No. 05-06-00612-CR
Opinion Filed November 25, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 336th Judicial District Court Grayson County, Texas, Trial Court Cause No. 053291-336.
Before Justices BRIDGES, FITZGERALD, and LANG.
DOUGLAS S. LANG, Justice.
Appellant Charles Ray Turley pleaded not guilty to two counts of failure to register as a sex offender. A jury found appellant guilty on both counts and assessed punishment at two years' confinement as to the first count and four years' confinement as to the second count. Proceeding pro se, appellant filed an appellate brief we construe to present the following five issues: (1) alleged televised comments by the trial judge approximately two years before trial exhibited prejudice and constituted a violation of canon four of the Texas Code of Judicial Conduct and the Fourteenth Amendment to the United States Constitution; (2) the trial court forced appellant to accept a court-appointed attorney in violation of his rights under the Sixth Amendment to the United States Constitution; (3) the trial court erred by trying appellant "for 2 charges under the rule of joiner," which "was repealed in 1986"; (4) the registration statute under which appellant was convicted was ex-post-facto with regard to him, in violation of the Texas and United States constitutions; and (5) state and county authorities violated appellant's Fourteenth Amendment rights "of equal access to the law and the courts" during the preparation of this appeal. The factual context and procedural background of this case are well known to the parties, so we need not recount them in detail here. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant is a registered sex offender pursuant to a 1979 conviction for rape of a child younger than seventeen years. He was arrested in August 2005 and charged in a single indictment with the following two counts: (1) failing to report in person to the local law enforcement authority to verify the information on his registration form not earlier than the 30th day before and not later than the 30th day after the anniversary of his date of birth, and (2) failing to report in person to the local law enforcement authority to provide his anticipated move date and new address not later than the seventh day before the intended change. Trial commenced February 27, 2006. Appellant was convicted and sentenced on both counts on February 28, 2006. This appeal timely followed. II. APPELLANT'S ISSUES A. Comments of Trial Judge
We construe appellant's first issue to contend the trial judge exhibited prejudice and violated canon four of the Texas Code of Judicial Conduct and the Fourteenth Amendment to the United States Constitution when she "in her run to be elected, 336th judge, made the statement, in March of 2004, on either channel 12 or 10 that anyone who had been convicted or charged with any crime involving D.W.I., D.U.I., or any charge involving a child, as far as she was concerned had no rights whatsoever." The State asserts the record does not contain any evidence of bias on the part of the trial judge. In addition, the State contends that because "no objection was made and no bill of exception was filed regarding this matter," this issue was not preserved for this Court's review. Generally, to preserve error for appellate review, an appellant must have made a timely objection in the trial court, even if the error is "incurable" or "constitutional." See Tex. R. App. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Deener v. State, 214 S.W.3d 522, 527 (Tex.App.-Dallas 2006, pet. ref'd); see also Johnson v. State, 760 S.W.2d 277, 279 (Tex.Crim.App. 1988) (pro se litigant is held to same standards as licensed attorney and must comply with applicable laws and rules of procedure). However, in Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000) (plurality op.), a plurality of the Texas Court of Criminal Appeals held that a trial judge's comments that "tainted [the defendant's] presumption of innocence" were "fundamental error of constitutional dimension and required no objection." The record shows that prior to voir dire and outside the presence of the jury panel, the following exchange occurred between appellant, appearing pro se, and the trial judge: APPELLANT: Your Honor, I'm going to ask the Court a question. It's a very leading question and I'm sure it'd be very upsetting to the Court and probably make you come in on me. I don't know. The only way I know to find out anything is to ask. In your campaign on Channel 12, did you not state that you-anybody that came before you of a conviction of anything to do with a child, which the girl was 13, my stepdaughter-that you-as far as you were concerned, that they had no legal rights whatsoever?
TRIAL JUDGE: Sir, the Court never indicated that. I have always been an advocate of the law. This Court will always follow the law. You are entitled to many rights, and the Court has ensured this entire time that your rights have been protected and, in fact, the Court has gone I think further than probably many would by giving you stand-by counsel.
APPELLANT: Then I will agree with Your Honor.
The record shows no objection by appellant regarding the trial judge's alleged comments. See Tex. R. App. P. 33.1. Further, even if we were bound to follow the Blue plurality opinion, the record in this case shows no comments by the trial judge that reflect bias or partiality. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex.Crim.App. 2006) (court did not need to decide whether objection was required to preserve alleged error regarding comments of trial judge where record did not reflect bias or partiality of trial court); Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001) (trial judge's comments "aimed at clearing up a point of confusion" did not "[rise] to such a level as to bear on the presumption of innocence"). "Absent a clear showing of bias, a trial court's actions will be presumed to have been correct." Brumit, 206 S.W.3d at 645. Appellant's first issue is decided against him.
