of question that's improper and we're not going to spend all day doing that. I just advised you of that. Improper hearsay information." Appellant did not object to the judge's comments. The jury found appellant guilty as charged, and after finding allegations in an enhancement paragraph to be true, the trial court sentenced him to sixteen years in prison.Written Waiver
In his first issue, appellant contends that the trial court erred in failing to have him sign a written waiver of his right to counsel. Specifically, appellant contends that article 1.051(g) of the Texas Code of Criminal Procedure requires that a defendant's waiver of the right to counsel must be in writing. TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (Vernon 2005). The Court of Criminal Appeals has expressly held otherwise. See Burgess v. State, 816 S.W.2d 424, 429-31 (Tex.Crim.App. 1991) ("[W]e hold that when an accused affirmatively asserts his right to self Yuml; representation . . ., a written waiver of the right to counsel is not required under [article 1.051]."); see also 42 George E. Dix Robert O. Dawson, Texas Practice: Criminal Practice and Procedure, § 24.26 (2d ed. 2001) (discussing Burgess). Appellant here waived counsel in conjunction with an affirmative assertion of his right to self-representation. Accordingly, under Burgess, we overrule appellant's first issue.Admonishments
In his second issue, appellant contends that the trial court erred in failing to provide adequate admonishments on the dangers and disadvantages of self-representation. Before a defendant invokes the right to self Ÿ representation, he or she should be made aware of the dangers and disadvantages of self Yuml; representation such that the record establishes a choice "made with his eyes open." Faretta v. California, 422 U.S. 806, 835 (1975). Faretta does not mandate a formulaic inquiry concerning a defendant's age, education, background, or previous mental health history. Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App. 1984). The trial court must make, however, proper admonishments concerning pro se representation and sufficient inquiries to assess whether the defendant is making a knowing exercise of the right to defend himself. Id. Viewed from the appellate standpoint, the record must reflect that the defendant was made aware of the dangers and disadvantages of self Yuml; representation and, thus, that he intelligently and understandingly rejected the assistance of counsel. Goffney v. State, 843 S.W.2d 583, 584-85 (Tex.Crim.App. 1992). In his brief, appellant states that[t]he trial court only asked the Appellant whether he had any formal legal training (which Appellant had not), whether he had any experience in self representation in any criminal cases (which Appellant had only once), why Appellant did not want an appointed lawyer, and if Appellant felt he had "sufficient knowledge" to represent himself, and then announced that he [sic] would allow Appellant to go forward and represent himself.This is an incomplete representation of the trial court's inquiry and admonishments. After appellant indicated a desire to represent himself, the court queried appellant and admonished him at some length. The judge began by telling appellant that she did not think it was smart for a defendant to represent him or herself. She inquired of appellant exactly why he wanted to represent himself. She explained at length that while sometimes defendants don't like hearing what appointed counsel has to say, counsel may just be truthfully analyzing the strength of the case against the defendant. She also informed appellant that in her experience, defendants who are represented by counsel have a better chance of being found not guilty or of getting a lesser sentence than defendants who represent themselves. The judge asked appellant his age (35), his level of education (graduated from New York University with a business degree), his prior employment (included seven years with Citibank), whether he had ever been treated for mental illness (no), whether he had ever represented himself (yes, in a month-and-a-half-long federal fraud trial), and whether he had participated in any other trials with counsel (yes, a two-and-a-half-week-long state fraud trial in which the jury found him not guilty). She also asked him whether he had learned anything about the Federal Rules of Evidence and whether he understood that there were differences between the Federal Rules and Texas Rules; he answered "yes" to both questions. She asked him whether he was familiar with the level and punishment ranges of the charged offenses, and he indicated that he was. He also showed a knowledge regarding possible enhancement of the punishment range. She told him several times that he would receive no favors from the court by choosing self-representation and that the prosecution might attempt to exploit his lack of knowledge. She further grilled him at length regarding various nuances of the evidentiary rules. She told him that he could conceivably be found guilty simply because he did not know how to ask a question properly or because he did not know the correct objection to make. She told him that he would not be able to complain on appeal that he had received ineffective representation. Lastly, she asked him if he was familiar with various rules, procedures, and strategies relating to picking a jury. At the conclusion of this exchange, appellant asserted his right to self-representation. Appellant does not suggest any additional questions that the judge should have asked or any additional information the judge should have imparted. On this record, we find that the judge thoroughly questioned and admonished appellant regarding his knowledge and experience and the pitfalls of self-representation. Accordingly, we overrule appellant's second issue.
