Opinion
Nos. 04-06-00338-CR, 04-06-00339-CR
Delivered and Filed: April 25, 2007. DO NOT PUBLISH.
Appealed from the 226th Judicial District Court, Bexar County, Texas, Trial Court Nos. 2005-CR-3778, 2005-CR-3779, Honorable Sid L. Harle, Judge Presiding.
Sitting: ALMA L. LóPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice. Opinion by: Alma L. López, Chief Justice.
MEMORANDUM OPINION
Renee Louise Haley was convicted by a jury of retaliation and filing a fraudulent financial statement. On appeal, Haley contends that the trial court erred when it: (1) granted her request to represent herself; and (2) failed to instruct the jury that a unanimous verdict was required for each alleged offense. We affirm the trial court's judgments.
The style of this appeal is based on the style of the trial court's judgments, in which appellant's name is spelled Renee "Haley." However, we note that the record indicates that the correct spelling of appellant's name is Renee "Halay."
Self-Representation
In her first point of error, Haley asserts that the trial court erred in granting her request to represent herself and in failing to appoint stand-by counsel to assist her. For an accused to represent herself, she must knowingly and intelligently waive her right to counsel. Faretta v. California, 422 U.S. 806, 835 (1975). A trial court need not follow a formulaic line of questioning to establish a knowing and intelligent waiver. Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App. 1991); Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App. 1984). The only requirement is that the record contain proper admonishments and any necessary inquiries of the defendant so that the trial court can make an assessment of the defendant's knowing exercise of the right to defend herself. Burgess, 816 S.W.2d at 428; see also Faretta, 422 U.S. at 835-36. At a pre-trial hearing in this case, Haley indicated to the trial court that she did not want to be represented by her court-appointed attorney and that she wanted to represent herself. The following exchange then occurred:Court: What I want to talk about, [Haley], is you've indicated you want to represent yourself, which you're absolutely entitled to do. I really can't recommend it under the law because these are serious charges. You understand that if you do represent yourself, you'll have to be treated just like any other counsel. You'll have to know when to object, you'll have to know when to preserve error, you will have to know how to keep out evidence that should not come in against you, you will have to know how to cross-examine witnesses and do it effectively, and under the law correctly. And if there's impeachment that is available, you'll have to have that available and ask the appropriate question in the appropriate form. It does require some legal training, and I certainly cannot recommend it. And I certainly recommend you avail yourself of the assistance of counsel, and the only counsel I can appoint to represent you is one that is licensed by the State of Texas to practice law. I'm willing to do that. As a matter of fact, I have done that with [Haley's current appointed counsel]. But you've indicated that you don't want that and you want to represent yourself; is that right?
Haley: Yes, yes.The court also inquired as to Haley's educational background, history of mental illness, work history, and trial experience. In addition, the court asked the prosecutor to state the punishment ranges for each of the charges, and the court reiterated the punishment ranges once again later in the hearing. The court also explained to Haley the meaning of stand-by counsel and stated that the court could appoint stand-by counsel to advise her throughout the trial. Haley stated that she did not want stand-by counsel. The court repeated its admonishments once again later in the hearing and stated that it was important that Haley know what she was doing because the court could not give her special treatment. Haley stated that she still wanted to represent herself. The following day, the court held another pre-trial hearing. Haley indicated that she was at the hearing by special appearance only and that she could not proceed "without assistance of counsel." The court offered to appoint an attorney, but Haley stated that she did not want a licensed attorney. She stated that Black's Law Dictionary differentiated between an attorney and "assistance of counsel." Throughout the hearing, she continued to insist that she be given "assistance of counsel" and repeatedly refused an attorney or a stand-by attorney. Then, at the beginning of trial, the State read the indictment and the court asked Haley to enter a plea. Haley again repeatedly insisted on "assistance of counsel" but refused a "bar-card attorney." The court entered a plea of not guilty on behalf of Haley and proceeded to trial with Haley representing herself. An accused cannot manipulate her right to counsel so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. See Hubbard v. State, 739 S.W.2d 341, 344 (Tex.Crim.App. 1987); Halliburton v. State, 928 S.W.2d 650, 651 (Tex.App.-San Antonio 1996, writ ref'd). Here, Haley refused to accept her court-appointed attorney and expressed a desire to represent herself. She also repeatedly refused the trial court's offers to appoint her another licensed attorney. She made it very clear that she would accept only "assistance of counsel" and not a licensed attorney. A trial court is under no duty to search until it finds an attorney agreeable to a defendant. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. [Panel Op.] 1982). A court also cannot appoint someone who is not a licensed attorney. Tex. Gov't Code Ann. ?81.102 (Vernon 2005) (stating that a person may not practice law in Texas unless the person is a member of the state bar). Thus, Haley forced the court to choose between appointing a person not licensed to practice law, which it could not do, and allowing her to represent herself. The court had already extensively admonished Haley about the dangers of self-representation, and it is well-settled that the types of admonishments and inquiries given to Haley in this case are sufficient. See, e.g., Burgess, 816 S.W.2d at 427, 429; Johnson v. State, 760 S.W.2d 277, 278-79 (Tex.Crim.App. 1988); Blankenship, 673 S.W.2d at 583; Ford v. State, 870 S.W.2d 155, 158 (Tex.App.-San Antonio 1993, writ ref'd). Therefore, Haley made an effective waiver of counsel, and the court did not err in allowing her to represent herself. See Halliburton, 928 S.W.2d at 652 (holding that court did not err in granting defendant's request to represent himself where court made defendant choose between self-representation and current court-appointed attorney who defendant found unacceptable). Haley also provides several examples of her own alleged ineffective assistance of counsel as support for her proposition that the court should have at least appointed stand-by counsel. However, when a defendant elects to represent herself, she cannot complain that the quality of her own defense amounted to a denial of effective assistance of counsel. Martin v. State, 630 S.W.2d 952, 956-57 (Tex.Crim.App. 1982). Thus, because Haley repeatedly refused the appointment of a licensed attorney in any capacity, including as stand-by counsel, she effectively invoked her right of self-representation and cannot now complain of her own ineffective assistance. Haley also argues that the trial court erred when it did not require her to sign a form waiving her right to counsel. However, the written waiver set forth in article 1.051(g) of the Texas Code of Criminal Procedure is not mandatory. Burgess, 816 S.W.2d at 431; Halliburton, 928 S.W.2d at 653. All that is required is that the record is sufficient for the reviewing court to make an assessment that the defendant was made aware of the dangers of self-representation. Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App. 1992); Halliburton, 928 S.W.2d at 653. We have already concluded that the record shows sufficient admonishments. Therefore, the trial court did not err in not requiring Haley to sign the form.Jury Charge In her second point of error, Haley contends that her constitutional and statutory rights to a unanimous jury verdict were violated when the court failed to instruct the jury that a unanimous verdict was required for both of the alleged offenses. In analyzing a jury-charge complaint, we determine: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App. 2005). Haley was charged with two offenses: retaliation and filing a fraudulent financial statement. Each of the alleged offenses was set forth in its own indictment. The jury also received a separate set of instructions and a separate verdict form for each alleged offense. Haley argues that because each jury charge did not specifically instruct the jury to reach a unanimous verdict on each alleged offense, the jury could have mistakenly believed that it could reach a less than unanimous verdict on each offense as long as its decision was unanimous as to both offenses. That is, Haley argues that the jurors could have found her guilty of both offenses based on six jurors finding her guilty of retaliation and six jurors finding her guilty of filing a fraudulent financial statement. In support of her argument, Haley cites Francis v. State, 36 S.W.3d 121 (Tex.Crim.App. 2000), in which the court of criminal appeals held that the trial court improperly allowed a less than unanimous verdict by submitting a jury charge with two different offenses set forth in the disjunctive. The court of criminal appeals later explained in Ngo that multiple offenses could be submitted in the disjunctive as long as the charge included an instruction that the jury was required to reach a unanimous verdict for each offense. 175 S.W.3d at 749. This case is distinguishable from Francis and Ngo because here, the two different offenses were not submitted in the disjunctive. As previously stated, each alleged offense was set forth in its own jury charge and was accompanied with its own verdict form. In addition, during jury selection, the trial court explained that the two cases were being tried together but that "each case [was] being tried independently at the same time." The court further explained that the jury would receive separate charges and that there would be separate verdicts in each case. Also, just before the court read each of the charges to the jury near the end of trial, the court reminded the jury that there were two separate indictments in the case, and that "[e]ven though they were tried together, they are individual charges separate and apart for purposes of reaching a verdict." Finally, after the jury returned with verdicts but before the verdicts were announced, the trial court specifically asked the presiding juror if the verdict was unanimous "in each case," and the presiding juror answered, "Yes, sir." Because the trial court explained the separate nature of the two alleged offenses and because the jury charges and verdict forms were submitted separately to the jury, we conclude that there was no error in the charges. We also note that even if there were error in the charges, the error was harmless because the presiding juror confirmed that the verdicts were unanimous in each case. We therefore overrule Haley's second point of error.