Opinion
No. 05-08-00153-CR
Opinion issued July 24, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F07-71101-WUY.
OPINION
Reginald Rydell Newton was convicted of aggravated robbery and sentenced to life in prison. He asserts three points of error, arguing that the trial court erred by (1) denying his request for a different defense attorney, (2) admitting certain hearsay testimony during the sentencing phase of the trial, and (3) ordering his sentence to run consecutively to certain other sentences. We affirm.
I. Background
Newton was indicted for the crime of aggravated robbery. He pleaded not guilty, and the case was tried to a jury. The evidence presented during the guilt-innocence phase of the trial tended to show that Newton and an accomplice robbed Sonya Bennett on December 6, 2006. The evidence also tended to show that Newton displayed and threatened Bennett with a knife during the robbery. The jury found Newton guilty. During the punishment phase of the trial, the State presented evidence that Newton also committed several other crimes against other victims on December 6, 2006. The jury sentenced Newton to life in prison and imposed a $10,000 fine. The State requested that the life sentence run consecutively to other sentences that had been imposed on Newton in other cases, and the trial court granted that request.II. Request for Different Counsel
In his first point of error, Newton asserts that the trial court abused its discretion by denying his request for replacement counsel due to a conflict of interest. Under that heading, he argues that the trial court erred (1) by not allowing Newton to demonstrate that a conflict existed and (2) by forcing him to choose between unwanted counsel and self-representation instead of appointing a different attorney to defend him.A.
Facts On the first day of trial, before jury selection, Newton's appointed attorney presented the trial judge with a document entitled "Declaration of Conflict Between Attorney and Client." The document itself does not appear in the appellate record, so we cannot determine the basis of the Declaration. The trial record contains a discussion relating to the Declaration. The judge's comments indicate Newton asserted his attorney was not prepared. Addressing Newton's attorney, the judge said, "I wonder if you'd put on the record what you've done as far as preparation in this case, since the defendant claims that you haven't prepared for this trial." The attorney described the actions he had taken, including meetings with Newton, meetings with his family members, and work with an investigator who looked for potential witnesses in the case. He also dealt with the prosecutors and reviewed transcripts of prior testimony to prepare for the case. After that, the following colloquy took place:THE COURT:
Okay and I note for the record that today is January 28th and we are set for trial today; that everybody knew that. Mr. Newton, you were advised last week about the State's recommendation in this case. You knew we were going to trial and you didn't say anything to me at that time. So this motion is not timely. I'll give you two choices: You can represent yourself and Mr. Maedgen as standby counsel, or you can continue with Mr. Maedgen as your lawyer. How do you want to proceed?
THE DEFENDANT:
(No response.)
THE COURT:
I would strongly recommend that you have Mr. Maedgen continue to represent you. Is that how you want to proceed?
THE DEFENDANT:
(Indicating.)
THE COURT:
Is that a yes?
THE DEFENDANT:
(Indicating.)
THE COURT:
Is that a yes?
THE DEFENDANT:
I'm not comfortable with that decision, but I've no other option.
THE COURT:
I'm not putting another lawyer on there. All right. Anything the parties want on this case?
. . .
THE COURT:
All right. So we're ready to bring the jury in. Let's bring them in. I will file your — — your motion.
The case then proceeded with jury selection.
B.
Denial of opportunity to present evidence
Newton's first argument is that the trial court did not allow him to develop evidence of a conflict of interest with his attorney. The State argues that he did not preserve error in the trial court. We agree with the State.