Waiver of Self-Representation
In his third issue, appellant contends that the trial court erred in refusing to provide him with counsel when he attempted to revoke his waiver of counsel at the beginning of voir dire. Appellant waived counsel and asserted his right to self-representation on July 26, 2005. On January 30, 2006, a venire panel was seated, and the judge began talking to them. At that point, appellant expressed confusion regarding who would determine punishment if he was found guilty. Ultimately, during a bench conference, appellant asked the judge to "kick [him] out of court" and stated "I give up my right to represent myself. I can't do this." The judge told appellant that she was not going to do that, instructed him to take a seat, and continued with voir dire. Appellant contends that in refusing to grant his request to withdraw his waiver of the right to counsel, the trial judge violated his United States and Texas constitutional rights to counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. In Medley v. State, 47 S.W.3d 17 (Tex.App.-Amarillo 2000, pet. ref'd), cert. denied, 126 S. Ct. 621 (2005), the Amarillo Court of appeals dealt with a similar request made on the day that trial was to begin. In analyzing the issue, the court looked to the Court of Criminal Appeals' opinion in Marquez v. State, 921 S.W.2d 217 (Tex.Crim.App. 1996) (plurality op.). Although Marquez specifically involved a last-minute assertion of a defendant's right to a jury trial, the Medley court found its analysis applicable to last minute assertions of the right to counsel. Medley, 47 S.W.3d at 24. We agree. In Marquez, the Court first noted that even for constitutional claims, the party seeking to change the status quo bears the burden of showing facts entitling him to relief. 921 S.W.2d at 222. Consequently, a criminal defendant who has waived a right but then seeks to reclaim that right must show that he or she revoked the waiver sufficiently in advance of trial so that it would not (1) interfere with the orderly administration of court business, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the State. Id. at 223; Medley 47 S.W.2d at 24. Any showing by the defendant may be rebutted by the State, the trial court, or the record itself. Marquez, 921 S.W.2d at 223; Medley, 47 S.W.3d at 24. The trial court's ruling on the reclamation of a waived right is reviewed under an abuse of discretion standard. Marquez, 921 S.W.2d at 223. The record in Medley demonstrated that (1) the defendant had not caused or sought any delays in the proceedings prior to his waiver of his right to self-representation; in fact, the defendant had indicated a desire to speed the process along; (2) the defendant's standby counsel had been his trial counsel prior to the defendant's waiver of his right to counsel and had been actively involved in the case throughout; and (3) the defendant did not request any postponement related to his request to reclaim his right to counsel, and there was no indication standby counsel was unwilling or unprepared to try the case immediately. Medley, 47 S.W.3d at 24-25. Based on these facts, the court reversed the conviction and ordered a new trial. Id. at 25-26. Here, the record demonstrates that appellant requested removal of his original standby counsel (and former trial counsel) on November 8, 2005. Appellant then did not request new standby counsel, and new standby counsel was not appointed, until the start of trial on January 30, 2006. Thus, it is very unlikely that standby counsel would have been willing or prepared to try the case immediately. See id. at 25; see also United States v. Taylor, 933 F.2d 307, 311 (5th Cir. 1991) (holding that trial court erred in refusing defendant's request for counsel during sentencing phase where standby counsel was present and had participated in guilt/innocence phase). The evidence regarding earlier delays is not very revealing. The record shows that in a letter to the judge, appellant requested more time to prepare for trial, but he objected in a separate letter to the fact that trial had been rescheduled. Although the case was reset numerous times, there is little explanation in the record. At the beginning of voir dire, when appellant indicated his desire for counsel, the judge explained to him that the case had been set for trial for seven months and that she had told him the week before that they were going to pick a jury and proceed to trial on that date. Although appellant did not explicitly request a continuance on the day of trial, he did ask the judge to "kick [him] out of court" and providing counsel at that point certainly would have resulted in a delay in order for new counsel to become acquainted with the case. Accordingly, this case is distinguishable from the facts in Medley. In short, unlike the defendant in Medley, appellant here did not overcome his burden of showing that his reassertion of the right to counsel would not have (1) interfered with the orderly administration of the court's business, (2) resulted in unnecessary delay or inconvenience to witnesses, or (3) prejudiced the State. Therefore, we cannot say that the trial court abused its discretion in refusing to grant appellant's request for counsel. We overrule appellant's third issue.Motion to Recuse
