Opinion
No. 05-04-00604-CR
Opinion Filed March 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MB98-09400-C. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Yolanda Evette Ludd of misdemeanor theft by check, and the trial judge sentenced appellant to 150 days in the county jail, probated for nine months. In two points of error, appellant complains (1) her confession was obtained in violation of her right to counsel and (2) the trial judge violated her right to a fair trial by denying her request to remove the prosecutor from the case. We overrule both points of error and affirm. Appellant was charged by information with misdemeanor theft by check in connection with a $20.75 check to Minyards. At trial, the State's evidence included a written statement, signed by appellant, providing that she wrote the check knowing she did not have sufficient funds in her bank to cover it. The statement was obtained as part of an agreement reached with the Dallas County District Attorney's Office when appellant entered its Check Diversion Program in May 2002. Appellant sought to suppress the statement on the ground that it was obtained in violation of her Sixth Amendment right to counsel. Evidence at the suppression hearing and at trial showed the following. Casey Montemayor, an employee of the DA's office, testified she was assigned to the check division in May 2002 and was in charge of putting people into the Check Diversion Program. The program allows people who have written and passed bad checks to be put on a payment plan to make restitution on those checks. Once restitution is made, the DA's office either converts the theft by check case to a Class C misdemeanor issuance of a bad check (IBC) case that is filed in justice of the peace court or dismisses the case altogether. Appellant came to Montemayor's office wanting to pay off bad checks she had written. Montemayor testified she met with appellant and went over the documents. The documents comprised four pages: the Diversion Program Agreement, which contained appellant's "confession" of guilt; a list of six bad checks written by appellant, their dates, and amounts; the Miranda warnings; and a copy of appellant's driver's license. Montemayor began with the third page — appellant's warnings. Montemayor testified she read appellant her Miranda warnings and asked if she had any questions. Specificially, appellant was told she had the right to remain silent and that anything she said could be used against her in court. Montemayor also told appellant that she had the right to have an attorney present to advise her prior to and during any questioning, and that if she was unable to employ an attorney, she had the right to have one appointed to represent her. Montemayor also advised appellant that she could terminate the interview at any time. Montemayor said appellant understood these rights and signed her initials indicating that understanding. Appellant did not ask to terminate the interview. On the form, appellant indicated that she was not represented by an attorney on the the outstanding checks or any other criminal matter. Next, appellant looked over the list of checks to ensure the amounts and dates were correct. Total amount of restitution owed was $147.15, which included a $50 fee to the DA's office. Appellant signed the agreement, which included the following: "I acknowledge that I wrote all the checks on the attached list, attached hereto, and incorporated herein and I knew that I did not have sufficient funds in the bank at the time I wrote each check." Pursuant to the agreement, appellant was placed on a two-month payment plan; however, appellant did not make payments as scheduled. In April 2003, a warrant was issued on the checks. After appellant made bail and was released from jail, she returned to the DA's office and paid off the checks. Appellant said she then met with Nick Cariotis, who was the prosecutor on this case. According to appellant, Cariotis gave her three options: do jail time, take probation, or pay fines and court costs on a lesser offense in JP court. Although appellant testified that she thought the cases would be dismissed after she made restitution, she agreed to a case being filed in JP court to dispose of the matter. However, appellant did not pay the JP fine, and the State then prosecuted her on this Class B misdemeanor. The trial court determined that appellant had not validly waived her right to counsel because she was not admonished about the dangers and disadvantages of self-representation, but did not suppress appellant's statement. This appeal ensued. In her first point of error, appellant argues her Sixth Amendment right to counsel was violated for two reasons. First, she asserts that once her right to counsel attached, counsel had to be present for any waiver of that right to be effective. Second, she argues her waiver was invalid because she was not admonished about the disadvantages of self-representation as set out in article 1.051(g) of the Texas Code of Criminal Procedure. We disagree with both contentions, beginning with her first complaint. The Sixth Amendment provides that in all criminal prosecutions the accused shall enjoy the right to assistance of counsel for his defense. U.S. Const. amend. VI. This right attaches at the initiation of adversarial proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Brewer v. Williams, 430 U.S. 387, 398 (1977); Cobb v. State, 93 S.W.3d 1, 5 (Tex.Crim.App. 2000), rev'd on other grounds, 532 U.S. 162 (2001). Appellant argues she had been charged by information when she was interviewed by the district attorney's office and therefore enjoyed a Sixth Amendment right to counsel. She contends that any statement she made to the DA was inadmissible because any waiver of counsel she made was ineffective if not made in the presence of counsel. Appellant relies on Holloway v. State, 780 S.W.2d 787, 795 (Tex.Crim.App. 1989) to support her