Opinion
No. 05-02-01372-CR
Opinion Filed August 18, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-15139-KM. AFFIRMED
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
OPINION
A jury convicted Rayland Ladon Tyner of aggravated robbery and assessed punishment at ninety-nine years in prison. In six issues, appellant complains (1) the jury's rejection of his duress defense was against the great weight and preponderance of the evidence, (2) he did not knowingly and intelligently waive his right to counsel, (3) the trial court erred in refusing to allow him to withdraw his waiver of counsel, (4) the trial court abused its discretion in requiring him to be shackled during voir dire, (5) the trial court erred in admitting harmful opinion testimony, and (6) the trial court erred in refusing to withdraw the case from the jury's consideration at punishment. We resolve all issues against appellant and affirm the trial court's judgment. Delauri Farmer was working at the Sonic Drive-In in Balch Springs when appellant entered, pointed a gun at her, and demanded, "Open the safe, Bitch." Farmer said appellant was "very angry" and had "no fear whatsoever." Farmer, terrified, moved to the safe but could not find the key to open it. Appellant held the gun against her temple and threatened to kill her. Farmer opened the petty cash drawer of the safe and tried to hand appellant the money, but appellant told her to put it in a bag. Farmer told a co-worker to get a bag but as she began to move out of appellant's eyesight, he angrily told her, "Don't move or I'll blow your fucking head off." Farmer found a bag and began sacking the money. At one point, she hesitated and appellant again warned her, "Hurry up, I'm not playing, I'll blow your fucking head off." During the robbery, appellant ordered the employees to get on the floor. As he was leaving, he pointed his gun at one worker as she lay on the floor and then kicked the metal part of the door, making a sound like a gun discharging. The worker screamed, and appellant left the building. Farmer told the employees to lock the doors, and she called the police. Just as the worker locked the doors, appellant returned. Angry that he could not reenter the building, appellant shook the door, hit it with the palm of his hand, and pointed the gun at the employees from outside. The police arrived and arrested appellant. At trial, appellant admitted committing the robbery at the Sonic but said he was forced to by rival drug dealers who threatened to harm his pregnant wife. Appellant said he was outside his apartment when three men ordered him into their vehicle. When he refused, the men told appellant they had his wife, who was eight months pregnant. Appellant, who recognized the driver as a man named "Quinn," got into the car. The men circled the apartment complex twice, and appellant said he saw that "they had my wife at the mailbox." Appellant asked the men to let his wife go, but they refused. Appellant, who admitted being a drug dealer, said the men were angered at his financial success and wanted him to stop dealing drugs on their turf. During the incident, appellant was armed, but he said his captors did not take his gun. He also had about $300 worth of cocaine that he snorted in front of his captors. Appellant said his purpose in snorting the cocaine was not to get high. Appellant thought the men were going to kill him and he believed the cocaine would keep his "heart pumping long enough" for an ambulance to reach him. Also, using the cocaine allowed him to use a mirror to see the two men seated in the back of the car. Appellant's abductors drove to Balch Springs and stopped near a wooded area. Appellant offered them his money and drugs, but the men wanted appellant "out of their way" so they set him up for robbery. The men gave appellant a mask and ordered him to commit the robbery at the Sonic Drive-In. Fearful that his wife and unborn child would be harmed, appellant went into the Sonic and told a woman, "I need your money." While he was inside, he saw Quinn standing outside watching him. Appellant was "very high" on cocaine and could not remember all that had happened. Once he got money, appellant walked out of the restaurant and saw his abductors' vehicle exit the parking lot. A police car immediately arrived and chased appellant into a dark, wooded area behind the restaurant. As the police car turned around, appellant ran back to the lighted area around the restaurant, because he did not want officers to think he was going to shoot them and get shot in return. When surrounded by the police, appellant said he laid down his gun. On cross-examination, appellant could not explain why violent drug dealers would not just kill him, instead of setting him up for a crime, other than to say other attempts on his life had failed. He also could not explain why his abductors allowed him to keep his gun during the entire ordeal. Nor could he explain why they did not take the $200 to $300 in cocaine that he had on him at the time. Although appellant admitted he could have faked the robbery and warned the Sonic employees to call the police, he did not because he was "high on drugs" and was "scared." Appellant's wife testified on his behalf. She said that on the night of the robbery, she felt like she was held against her will by some of appellant's associates at a party, although none of these persons ever verbally or physically threatened her. In his first issue, appellant raises a factual sufficiency challenge. He contends the jury's implicit rejection of his duress defense was so against the great weight and preponderance of the evidence that the guilty verdict was manifestly unjust. To establish the affirmative defense of duress, the defendant must prove by a