As the foregoing recitation of facts shows, the trial court conducted a hearing on Newton's request for replacement counsel. It was Newton's burden to prove that he was entitled to a change of counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. [Panel Op.] 1982). If he had evidence to present in support of his assertion of a conflict of interest, he had to bring that evidence to the court's attention. See Hill v. State, 686 S.W.2d 184, 187 (Tex.Crim.App. 1985) ("[I]n addition to making the court aware of his dissatisfaction with counsel and stating the grounds for the dissatisfaction, a defendant also bears the responsibility of substantiating his claim."). His failure to ask the court for permission to make an evidentiary record in support of his request waives any error. See id. ("[B]ecause appellant did not request a hearing, no error was presented."); Blanton v. State, No. 05-05-01060-CR, 2006 WL 2036615, at *3 (Tex.App.-Dallas July 21, 2006, pet. ref'd) (not designated for publication) (rejecting defendant's contention that he was "unable to develop any proof" because record showed he did not attempt to offer any); see also Tex. R. App. P. 33.1(a) (appellant must make a timely request, objection, or motion in the trial court in order to preserve error for appeal).
C.
Denial of replacement counsel
Newton's second argument is that the trial court erred by forcing him to choose between appointed counsel he objected to and self-representation.
A defendant has no right to appointed counsel of his choice. Sampson v. State, 854 S.W.2d 659, 662 (Tex.App.-Dallas 1992, no pet.). The defendant must accept the attorney appointed by the court unless he effectively waives the right to counsel in order to represent himself or shows adequate cause for appointment of a different attorney. Thomas v. State, 550 S.W.2d 64, 68 (Tex.Crim.App. 1977). His request for a change of counsel cannot be made so as to obstruct the orderly procedure in the courts. Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App. 1991). When a defendant makes a last-minute request to change counsel and does not waive counsel and assert the right to self-representation, the trial court may compel him to proceed to trial with the lawyer he has, whether he wants to or not. Id. at 429. We review the trial court's ruling for abuse of discretion. Carroll v. State, 176 S.W.3d 249, 256 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd).
As previously noted, it was Newton's burden to prove that he was entitled to a change of counsel. Malcom, 628 S.W.2d at 791. He was obliged to show some good reason in support of his request. See Carroll, 176 S.W.3d at 255 (recognizing that a conflict of interest "may warrant the trial court's exercising its discretion to discharge previously appointed counsel and appoint substitute counsel"). Because Newton bore the burden of proof and produced no evidence in support of his request, the trial court did not abuse its discretion in denying the request.
We overrule Newton's first point of error.
III. Hearsay
In his second point of error, Newton argues that the trial court erred by admitting hearsay evidence during the punishment phase of the trial.
A.
Facts
During the punishment phase of the trial, the State presented evidence that Newton's robbery of Sonya Bennett was only part of a crime spree that included rapes of two other women. The hearsay evidence that Newton complains of relates to one of the rapes.
During the punishment phase, a witness named Geoff McIntyre testified that his wife was abducted from the garage of their own home at about 9:00 p.m. on December 6, 2006. He was inside the house when he heard his wife screaming outside, and when he ran outside he saw his wife getting pulled into a car in the alley behind the house. The car drove away before he could reach it, so he ran into the house to get his phone and then tried to pursue in his own car. He called 911 and reported the crime while he was driving. He then realized he was not going to be able to find the car, so he went back home. About 30 minutes later, he received a phone call and learned that his wife was with the Garland police. He was also able to talk to his wife on the phone at that time.
At this point in McIntyre's testimony, he began to testify about what had happened to his wife based on his wife's report to him over the telephone. Newton objected that this testimony was hearsay, and the State attempted to establish the predicate for the excited-utterance exception to the hearsay rule-that is, that McIntyre's wife's description of the crime related to a "startling event or condition" and was made while she was "under the stress of excitement caused by the event or condition." Tex. R. Evid. 802(3). The predicate evidence consisted of the following. McIntyre testified that he talked to his wife about the crime about 30 minutes "[a]t the most" after he had gotten back to the house. The prosecutor asked McIntyre if he could tell whether his wife was still under the stress of having been kidnaped, and McIntyre answered, "Yeah. She was very shaken up." A few questions later, the prosecutor asked, "And while she's still under the stress of that situation, she made these statements to you?" McIntyre answered, "That's correct." The trial judge overruled Newton's hearsay objections, and McIntyre testified to the details of what his wife told him about her abduction and rape at knifepoint.
B.
