Opinion
No. 05-08-00382-CR
Opinion issued January 25, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F07-49757-Y.
Before Justices MORRIS, FITZGERALD, and LANG-MIERS.
OPINION
A jury convicted Jimmie Lee Walton of unauthorized use of a motor vehicle. Now on appeal, he contends the trial court violated his right to self-representation under the federal and state constitutions and the evidence against him is factually insufficient. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Veronica Wheat awoke one morning to discover that her blue Nissan 240SX, which had been parked outside her apartment the night before, was missing. She reported the incident to police and a day later she was able to claim the car at an impound lot. Her belongings were missing from the car, and it had another person's belongings inside it. Wheat testified that she did not know appellant, who also lived in her apartment complex. She said she did not loan out her car because it was her only form of transportation and she is a single mother. The day after Wheat reported the car missing, police stopped appellant in the car. When informed that he was under arrest for unlawful use of a motor vehicle, appellant stated that he was aware the car was stolen and was returning it to its owner. Wheat testified that she possessed the only key to the car, and she still had it after the car was stolen. When Wheat picked up the car, she was given a key with a John Deere decoration at the top. It did not start the car, but her original key to the car did. Wheat did not see any damage to the car's steering column. A police officer testified that, without noticeable damage to the steering column, it is possible to remove a car's ignition housing, hot wire it, and then replace the housing with a false key in the ignition so it appears that the car is not stolen. Afterward, it is usually no longer possible to start the car with a key. The police report filed in appellant's case noted that the key found in the car did not belong to it. Wheat acknowledged that the locks on her car did not work when the car was stolen. She stated that she had previously noticed items missing or moved from the car. She also recalled an incident from a year before the car was stolen when a man approached her at the apartment complex mailboxes and talked to her about the car. The man purported to know a previous owner of the car and revealed a knowledge of the car's electrical problems. An acquaintance of appellant testified for the defense. He said that appellant considered himself a "ladies' man." He stated that appellant had talked about a "Veronica" more than once. The acquaintance also said that the month of appellant's arrest he had seen appellant driving a small blue car that did not belong to him on several occasions before the arrest.Discussion
In his first two issues on appeal, appellant complains he was denied his right to self-representation under the United States and Texas constitutions. Because appellant does not provide separate argument and authority for his contentions under the Texas Constitution, we will address his claims only under the United States Constitution. A criminal defendant has the right to waive his right to counsel and represent himself under the Sixth and Fourteenth Amendments if his decision to do so is made intelligently, knowingly, and voluntarily. See Faretta v. California, 422 U.S. 806, 835 (1975). The right to self-representation does not attach, however, until it is clearly and unequivocally asserted. Funderberg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). In addition, the right must be asserted in a timely manner, that is, before the jury is impaneled. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997). A defendant may also waive his right to represent himself after he has asserted the right. Funderburg, 717 S.W.2d at 642. We review the trial court's factual determination of whether the defendant elected to represent himself under an abuse of discretion standard. See DeGroot v. State, 24 S.W.3d 456, 457 (Tex. App.-Corpus Christi 2000, no pet.) Appellant contends he first asserted his right to self-representation during a pre-trial hearing. Before jury selection in the case, when asked by the trial judge whether he wished to accept the State's plea bargain offer, appellant commented, ". . . on this UUMV case, I don't know anything about a stolen car. The State knows that. And Paul Rosemergy [one of appellant's two court-appointed attorneys], I don't want anything to do with him." When questioned again by the trial judge about whether he wished to take the plea offer or proceed to trial, appellant stated, "I have profound evidence of fraudulent conspiratorial activity going on in my case and my situation, and I can prove it. All I need is for an investigator, someone to sit down with me and let me show them." The trial judge responded, ". . . For the record, the Court takes that as a rejection of the State's offer, and we will proceed to trial on Monday morning." After jury selection but before testimony began, the trial judge again addressed appellant's possible desire to proceed without counsel. The judge stated, "It's always in your best interest to have lawyers representing you in this case. You do ultimately have the right to represent yourself. But I need to know from you why it is that you think that you can't proceed with these two fine lawyers." Appellant then proceeded to testify and offer evidence that he claimed showed he had been incarcerated illegally. The trial judge stated,. . . [T]here's no question about what the allegations are. The allegations are that you improperly used a car that was not yours. It's as simple as that.
Now, whether that's true or not, we don't know. Okay? But the worst thing you could possibly do would be to get up here and try to represent yourself and make a fool out of yourself in front of this jury. Okay?
Mr. Self knows what he is doing. Mr. Rosemergy knows what he is doing.Appellant then attempted to discuss his claims that he had not been arrested for or charged with a different theft case the State intended to use against him during the punishment hearing. The trial judge said, It has nothing to do with this UUMV case.
Now, sir, you have the absolute right to represent yourself. As I told you, that would be a very bad mistake. I intend to proceed now with the trial of this case. You have any objection to that?Appellant responded, "Yes, sir, "and stated that he had another "document that was passed to me by Paul Rosemergy that is concocted and fabricated." The document also pertains to the previous theft offense. He went on, "I was out preparing for my defense in this cause right here, which prejudices this whole case and situation." At that point, the trial judge stated, "All right. I don't know what else to do. This will be Record Exhibit 2, which is admitted for record purposes. And again, the Court finds it highly irrelevant." Appellant's attorney Rosemergy then stated, "I have one matter briefly. Mr. Walton has indicated that he wants to do an opening statement. He wants to represent himself, I believe. I don't know. He tells me this-" The trial court did not permit appellant to make the opening statement, and the jury was then brought back into the courtroom for trial. After several witness had testified, the trial judge excused the jury and again addressed appellant, saying, Mr. Walton it has come to my attention that there has been at least a possible assertion that you might want to represent yourself. I've explained to you that would be a bad mistake, but you do have the absolute right to represent yourself if you want to do that.
You may have noticed already that your lawyers know what they're doing. Let me ask you now, are you willing to let your lawyers continue to represent you in this case?Appellant responded, "Yes, sir." Appellant's complaints at the start of trial centered on allegations of improprieties and false charges. He seemed to believe that one of his court-appointed attorneys was involved in the wrongdoing somehow. Nevertheless, he never requested to represent himself at trial; instead, it appears, his desire was to communicate to the court his belief that he was the victim of injustice. Appellant never specifically and unequivocally addressed his right to self-representation at trial until he waived it. Under these circumstances, we cannot say the trial court abused its discretion in determining appellant did not desire to exercise the right. We resolve appellant's first issue against him. In his second issue, appellant complains the evidence against him is factually insufficient to support his conviction for UUMV. He argues that the evidence shows he "either had Wheat's permission to drive her vehicle or believed he had her permission." In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the fact finder's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias. See id. In a factual sufficiency review, we may substitute our judgment for the fact finder's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Wheat made clear in her testimony that she did not know appellant and never loaned him her car. Even if the defense evidence that appellant had mentioned a person named Veronica and had been seen driving a car resembling Wheat's is taken to be true, it does not disprove Wheat's testimony. After reviewing the entire record, we conclude the evidence is factually sufficient to support appellant's conviction. We resolve appellant's second issue against him. We affirm the trial court's judgment.