preponderance of the evidence that he committed the offense "because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another." Tex. Pen. Code Ann. §§ 8.05(a) (duress); 2.04(d) (affirmative defense) (Vernon 2003). Compulsion "exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure." Id. at § 8.05(c). When a defendant has asserted an affirmative defense, a reviewing court considers all the evidence and determines whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App. 1996); Meraz v. State, 785 S.W.2d 146, 154 (Tex.Crim.App. 1990). While we are authorized to disagree with the jury's determination, any evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 6 (Tex.Crim.App. 2000). Appellant admitted committing the robbery of the Sonic at gunpoint but claimed he was forced to do it by rival drug dealers who threatened his life and those of his wife and unborn child. Appellant also testified these same violent drug dealers, for unknown reasons, allowed him to keep his gun and cocaine during the ordeal. In fact, appellant snorted so much cocaine with his captors that he was "discombobulated" at the restaurant. If, as appellant said, he was forced to commit the crime, it was reasonable for the jury to question why, since he was out of earshot of his captors, (1) he did not tell the Sonic employees his situation and ask them to call the police and (2) he repeatedly threatened to kill the employees as he pointed a gun at them. The jury could have concluded the eyewitnesses' testimony about appellant's demeanor was not consistent with a person acting under duress. For example, witnesses testified appellant called the manager a "bitch" and demanded she "open the safe." Twice he threatened employees that he would "blow your fucking head off" and angrily reacted when he returned to the restaurant, found it locked, and pointed the gun at employees inside. Witnesses described appellant as "very angry" and said he "had no fear." Having reviewed the evidence presented in this case, we cannot say the overwhelming weight of the evidence supports appellant's claim of duress. We resolve the first issue against appellant. In his second issue, appellant contends the trial court erred in allowing appellant to represent himself at trial. He complains he was "never specifically admonished as to the complexities of criminal procedure and his lack of knowledge of criminal law and procedure was demonstrated during the trial." He further argues his waiver of counsel was "conditional" because it was "contingent" on assistance from his former court-appointed counsel and was not a valid waiver. A defendant has a constitutional right to waive his right to counsel and represent himself at trial. See Faretta v. California, 422 U.S. 806, 818-21 (1975). As long as the defendant's decision to represent himself is knowingly and intelligently made, "his choice must be honored." Id. at 834; Blankenship v. State, 673 S.W.2d 578, 582 (Tex.Crim.App. 1984). The trial court's role is to advise the defendant of the dangers and disadvantages of self-representation so that the record will establish that "he knows what he is doing and his choice will be made with eyes open." Blankenship, 673 S.W.2d at 583 (quoting Faretta, 422 U.S. at 835). The admonishments should seek to ensure that the accused is aware of the practical disadvantages of representing himself, that there are technical rules of evidence and procedure, and that he will not be granted any special consideration solely because he asserted his pro se rights. Johnson v. State, 760 S.W.2d 277, 278 (Tex.Crim.App. 1988). Even though the trial court may disagree with the defendant's decision to represent himself, the court is not permitted to substitute its judgment on this issue for that of a defendant who has knowingly and voluntarily chosen to proceed pro se. That decision is the defendant's, who "must be allowed to represent himself `if he truly wants to do so.'" Id. at 584 (quoting Faretta, 422 U.S. at 817). The decision is made voluntarily if uncoerced. Collier v. State, 959 S.W.2d 621, 626 (Tex.Crim.App. 1997). In this case, appellant orally notified the trial court on the day jury selection began that he wanted to represent himself. When the trial court initially refused, appellant fired his court- appointed lawyer, Michael Byck, who assured the trial court appellant's decision was not made to delay trial. Appellant told the court he was a high school graduate and had completed two years of community college where he majored in criminal justice. Appellant said he understood the advantages and disadvantages of self-representation and said he understood the judge could not assist him with strategic, procedural, or evidentiary matters. When appellant asked to have Byck serve as "advisory counsel," the trial court informed appellant he did not have a right to hybrid counsel but that Byck would be allowed to sit in the back of the courtroom and advise him during breaks. However, the judge advised that he would not allow Byck to sit at counsel table. Appellant said he understood and still wanted to proceed pro se. The trial court advised appellant that he would hold him to the same standards as any lawyer and explained he could not and would not help him during the trial. Finally, the judge recommended appellant not represent himself. He warned that appellant would be giving up "many, many appellate rights" and further warned appellant that it would be "virtually impossible" to raise any claim of ineffective assistance of counsel. The judge also warned appellant that jurors may not look favorably on him representing himself and said he believed appellant would be "making a mistake." Appellant nevertheless maintained his right to self-representation, and the judge granted his request. We