In his fourth issue, appellant contends that his motion to recuse the trial judge should have been granted because the judge was partial, biased, and prejudiced against him. Specifically, appellant asserts that the trial judge refused to allow him medical treatment for a "severe left eye infection" impacting his ability to observe witnesses during trial. The record reflects that during trial, before the first witness took the stand on February 1, 2006, appellant asked if he could approach the bench. When permitted to do so, appellant told the judge that he could not see out of his left eye. He said that he thought it was caused by pollen but was not sure. The judge suggested that appellant use some water and a tissue on the eye and sit closer to the witnesses in order to see them better. Appellant agreed. When the prosecutor passed the witness, after the equivalent of 36 record pages of testimony, appellant again asked to approach the bench. Appellant then told the judge that his eye problem was getting worse and that he could not see the witness out of his left eye. Appellant stated "so that the record is clear, my eye is obviously continuing to water and it's red." He requested that the judge "let [him] get something for it." The judge told appellant that he could move to where he could see the witness better but that they were not going to take a break at that point. She said that maybe he could get some drops for it during the lunch break. She also said "[f]or purposes of the record, it looks like you have allergies." Appellant cross-examined the witness for the equivalent of eleven record pages before the proceedings recessed for lunch. After lunch, the judge dismissed the jury for the remainder of the day so that appellant could seek medical attention. When trial began again the next day, nothing was said on the record about appellant's eye condition, and appellant continued his cross-examination of the witness. That same day, a hearing was held before a different presiding judge on appellant's motion to recuse the trial judge. During this hearing, the court reporter and prosecutor testified to events in similar detail to those described above. Stand-by counsel for appellant, however, testified that appellant may have requested medical attention as early as the first bench conference and that the judge refused to stop the proceedings so he could be taken to the jail for treatment. During cross-examination by the prosecutor, counsel acknowledged that prior to the day on which appellant had the eye problem, he had been wearing glasses, but on that day he was wearing contact lenses. He also remembered appellant's saying at one point that his problem might be related to the contact lenses. Appellant also testified, stating that he had difficulty with his eye from the time he woke up that morning, before he put in his contact lenses. He said that it may have been due to a pollen allergy. He said that the eye began to hurt and at some point he realized that he could not see out of the eye at all. Once in court, he informed the judge and requested that she allow him to return to the jail to seek medical attention, but she refused. He said that it might have interfered with the way he questioned the witness, but he could not be sure. He was taken to see a doctor by the bailiff, and the doctor initially diagnosed him with acute vision loss in his left eye. According to appellant, the trial judge then called the doctor and told the doctor that appellant had been trying to delay the proceedings. He testified that he was subsequently taken to an emergency room and then released without a diagnosis. He said that at the time of the hearing, he was still having problems with the eye but could now see out of it. In both criminal and civil cases, motions to recuse the trial judge are governed by rules 18a and 18b of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 18a, 18b; see also Wesbrook v. State, 29 S.W.3d 103, 120 (Tex.Crim.App. 2000). We review the denial of a motion to recuse under an abuse of discretion standard. TEX. R. CIV. P. 18a(f). Thus, we will not reverse a ruling on the motion if it is within the zone of reasonable disagreement. Wesbrook, 29 S.W.3d at 120-21. The impartiality of a trial judge is presumed, and the defendant has the burden of