position. We agree that appellant's Sixth Amendment right to counsel had attached at the time she met with the DA's representative. We disagree, however, that Holloway is controlling. In Holloway, the police spoke to the defendant after he had been appointed counsel, and the defendant said he did not want an attorney and then made inculpatory statements. Holloway, 780 S.W.2d at 789. The court determined the defendant's unilateral waiver of his right to counsel was invalid despite his having received Miranda warnings where the Sixth Amendment right to counsel had attached and an attorney-client relationship had been established. Id. at 796. Here, appellant did not have an attorney at the time she waived her right to counsel; thus, we conclude Holloway does not apply. We therefore reject her first argument. Accompanying the right to counsel is the right to waive counsel and to represent one's self. See Faretta v. California, 422 U.S. 806, 807 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex.Crim.App. 2002). Appellant next argues her waiver was invalid because she was not admonished about the disadvantages of self-representation as set out in article 1.051(g) of the Texas Code of Criminal Procedure before meeting with the DA's representative. Article 1.051(g) requires a court to advise a defendant who wishes to "waive his right to counsel" of the dangers and disadvantages of self-representation. Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2004-05). The Texas Court of Criminal Appeals has considered whether a defendant's waiver of counsel was knowing and intelligently made when he was not admonished of the dangers and disadvantages of self-representation as required by Faretta. Hatten, 71 S.W.3d at 333-34. The Court ultimately concluded that the requirements of Faretta are not invoked by a misdemeanor defendant who waives his right to counsel and does not contest his guilt. Id. at 334. Although this was not a situation in which appellant was pleading guilty to the trial court, we nevertheless believe Hatten controls. We recognize that appellant did contest her guilt at trial, where she was represented by counsel. Her complaint, however, involves the point in time in which she first met with Montemayor about the Check Diversion Program. During that meeting, appellant indicated she wanted to make restitution on the checks and admitted her guilt. In addition, she signed a document waiving her right to counsel. Like the defendant in Hatten, appellant apparently wanted to dispose of her case while not contesting her guilt. Under these circumstances, we conclude article 1.051(g) did not require the trial court to admonish appellant, prior to her meeting with the DA's office about the check diversion program, about the dangers and disadvantages of self-representation. See State v. Finstad, 866 S.W.2d 815, 817 (Tex.App.-Waco 1993, pet. ref'd) (concluding that article 1.051(g) did not require court to admonish defendant about dangers and disadvantages of self-representation before approving waiver of right to counsel and accepting guilty or no-contest plea). In other words, "the issue is not whether the trial court admonished the accused of the dangers and disadvantages of self-representation (pursuant to Faretta), but rather whether there was a knowingly, voluntary, and intelligent waiver of counsel." Id. at 334 (citing Johnson v. State, 614 S.W.2d 116, 119 (Tex.Crim.App. 1981) (op. on reh'g)). Appellant's only argument is that she was entitled to article 1.051(g) admonishments; she does not make any other argument regarding her waiver of counsel. Nevertheless, we will review the record to determine whether her waiver was knowing and voluntary. The record shows that appellant was admonished that she had the right to have an attorney present to advise her prior to or during any questioning and that if she was unable to hire a lawyer, she had the right to have one appointed to represent her. After being advised of these rights, appellant filled out the form to represent that she did not have an attorney and did not want an attorney. There is nothing in the record to suggest that appellant was coerced or otherwise intimidated into waiving her right to counsel. Under these circumstances, we conclude appellant's waiver of counsel was knowing and voluntary. See Hatten v. State, 89 S.W.3d 160, 163 (Tex.App.-Texarkana 2002, no pet.) (op. on remand) (explaining that if defendant in misdemeanor case where guilt not contested signs a written waiver of counsel in court and there is no contradicting evidence or any evidence of coercion or intimidation, record is sufficient to support finding that waiver of counsel was valid). We overrule the first point of error. In her second point of error, appellant argues the trial court erred in failing to remove Cariotis as the prosecutor in this case. She argues that Cariotis was not only prosecutor but was also a material witness in the case with "regard to the events surrounding the confession," which was the State's only evidence of guilt. By failing to remove Cariotis as prosecutor, appellant contends he was denied a fair trial. Initially, we question whether appellant has adequately briefed this issue. She makes only passing reference to two cases and does not attempt to analyze the law developed in those cases. It appears she is relying on violations of rules of disciplinary conduct 3.08 and 3.09 as the basis for her complaint but other than one passing citation to these rules, she does not attempt to analyze the rules within the facts of this case. Even if we concluded appellant's issue was adequately briefed, we would not reverse. The evidence showed that Cariotis ran the check division of the DA's office and supervised its main witness at trial, Montemayor. Montemayor took appellant's "confession." During the suppression hearing, defense counsel attempted to call Cariotis as a witness:
[TRIAL COURT]: What would be the purpose?
