Opinion
No. 11-07-00049-CR
Opinion filed July 25, 2008. DO NOT PUBLISH. SEE TEX. R. APP. P. 47.2(b).
On Appeal from the 42nd District Court, Taylor County, Texas, Trial Court Cause No. 22600A.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The jury convicted Randals Raymond Greer, appellant, of burglary of a habitation. The trial court assessed punishment at twelve years confinement. We affirm. In his sole issue on appeal, appellant contends that the trial court erred by violating his constitutional right to self-representation. An accused has a right to self-representation under the Sixth and Fourteenth Amendments to the United States Constitution. Faretta v. California, 422 U.S. 806, 818-20 (1975); Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App. 2008); Moore v. State, 999 S.W.2d 385, 396 (Tex.Crim.App. 1999). However, the right to self-representation does not attach until it has been clearly and unequivocally asserted. Funderburg v. State, 717 S.W.2d 637, 642 (Tex.Crim.App. 1986). On December 11, 2006, the trial court set this cause for trial on February 12, 2007. On the day of the trial setting, appellant's counsel filed a "pretrial motion to withdraw as attorney of record" and an "application for continuance." In the motion to withdraw, appellant's counsel stated that appellant had instructed him to withdraw, that appellant had failed to cooperate with him, and that "an irreconcilable conflict of personalities" existed between appellant and him. Appellant's counsel also stated that he reasonably believed appellant might desire to proceed pro se "if [appellant was] forced to proceed to trial with the undersigned as his counsel." In the application for continuance, appellant's counsel asserted that additional time would be necessary to prepare the case for trial if the trial court appointed other counsel to represent appellant or allowed appellant to proceed pro se. The trial court heard the motion to withdraw. Appellant's counsel called appellant as a witness. The following exchange took place:
Q. Randy, listen to me. I filed your motion to withdraw as your record B as your attorney of record. Do you remember telling me you didn't want me as your lawyer? Is that right, Randy?
A. Yes.
Q. Okay. You do or don't want me as your lawyer?
A. I don't.
. . . .
Q. But you've been writing me letters in the last 10 days where you've been pretty B very vehement and very insistent that I not be your lawyer. Is that right, Randy?
A. Of course. What do I need you for?Appellant's counsel did not ask appellant whether he wanted the trial court to appoint other counsel to represent him or whether he wanted to proceed pro se, and appellant did not provide any testimony on these issues. Appellant's counsel also called Ricky Felts as a witness. Felts testified that he owned and operated the Lighthouse Adult Day Care and that appellant had been a client of the Lighthouse. Felts said that, although he had attempted to persuade appellant to cooperate with his counsel, appellant had not cooperated with his counsel. Felts also said that appellant had increasing hostility toward his counsel. According to Felts, appellant thought that he could represent himself and that his counsel was "not really trying." The following exchange took place between appellant's counsel and Felts:
Q. All right. Has he talked to you about wanting to proceed with his case pro se; that is, acting as his own lawyer in the event that this Court will not give him a lawyer other than myself B
A. Yes.
Q. B on a court-appointed basis?
A. Yes.
. . . .
Q. Did he seem genuinely B genuine in his comments to you that he wanted to proceed as his own lawyer?
A. Yes.During cross-examination, Felts testified that appellant seemed to be more concerned with "removing [his counsel] and having someone else represent him" than he was about his upcoming trial. After the conclusion of evidence, appellant's counsel asserted that appellant desired to proceed pro se and that appellant had the right to defend himself. The trial court denied the motion to withdraw and the application for continuance. Appellant did not testify that he wanted to represent himself. Appellant's counsel did not state in the motion to withdraw or in the application for continuance that appellant wanted to represent himself. In the motion to withdraw, appellant's counsel merely indicated that appellant might want to represent himself instead of proceeding to trial "with the undersigned as his trial counsel." Similarly, Felts said that appellant had talked about wanting to represent himself if the trial court did not appoint another lawyer to represent him. The record demonstrates that appellant was unhappy with his counsel. However, appellant did not clearly and unequivocally assert his right to self-representation. Therefore, we overrule appellant's sole issue. We affirm the judgment of the trial court.