B. Violation of Sixth Amendment Rights
In what we construe as appellant's second issue, he contends he was "forced to accept a court appointed attorney" in violation of his Sixth Amendment constitutional rights. The State responds the record contains no evidence appellant was represented by court-appointed counsel. Rather, the State asserts, the record "reflects that the appellant was admonished then allowed to represent himself," with "stand by" counsel appointed "for the sole purpose of providing advise [sic] to the appellant should the appellant so request." Further, the State contends, because no objection was made regarding this matter, "this issue, even if true, was not preserved on appeal." In support of his contention, appellant cites Faretta v. California, 422 U.S. 806 (1975). In that case, defendant Anthony Faretta requested prior to trial that he be permitted to represent himself. Id. at 807. The trial judge accepted Faretta's waiver of assistance of counsel, but indicated he might reverse that ruling if it later appeared Faretta was unable to adequately represent himself. Id. at 808. Several weeks thereafter, but still prior to trial, the trial judge ruled Faretta had not made an intelligent and knowing waiver of his right to assistance of counsel and also ruled Faretta had no constitutional right to conduct his own defense. Id. at 809-10. The Supreme Court vacated the trial court's judgment after concluding a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Id. at 807. Additionally, the Court stated in a footnote, "Of course, a State may-even over objection by the accused-appoint a `standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Id. at 834 n. 46. Here, the record shows that at a November 22, 2005 pretrial appearance, appellant told the trial court he did not "have any faith" in court-appointed attorneys and was in the process of trying to retain counsel. The trial judge stated she was "offering to see if having an attorney to assist you in this endeavor would be of assistance, would be a good thing." Appellant replied, "It may-Your Honor, it might be. That way I can get legal paperwork in, so that I can have at least an access to my paperwork." At that time, the trial court appointed attorney Jack McGowen to assist appellant "to the extent he wants that assistance." Appellant made no objection. As of December 7, 2005, appellant had not been successful in retaining counsel. At an appearance on that date, the trial court stated, "Well, what I will do is I will continue to have Mr. McGowen appointed to assist you to represent yourself." Appellant did not object. At the commencement of trial on February 27, 2006, the judge asked, "Now, are you going to persist in representing yourself, which you may, and I will still allow Mr. McGowen-in fact, he is required to be stand-by counsel during the proceedings. Or in the alternative, are you desiring to have him represent you in the case?" Appellant told the trial court he would represent himself and signed a waiver of his right to counsel. Throughout trial, appellant represented himself. Appellant initiated several conferences with McGowen during trial and did not object to McGowen's assistance. Regardless of whether appellant was required to object in order to preserve this issue, the record does not support appellant's contention he was "forced to accept a court appointed attorney." Appellant represented himself in the trial court and conducted his own defense, unlike the defendant in Faretta. See 422 U.S. at 810-11. Therefore, Faretta is inapposite. Appellant does not explain how the trial court's appointment of stand-by counsel constituted error. See id. at 834 n. 46. Accordingly, appellant's second issue is decided against him. C. Trial by "Rule of Joiner"
In what we construe as appellant's third issue, he contends he was improperly tried "for 2 charges under the rule of joiner," which "was repealed in 1986." The State responds that because no objection was made in the trial court regarding improper joinder, this issue was not preserved for review. The record shows appellant made no objection in the trial court regarding improper joinder. Therefore, we conclude this issue presents nothing for this Court's review. See Tex. R. App. P. 33.1; see also Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005) (if defendant does not object to defect, error, or irregularity of form or substance in indictment before trial on merits begins, defendant waives right to object and may not raise objection on appeal). We decide against appellant on his third issue. D. Ex Post Facto Law