Analysis
We review a ruling admitting evidence for abuse of discretion, finding error only if the decision was so clearly wrong as to fall outside the zone of reasonable disagreement. London v. State, No. 05-07-00983-CR, 2008 WL 5102975, at *5 (Tex.App.-Dallas Dec. 5, 2008, pet. ref'd).
There is no dispute that McIntyre's wife had suffered a "startling event" as required by Rule 803(2), so we consider whether the trial court abused its discretion by concluding that her account of her abduction and rape to her husband was made "under the stress of excitement caused by the event." Tex. R. Evid. 803(2). The question is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event when the statement is made. Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex.Crim.App. 2005); Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App. 2003). The trial court may consider factors such as the length of time between the event and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving. Apolinar, 155 S.W.3d at 187.
The time lapse of 30 minutes between the abduction and McIntyre's conversation with his wife was not lengthy. See Zuliani, 97 S.W.3d at 596 (admission of excited utterance not erroneous despite lapse of "at least twenty hours"); Ollie v. State, No. 05-06-01588-CR, 2007 WL 1064329, at *3 (Tex.App.-Dallas Apr. 11, 2007, pet. ref'd) (not designated for publication) (admission of excited utterance not erroneous despite lapse of "approximately twenty minutes"); Woods v. State, No. 05-03-01595-CR, 2004 WL 1302880, at *2 (Tex.App.-Dallas June 14, 2004, no pet.) (mem. op.) (not designated for publication) (admission of excited utterance not erroneous despite lapse of "approximately thirty minutes"). McIntyre did not indicate that he questioned his wife during their conversation, nor was there anything self-serving about his wife's description of the crime. McIntyre testified that his wife was "very shaken up," and he affirmed that she was "still under the stress" of the events that had just taken place. Given the totality of the evidence, a reasonable trial judge could conclude that McIntyre's wife was still dominated by the excitement and fear caused by her abduction. See Ollie, 2007 WL 1064329, at *3 (finding no error where witness testified that declarant "was upset, visibly shaking, pacing back and forth, and appeared to have just been in a fight"); Woods, 2004 WL 1302880, at *2 (finding no error where witness testified that declarant was "very upset" and "under the stress or excitement" of an assault, and that witness had to calm the declarant down to get the statement). The trial court did not abuse its discretion in admitting the evidence.
We overrule Newton's second point of error.
IV. Sentencing
In his third point of error, Newton presents three arguments that the trial court erred by ordering a consecutive or "stacked" sentence.
A.
Facts
After the punishment phase of the trial, the jury returned a sentence of life imprisonment and a $10,000 fine. The State then orally requested that the life sentence "be stacked on top of the defendant's last sentence." The State recited the cause numbers for three prior convictions, namely F06-16302, F06-16303, and F06-16304. The court granted the motion to stack. The judgment in this case recites as follows: "[The] Court ORDERS that the sentence in this conviction shall run consecutively and shall begin only when the judgment and sentence in the following case has ceased to operate: F-0616304U; F0616303U; F-0616302U."
B.
Analysis
When a defendant has been convicted in two or more cases, the trial court may order the judgment and sentence imposed in the second conviction either (1) to begin to run after the judgment and sentence imposed in the previous conviction has ceased to operate or (2) to run concurrently with the previous judgment and sentence. Hurley v. State, 130 S.W.3d 501, 503 (Tex.App.-Dallas 2004, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 42.08(a)). We review the trial court's decision to stack or cumulate sentences for abuse of discretion. Id.
1.
"Meaninglessly punitive"In his first argument, Newton contends that the trial court abused its discretion because stacking his life sentence onto other sentences was "meaninglessly punitive." His argument consists solely of this bald assertion, and he does not cite any authorities to show that the trial court's discretion to stack is limited by a "meaninglessly punitive" standard. Accordingly, we reject the argument as inadequately briefed. See Russeau v. State, 171 S.W.3d 871, 881 (Tex.Crim.App. 2005).
2.