conclude the record establishes that appellant knew what he was doing in seeking to represent himself and did so "with eyes open." The trial court sufficiently admonished appellant about the dangers and disadvantages of self-representation and even told appellant his choice would be a "mistake." Although appellant complains he did not have the requisite technical knowledge, Faretta explained that technical legal knowledge is "not relevant to an assessment of [a defendant's] knowing exercise of the right to defend himself." Faretta, 422 U.S. at 836. The trial court advised appellant he would not and could not assist appellant in his defense. We reject his assertion that his waiver was "contingent" on having advisory counsel. Appellant sought, and the trial court allowed counsel to be available to appellant, and appellant was clearly aware of the conditions of this representation. The fact appellant wanted legal assistance does not dilute appellant's knowing and voluntary waiver. We resolve the second issue against appellant. In his third issue, appellant complains the trial court erred in not immediately granting his request to allow him to withdraw his waiver of the right to counsel. Again, we disagree. While a criminal defendant has the right to represent himself at trial under Faretta, Texas courts have held that a defendant may subsequently withdraw his waiver. See Medley v. State, 47 S.W.3d 17, 23 (Tex.App.-Amarillo 2000, pet. ref'd); Walker v. State, 962 S.W.2d 124, 127 (Tex.App.-Houston [1st Dis.] 1997, pet. ref'd). But, the defendant does not have the right to repeatedly alternate his position on the right to counsel and delay the trial or otherwise obstruct the orderly administration of justice. Medley, 47 S.W.3d at 23 (citing United States v. Pollani, 146 F.3d 269, 273 (5th Cir. 1998); United States v. Taylor, 933 F.2d 307, 311 (5th Cir.), cert. denied, 502 U.S. 883 (1991); Webb v. State, 533 S.W.2d 780, 784 (Tex.Crim.App. 1976)). The court of criminal appeals has held that, even for constitutional claims, generally, a party seeking to change the status quo bears the burden of showing facts entitling him to relief. Medley, 47 S.W.3d at 24 (citing Marquez, 921 S.W.2d at 222). A criminal defendant who waives an absolute right and seeks to reclaim that right occupies the status of one seeking to change the status quo. Marquez, 921 S.W.2d at 223 (waiver of jury trial). If the evidence presented by a defendant seeking to reclaim a right previously waived is rebutted by the State, the trial court, or the record, then the trial court does not abuse its discretion in refusing to allow the right to be reclaimed. Id. In seeking to reclaim a previously waived right to counsel, the record must show a request to revoke sufficiently in advance of trial, such that the granting of the request will not: (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to the witnesses, or (3) prejudice the State. Medley, 47 S.W.3d at 24. The trial court's decision as to the effect the reclamation of the right by the defendant would have on the orderly administration of justice will not be disturbed on appeal absent an abuse of discretion. Id. Before the trial court allowed appellant to withdraw his request to proceed pro se, and renamed Byck counsel of record, the record shows the trial court, on at least three other occasions, offered to allow appellant to withdraw his waiver of counsel, but appellant refused. Later, prior to appellant putting on his defense, appellant argued with the trial court about a witness he wanted to call who had not been subpoenaed. The trial court stated that he believed appellant was intentionally attempting to delay trial and said court-appointed counsel would take over. After an exchange between appellant and the trial court, appellant was allowed to continue as counsel. On the third day of trial, after appellant put on a portion of his defense, appellant suddenly announced he "would like to step down as my representative." The jury was excused, and, in a brief hearing, appellant said he wanted Byck to be allowed to reexamine witnesses that previously testified. The trial court denied that request. Byck advised appellant that he would "handle" the case, including who would be called as witnesses. Appellant ultimately decided that he would continue to represent himself. At that point, the trial court warned appellant that he was tired of appellant's "antics" and "dilatory tactics" and said there would be no more delays. Two days later, appellant again announced his intention to "step down." The trial court ultimately granted appellant's request to reinstate Byck at his attorney during the punishment phase of the trial. The State was preparing to offer into evidence appellant's prison disciplinary records when appellant suddenly asserted that he was "stepping down as my Counsel. I would like to speak to Mr. Byck's representation, but first I would like to counsel with my attorney." The trial court denied appellant's request, explaining that the trial was in its fifth day and the case was in the rebuttal portion of the State's case on punishment. Further, the trial court stated that it had given appellant "ample opportunity repeatedly during the week" . . . "so that we would not be delaying this." During testimony of the next State's witness, the State offered into evidence, and the trial court admitted, Dallas County Jail records pertaining to appellant. Again, appellant announced, "I step down as my counsel." The trial court retired the jury and the following occurred:
[TRIAL COURT]: Mr. Tyner, you've told me one or more times in the past you wanted to change and you changed your mind. Why have I any reason to believe after this recess you're not going to change your mind again?