We construe appellant's fourth issue to assert that the registration statute under which he was convicted was ex-post-facto with regard to him because it did not "come about" until after he was "discharged" from his original conviction, and application of that statute to him therefore constituted a violation of his rights under the Texas and United States Constitutions. The State contends that because "[n]o objection was made and no bill of exception was filed regarding this matter," this issue was not preserved for appeal. Further, the State asserts the Texas Court of Criminal Appeals "has found that the imposition of sex offender registration laws do not constitute ex post fact [sic] laws." The State argues appellant "has failed to produce any argument or case law which would warrant revisiting this issue." Both the United States and Texas constitutions contain an absolute prohibition against ex post facto laws. U.S. Const. art. I, § 10; Tex. Const. art. I, § 16; Ieppert v. State, 908 S.W.2d 217, 220 (Tex.Crim.App. 1995). Under United States or Texas constitutional analysis, an ex post facto law: (1) punishes as a crime an act previously committed which was innocent when done; (2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; (3) deprives a person charged with a crime any defense available at the time the act was committed; or (4) alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense in order to convict the offender. Carmell v. Texas, 529 U.S. 513, 513 (2000); Ex parte Davis, 947 S.W.2d 216, 219-20 (Tex.Crim.App. 1996); Johnson v. State, 930 S.W.2d 589, 591 (Tex.Crim.App. 1996). The Texas Court of Criminal Appeals has specifically concluded the Texas statutory scheme regarding sex offender registration is not punitive, thus precluding challenges based on the second ex post facto consideration above. See Ex parte Robinson, 116 S.W.3d 794, 798 (Tex.Crim.App. 2003); Rodriguez v. State, 93 S.W.3d 60, 79 (Tex.Crim.App. 2002). Appellant states in his brief before this Court: I was discharged from my original conviction on June 24, 1999, at which time Vernon's Annot. Statutes stated that if you were not under parole, or probation, then you must report your address, once a year, and that it was an affirmative defense if you were not under parole or probation, which I was not. The change in the law did not come about until Sep. 1, 2000 [sic]. So that makes the current law ex-post facto (1999) in reference to me. Texas Rule of Appellate Procedure 38.1(f) provides the statement of an issue or point in an appellant's brief will be treated as covering every subsidiary question that is fairly included. Tex. R. App. P. 38.1(f). In accordance with rule 38.1(f), we construe appellant's issue to assert that the statute under which he was convicted is ex post facto with regard to him based on the third consideration above, that the statute "deprives a person charged with a crime any defense available at the time the act was committed." However, appellant does not explain how that consideration applies to the facts of his case, nor does he cite authority regarding the alleged "affirmative defense" and "change in the law" to which he refers. See Tex. R. App. P. 38.1(i) (appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Accordingly, we conclude appellant's fourth issue presents nothing for this Court's review. We decide appellant's fourth issue against him. E. Violation of Rights to Equal Access to Law and Courts
In what we construe as appellant's fifth issue, he appears to contend state and county authorities violated his Fourteenth Amendment rights "of equal access to the law and the courts" during the preparation of this appeal. Specifically, appellant asserts, "[A] writ of mandamus from this court to the 336th district court, to give me access to the law library in Grayson County, still has not been complied with since date of issue June 2006." In addition, appellant complains the "guards at T.D.C.J." have torn up or thrown away his trial records, legal papers, and other work materials on several occasions "from June 2006 thru the present day." The State responds appellant's complaints regarding post-conviction violations by state and county authorities "are not properly before the court in that they are not part of the case on appeal." No "writ of mandamus" from this Court is contained in the record. The record shows that in response to a May 25, 2006 motion filed in this Court by appellant, this Court issued an order on June 5, 2006, that stated, in part: Appellant also asks that we order the Grayson County Sheriff to provide him access to the law library. Because appellant is representing himself in this appeal, we ORDER the trial court will make the necessary arrangements for appellant to have access to both the record and library resources to prepare his brief. (emphasis original). However, even if we were to construe appellant's issue as a motion seeking sanctions regarding enforcement of this Court's June 5, 2006 order, the record does not show noncompliance by the trial court with that order. In an appeal from a trial court judgment, the action of the court of appeals is limited to affirmance of the judgment in whole or in part; modification and affirmance of the judgment; reversal in whole or in part of the judgment and rendition; reversal of the judgment and remand of the case; vacation of the judgment and dismissal of the case; or dismissal of the appeal. Tex. R. App. P. 43.2. Appellant complains of post-conviction matters he does not show to be related to the trial court judgment being appealed. Appellant does not explain how this Court's appellate jurisdiction extends to such matters or cite authority to support such a proposition. See id.; see also Tex. R. App. P. 38.1(i) (appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Accordingly, appellant's issue presents nothing for this Court's review. We decide against appellant on his fifth issue. III. CONCLUSION
For the reasons above, we decide appellant's five issues against him. The trial court's judgment is affirmed.