rebutting this presumption. Id. at 121. The grounds upon which recusal may be based include, among others: (1) when the judge's impartiality might reasonably be questioned, and (2) when the judge has a personal bias or prejudice concerning the subject matter of the case or a party. TEX. R. CIV. P. 18b(2)(a), (b). Generally, to merit recusal, partiality or bias must stem from an extrajudicial source and affect the judge's opinion on the merits of the case. See Roman v. State, 145 S.W.3d 316, 321 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966), and Kemp v. State, 846 S.W.2d 289, 305-06 (Tex.Crim.App. 1992)). Absent proof of an extra-judicial source, the only proper basis for recusal on grounds of partiality or bias is an indication of a high degree of favoritism or antagonism. Id. at 322. Furthermore, partiality or bias may only be a ground for recusal when it is of such a nature and extent as to deny the movant due process of law. See Kemp, 846 S.W.2d at 305. The test is whether a reasonable person, knowing all of the circumstances involved, would have a reasonable doubt as to the impartiality of the trial judge. Id.; Burkett v. State, 196 S.W.3d 892, 896 (Tex.App.-Texarkana 2006, no pet.). Here, the record demonstrates that when appellant first approached the bench regarding his eye condition, the judge attempted to help appellant by providing water and a tissue and by allowing him to move closer. When appellant approached the second time, the trial judge refused to halt the proceedings to allow him to seek medical attention. Appellant then cross-examined a witness for the equivalent of eleven record pages before the judge recessed for lunch and permitted appellant to seek medical attention. The judge subsequently recessed the trial until the next morning, at which time appellant appeared and made no mention of his eye condition on the record. Appellant does not cite to any evidence demonstrating that any actions by the judge stemmed from an extra-judicial source. The judge stated on the record that appellant's eye condition appeared to result from allergies. Appellant testified at the recusal hearing that he could not see out of his left eye on the day in question. However, as fact-finder, the judge presiding over the recusal hearing was not required to accept as true appellant's own testimony regarding the severity of the eye condition. See Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 375 (Tex.App.-Dallas 2005, no pet.). Apart from appellant's assertions, there is no evidence in the record that he was unable to see out of his eye or that the condition affected his ability to view the witnesses. Given the lack of evidence concerning the nature of appellant's eye condition and the fact that the trial judge only required appellant to examine a witness for a relatively brief period of time before allowing him to seek medical attention and recessing trial for the day, we find that appellant failed to demonstrate that any bias, prejudice, or partiality on the part of the trial judge stemmed from an extrajudicial source, demonstrated a high degree of favoritism or antagonism, or was of such a nature and extent as to deny the movant due process of law. Accordingly, we cannot say that the judge ruling on the motion to recuse abused her discretion in denying the motion. We overrule appellant's fourth issue.Impeachment Evidence
In his fifth issue, appellant complains that a prosecution witness testified during cross-examination that appellant was on probation. He asserts that the nonresponsive testimony impeached him by attacking his character before he even testified. See generally TEX. R. EVID. 404(a) (governing general use of character evidence), 404(b) (governing evidence of other crimes), 609(a) (governing impeachment by evidence of prior conviction). The testimony in question occurred while appellant was cross-examining his former landlord about whether the landlord possessed a key to appellant's mailbox.A No, I did not have the key.
Q Do you recall telling me to leave your check in the mail and you would pick it up?
A My check? I didCI had a check from my previous work that went there, but prior to you living there or you moving there, my friend was living there, so I would just get my check from there.
I did call you because I went to check for my statements that came out and for my 04 taxes, okay, 04 statements. And last check that I received and that was missing and I called you because I found out when I went into the apartment that you were on probation
THE COURT: Excuse me, let's wait. I'm not sure what the next answer is. Ask a new question.
MR. FINLEY: Yes, Your Honor.
Q (BY MR. FINLEY) Did you give me a key to the mailbox?
A Yes, you had a key to the mailbox in the apartment.
Q Where did you get the key from?