Timeliness
In his second argument, Newton argues that the trial court's stacking order was untimely because a sentence cannot be stacked onto a prior sentence if the defendant has already begun serving the prior sentence. For support, he cites Ex parte Townsend, 137 S.W.3d 79 (Tex.Crim.App. 2004), and Ex parte Barley, 842 S.W.2d 694 (Tex.Crim.App. 1992) (per curiam). We conclude that Townsend and Barley are inapplicable. Those cases hold that once the defendant has begun serving a sentence, the trial court cannot later add a stacking order to make that sentence run after completion of a subsequently imposed sentence. Townsend, 137 S.W.3d at 80-81; Barley, 842 S.W.2d at 695. In the instant case, Newton has not shown, or even argued, that he started serving the life sentence currently under review before the trial court made its order stacking that sentence. The fact that he may have already begun serving the prior sentences does not signal a violation of Townsend and Barley. We reject Newton's argument.
3.
Sufficiency of the evidence
Newton's brief is not entirely clear, but we construe his argument to be that the cumulation order was erroneous because no copies of the prior judgments of conviction were admitted into evidence and no evidence was admitted to prove that Newton was the person convicted in the alleged prior judgments. The court of criminal appeals has held that a trial court may not stack a sentence pursuant to article 42.08(a) unless there is some evidence of the prior conviction and some evidence that the defendant is the same person who was previously convicted. Barela v. State, 180 S.W.3d 145, 147 (Tex.Crim.App. 2005); Turner v. State, 733 S.W.2d 218, 223 (Tex.Crim.App. 1987). In assessing the record, we may consider admissions made by defense counsel as well as undisputed observations made by the State. Resanovich v. State, 906 S.W.2d 40, 42 (Tex.Crim.App. 1995).
Defense counsel admitted the fact that Newton had three prior convictions arising from the same series of events as the instant conviction for aggravated robbery. During a pretrial hearing on Newton's motion in limine, defense counsel stated, "As the Court is aware, Mr. Newton has three other convictions stemming out of some of the same facts that involve the case we are going to hear next week [i.e., the instant aggravated-robbery case]." Then, during the punishment phase of the trial, the State's attorney provided further details about the three convictions. During a hearing outside the presence of the jury, the following colloquy took place:
[THE STATE]:
. . . The State also intends on calling Melinda Winograd and LaCrista Briggs, two victims of the Carrollton case. [Defense counsel] has personal knowledge of these victims, as he was the attorney in a previous trial where these victims were presented in the case-in-chief. Furthermore, —
THE COURT:
And could you match that up with a cause number from the notice you gave, if you could, please?
[THE STATE]:
Yes, Your Honor. Melinda Winograd is the complainant stemming out of Cause Number F06-16304. LaCrista Briggs is the complaining witness out of Case Number F06-16303, and Miss Briggs is also the complainant of F06-16302.
During their testimony, Winograd and Briggs identified Newton as the person who had attacked them on December 6, 2006. And finally, during argument on the State's motion to cumulate, the State recited on the record without objection or contradiction that Newton's previous convictions were under cause numbers F06-16302, F06-16303, and F06-16304.
We conclude that the foregoing admissions and assertions made without objection suffice as some evidence of the prior convictions and Newton's identity as the person convicted. In Miller v. State, the court of criminal appeals held that a stacking order was supported by sufficient evidence based on (1) defense counsel's admission that the defendant was currently serving 30 years for two prior convictions and (2) the State's written motion identifying the convictions by cause number. 33 S.W.3d 257, 262 (Tex.Crim.App. 2000). The record in this case contains an admission that Newton had three prior convictions, and it includes undisputed assertions as to the cause numbers of those convictions. The record also includes witness testimony identifying Newton as the person who committed the offenses leading to the convictions. This evidence is comparable to the evidence presented in Miller. Thus, some evidence supports the stacking order, and the trial court did not abuse its discretion in making that order.
4. Conclusion
We overrule Newton's third point of error.
V. Disposition
We affirm the judgment of the trial court.