[APPELLANT]: Like I say, I step down.
[TRIAL COURT]: All right. You're no longer the attorney-of-record in this matter.The trial court then named Byck attorney-of-record. It is clear from the record that the trial court believed appellant was merely attempting to delay the trial or obstruct the administration of justice. When appellant made the request a second time, only twenty-three pages later in the record, the trial court excused the jury, reconsidered appellant's request, and granted it. Given the circumstances in this case, we cannot conclude the trial court abused its discretion in initially denying appellant's request to withdraw his waiver of counsel. We resolve the third issue against appellant. In his fourth issue, appellant complains the trial court abused its discretion in requiring him wear leg irons during jury selection. He argues the trial court's action infringed on his right to the presumption of innocence. The record shows appellant was required to wear leg irons during voir dire, apparently because of a concern that he was violent. The trial court instructed the State and appellant to remain behind the counsel table during jury selection. After jury selection, appellant complained that he believed the jury saw the restraints. The next morning, the trial judge questioned jurors individually as to whether they observed any "security procedure" the day before that would compromise their impartiality as a juror. Each juror responded that he or she had not. Because none of the jurors saw any security measure that affected his or her ability to be impartial, we cannot conclude appellant is entitled to a new trial on this basis. We resolve the fourth issue against appellant. In his fifth point of error, appellant complains the trial court erred in admitting harmful opinion testimony that "appellant attempted to take hostages in the restaurant" in violation of Texas Rule of Evidence 701. At trial, appellant objected the testimony was speculation. Appellant's objection on appeal does not comport with his complaint below; thus, it is waived. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. 2003). Regardless, the trial court did not err in overruling the speculation objection. The officer was asked, "So, what are your thoughts when you see [appellant] heading back towards the Sonic?" The officer replied, "That he was going to go in and take hostages." The question did not ask for appellant's state of mind; rather, it asked for the officer's state of mind. While the testimony may have been inadmissible under some other theory, clearly it was not inadmissible as speculative evidence. We overrule the fifth point of error. In his sixth issue, appellant contends the trial court reversibly erred in refusing to allow him to withdraw the case from the jury's consideration at punishment in violation of article 37.07, section 2(b) of the code of criminal procedure. He maintains that because he did not execute a written election that the jury assess punishment, the trial court should have decided his punishment when he eventually made the request. This case was a retrial. The record shows that appellant orally notified the trial court prior to voir dire that he wanted the jury to assess punishment. At that time, Byck, appellant's court- appointed counsel, informed the court he had explained to appellant that he risked a higher punishment than the fifty-five years assessed at the first trial by going to a jury. Appellant maintained that he wanted "to go before the jury for my punishment." Thereafter, punishment was one of the issues addressed during voir dire. After the jury returned a guilty verdict but before punishment evidence was received, the trial court asked appellant if he wanted the jury "to continue with the matter of punishment." Appellant replied, "I want to be punished by the jury." After all evidence had been presented at punishment, Byck, who was then representing appellant, asked the court to remove punishment from the jury because appellant did not make such an election in writing. The trial court denied the request. Appellant's complaint is premised on the fact he did not execute a written election for the jury to assess punishment as required by statute. Even assuming it was error not to obtain a written election from appellant, we cannot say the trial court's failure to withdraw the case from the jury's consideration affected his substantial rights. See Tex.R.App.P. 44.2(b). Here, the record is clear that appellant, knowing the full range of punishment was available if a jury determined his punishment and against his counsel's advice, twice orally elected to have the jury make that decision, and the trial court acted on that choice. We note that appellant argues that if the trial court had assessed punishment, it would have been limited to no more than the fifty-five years originally assessed. On the contrary, a trial judge is not constitutionally precluded from imposing a new sentence, whether greater or less than the original sentence, in light of events that occur after the first trial that "may have thrown new light upon the defendant's `life, health, habits, conduct, and mental and moral propensities.'" See North Carolina v. Pearce, 395 U.S. 711, 722 (1969). However, the reasons for imposing a stricter sentence must affirmatively appear in the record. Id. at 726. Here, the State presented evidence at punishment that appellant stabbed a guard while incarcerated under his initial sentence. This is identifiable conduct on the part of appellant occurring after the time of his original sentencing proceeding that would have allowed the trial court to impose a stricter punishment than originally assessed. We overrule the sixth point of error. We affirm the trial court's judgment.