A Where did I get the key from?
Q Yes.
A From the previous tenants that was there. [sic]
MR. FINLEY: Pass the witness, Your Honor.Shortly thereafter, the judge excused the jury for the day. The following exchange then occurred:
MR. FINLEY: I request tomorrow that you instruct the jury about that.
[THE PROSECUTOR]: It's your question.
MR. FINLEY: I didn't ask if he found out I went to prison. It's not like I opened the door.
THE COURT: Actually I didn't hear it. I was guessing that's what he was going to say, but I thought I stopped him in time.The judge then recessed for the day. The next morning, the judge and counsel again discussed the situation, and the court instructed the jury to disregard as nonresponsive the witness's statement regarding tax statements, going into appellant's apartment, and "those types of things." Without further objection or request, appellant then called his next witness. In order to preserve error for appeal, a party must make a timely and sufficiently explicit request, objection, or motion. TEX. R. APP. P. 33.1. By failing to object when the witness made the statement regarding probation, appellant failed to preserve the issue for appeal. See Lagrone v. State, 942 S.W.2d 602, 617-18 (Tex.Crim.App. 1997) (holding that defense counsel failed to make timely objection when he waited until after prosecutor had passed the witness). Furthermore, appellant requested that the court instruct the jury to disregard the witness's statement and the trial court did so. Appellant did not then request a mistrial. Because appellant did not pursue his objection until he obtained an adverse ruling, he may not complain about the trial court's actions on appeal. See Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim.App. 1985) ("Appellant must obtain an adverse ruling in order to preserve a matter for review."). Accordingly, we overrule appellant's fifth issue.
Judge's Comment
In his sixth issue, appellant complains that the judge made inflammatory and harmful comments to appellant in front of the jury. During appellant's cross-examination of one of the investigating officers, the judge called appellant and the prosecutor to the bench. The judge then instructed appellant that certain of his questions called for hearsay and were therefore improper. Appellant returned to counsel table and asked another question:Q (BY MR. FINLEY) Detective Ester, did you learn from your investigation how many times the person that Ms. Godine identified came to the mailbox?
THE COURT: That's the type of question that's improper and we're not going to spend all day doing that. I just advised you of that. Improper hearsay information.Appellant then continued questioning the witness. Article 38.05 of the Texas Code of Criminal Procedure states:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979). A judge improperly comments on the weight of the evidence when he or she makes a statement that implies approval of the State's argument, indicates disbelief in the defense's position, or diminishes the credibility of the defense's approach to the case. Simon v. State, 203 S.W.3d 581, 590 (Tex.App.-Houston [14th Dist.] 2006, no pet. h.). The rule against such comments is grounded in the fact that "[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved." Brown v. State, 122 S.W.3d 794, 798 (Tex.Crim.App. 2003) (quoting Lagrone v. State, 84 Tex.Crim. 609, 615, 209 S.W. 411, 415 (1919)). However, unless the judge's comments are so egregious as to amount to fundamental error of a constitutional dimension, a defendant must object in order to complain about them on appeal. See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001); see also TEX. R. APP. P. 33.1. Here, appellant did not object to the judge's comments. Appellant argues that the judge's comments were improper because they conveyed her opinion that appellant was guilty and indicated that appellant was wasting everyone's time with his cross-examination. We disagree. Although the judge's comments conveyed her opinion regarding the propriety of appellant's questions, they did not indicate the judge's opinion regarding the strength of appellant's case as a whole. See In re J.G., 195 S.W.3d 161, 177-79 (Tex.App.-San Antonio 2006, no pet.). Further, while the judge's statement that "we're not going to spend all day doing that" may have expressed some irritation with appellant, it does not rise to the level of "fundamental error of a constitutional dimension." See Jasper, 61 S.W.3d at 421; Murchison v. State, 93 S.W.3d 239, 261-62 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); Singleton v. State, 91 S.W.3d 342, 351 (Tex.App.-Texarkana 2002, no pet.). Accordingly, we overrule appellant's sixth issue. We affirm the trial court's judgment.