[DEFENSE COUNSEL]: Well, he signed Defendant's Exhibit Number 3, which, I assume, he dealt with my client at some point. I don't really know how this thing works. But the point is that she was given some sort of promises, which I would contend are somewhat illusory, you know, as to what the consequences of signing off on this agreement are; and frankly, I'd like to know if the State breached those promises, because it seems like a year later after signing this agreement, they changed the terms of the deal by going out and filing these cases on her.Also, Your Honor, he's the one who was instructing Ms. Montemayor as to what these contracts meant, what these promises are, and I'd like to — I think I'm entitled to get into what promises were made to my client to get her to sign this agreement and confession. At that point, the trial judge asked defense counsel which statements he wanted to suppress, and defense counsel responded that he wanted the diversion agreement suppressed. The following then occurred:
[TRIAL COURT]: I understand. Now, does Mr. Cariotis's name appear anywhere on this particular document?
[DEFENSE COUNSEL]: His name does not, Your Honor.
[TRIAL COURT]: Do you have any reason to believe that Mr. Cariotis had any contact with [appellant] when she entered this agreement?
[DEFENSE COUNSEL]: I don't know.
[TRIAL COURT]: Well, without calling Mr. Cariotis as a witness, noting that he's obviously an officer of the Court, I'll just ask him, if that's acceptable to you.
Mr. Cariotis, did you have any dealings with [appellant] when she entered this agreement that's entitled, `Diversion Program Agreement?'
[CARIOTIS]: I did not. The only one that did was Casey Montemayor.
[TRIAL COURT]: That being the case, then, I fail to see how he would have any first-hand or relevant knowledge with regard to trying to suppress this particular document. Just because he was Ms. Montemayor's supervisor somewhere down the line, if you will, doesn't mean that he would be — his testimony or, if any, would be relevant for purposes of trying to suppress the diversion program agreement.
[DEFENSE COUNSEL]: Except that he may have been involved in writing this agreement.
[TRIAL COURT]: The agreement speaks for itself, so it doesn't really matter.The judge and defense counsel then discussed the holding of House v. State, 947 S.W.2d 251, 253 (Tex.Crim.App. 1997) and various disciplinary rules without the judge making any more rulings. Cariotis did not testify at the suppression hearing. During Montemayor's direct examination at trial, defense counsel moved to have Cariotis "recuse himself from this case since he is, obviously, susceptible to being a witness and puts my client at a disadvantage from having a representative of the DA's office talking about the elements of the offense in proving up their case through their own office." The judge denied the request but issued "parameters," instructing Montemayor not to testify to things told to her by Cariotis and instructing Cariotis not to elicit "from [Montemayor] things that you told her." During Cariotis's closing argument, defense counsel sought to re-open the case and call him as a witness. The judge denied the request. On appeal, appellant characterizes Cariotis as a "material witness," a person with "personal knowledge of the dealings with appellant," and as a "direct party with appellant during the course of negotiations resulting in the evidence submitted in front of the jury." Having reviewed the record, we cannot agree. There was no evidence that Cariotis had any direct knowledge that would bear on the question of appellant's guilt or innocence. He was not involved in the meeting between Montemayor and appellant that resulted in appellant signing the program diversion agreement. Although there is evidence Cariotis spoke with appellant at a later date, that meeting came long after appellant had signed the agreement. Under these circumstances, we cannot conclude the trial court erred in refusing to remove Cariotis as prosecutor in the case. We overrule the second point of error. We affirm the trial court's judgment.