No. 04-03-00386-CR
Delivered and Filed: March 30, 2005. DO NOT PUBLISH.
Appeal from the 81st Judicial District Court, Karnes County, Texas, Trial Court No. 02-06-00094-Crk, Honorable Ron Carr, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: CATHERINE STONE, Justice.
Appellant, Timothy Scott Worstell, was convicted of aggravated assault and assessed a three year sentence and a $10,000 fine. On appeal, Worstell complains the trial court denied him the constitutional right to defend himself and challenges the legal sufficiency of the evidence to support the conviction. Worstell also argues the punishment assessed during the sentencing phase is disproportionate to the seriousness of the offense. We affirm.
Background
On March 3, 2002, while in prison, Worstell and apparently other inmates tattooed the words "child rapist" across the forehead of another prisoner. The victim, Harvey Mays, was led into a third floor shower, his hands were tied behind his back with a sheet, and a tattoo was etched into his skin. On April 7, 2003, Worstell's case was called for trial. Prior to entering his plea to the indictment, Worstell presented a series of motions to the court, including a motion to represent himself pro se during the trial. The court denied Worstell's pro se motion. Thereafter, on April 8, 2003, Worstell pled not guilty to the felony offense of aggravated assault. The State presented various witnesses before the trial court, including the victim, a number of inmates and prison staff, a registered nurse, and picket officers. Harvey Mays testified that in his opinion Worstell organized the assault. Another inmate, Tucker Maxson, testified Worstell was also behind the assault, but he never saw Worstell actually handle the tattooing instrument. Robert Maler, a registered nurse, testified that in his opinion the victim's tattoo was fresh when brought to him for treatment and this particular tattoo constituted "serious bodily injury." However, in Captain Nunez's opinion, the tattoo was not fresh and could have been up to twenty-four hours old. Based upon the witness testimony, the jury found Worstell guilty of aggravated assault and sentenced him to three years in jail and assessed him the maximum fine of $10,000 under the statute. This appeal ensued on three issues. Pro Se In his first issue, Worstell complains he was denied his right to act as his own counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. On April 7, 2003, Worstell's case was called for trial. The jury appeared and was sworn in by the court. The court addressed the qualifications and exemptions of the jury panel and upon concluding this inquiry dismissed the panel until 10:30 a.m. During this recess, at 9:40 a.m., the court entertained a series of motions on behalf of Worstell, including a motion to appoint new counsel, to be placed on record as co-counsel or to proceed pro se. The court did not examine Worstell's educational background to see if he was fit to proceed pro se and denied the motion without a hearing. Worstell contends this denial was unconstitutional because it forced a lawyer upon him when he wished to proceed pro se. The Sixth Amendment as made applicable to the various States by the Fourteenth Amendment guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. See Faretta v. California, 422 U.S. 806, 807 (1975). However, an accused's right to represent himself or select his own counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. See Martinez v. State, 640 S.W.2d 317, 320 (Tex.App.-San Antonio 1982, pet. ref'd) (quoting Webb v. State, 533 S.W.2d 780, 783-84 (Tex.Crim.App. 1976)). Thus, an accused may not wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he may retain other counsel. Id. at 320. In addition, the right of self-representation does not attach until it is asserted. See Collier v. Cockrell, 300 F.3d 577, 586 (5th Cir. 2002). Faretta is the leading case regarding the right of the accused to reject the assistance of counsel in order that he may represent himself. In applying the decision reached by the Supreme Court in Faretta, the Fifth Circuit has held that "although a defendant does indeed have the right to defend himself without counsel at his trial, once the trial begins, the right to defend ceases to be absolute . . . [t]hus a defendant cannot wait until the eve of trial to exercise his right to proceed pro se for courts are wary of last minute requests which `impede the prompt and efficient administration of justice.'" United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998) (quoting McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985)). And, in a more recent case, the Fifth Circuit noted the request to proceed pro se must be clear and unequivocal. See United States v. Majors, 328 F.3d 791, 794 (5th Cir. 2003) In Faretta, well before the date of trial, the accused specifically requested permission to represent himself. See Faretta, 422 U.S. at 807. In the case at bar, Worstell requested to proceed pro se at the very last moment. Worstell's motion was filed at 9:40 a.m. on the day of trial; therefore, his right of self-representation was asserted just fifty minutes prior to the continuation of voir dire at 10:30 a.m. See Collier, 300 F.3d at 586. This was also after the jury had already been sworn in and tested as to qualifications and exemptions. Moreover, Worstell never specifically requested to proceed pro se. See Faretta, 422 U.S. at 807. His motion, entitled "Defendants Motion for New Counsel, or Be Placed on Record as Co-Counsel, or Stand-by Counsel, or To Be Allowed to Proceed Pro Se," was not unequivocal as it was for either new counsel, to be co-counsel, for stand-by counsel, or to proceed pro se. See Majors, 328 F.3d at 794. Even if the trial court had examined Worstell to determine if he was fit to proceed pro se, the record shows he waited until the eve of trial to exercise this right and did not communicate his desire to do so clearly and unequivocally. See id.; Wagner, 158 F.3d at 902. To grant Worstell's last minute pro se motion would "obstruct the orderly procedure in the courts" and "interfere with the fair administration of justice." See Martinez, 640 S.W.2d at 320; Wagner, 158 F.3d at 902. Thus, there is no violation of Worstell's constitutional right and the issue is overruled. Legal Sufficiency of the Evidence
In his second issue, Worstell claims the evidence is legally insufficient to support a conviction for aggravated assault. In particular, Worstell argues the State failed to meet its burden of proving beyond a reasonable doubt the element of serious bodily injury to the victim. Worstell was charged by indictment with "intentionally, knowingly, or recklessly causing serious bodily injury to Harvey Mays by tattooing his forehead" with the words "child rapist." A number of witnesses testified throughout the case as to the seriousness of the victim's injury. James L. Cruz testified about his personal motive and involvement in putting the tattoo on Mays' forehead. Captain Nunez testified that in his opinion Mays' tattoo was not fresh and could have been up to twenty-four hours old when he interviewed him. However, Robert Maler, a registered nurse, claimed the tattoo "was very fresh . . . red . . . and swollen" when he examined it. Moreover, Maler stated that "without a doubt" Mays has suffered permanent disfigurement as the tattoo stretches two to two and half inches wide across his forehead. In addition, Mays testified he has been in protective custody since the assault and has undergone extensive medical surgery. Mays stated, "they've done one surgery on it so far," but it was not successful. "It is too deep for them to do the type of surgery that they tried on it; that surgery wasn't going to work; that they were going to have to do a laser surgery, and she said from what they could find out so far, it was so deep that they didn't really know if a laser surgery was actually going to work or not, they may have to go ahead and use a scalpel and cut it out." Furthermore, Mays declared the doctors, "would come in and do two surgeries. They would come in and either take a strip across the top part of my forehead out first, sew it back up, let it heal up, come back in and then peel the second part out and pull it back together and resew it." A person commits aggravated assault if the person commits an assault and the person causes serious bodily injury to another. See Tex. Pen. Code § 22.01, 22.02(a)(1) (Vernon Supp. 2004). Serious bodily injury is defined as "bodily injury that causes permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." See Tex. Pen. Code § 1.07(a)(46) (Vernon Supp. 2005). Disfigurement, like beauty, is in the eye of the beholder. However, when distinguishing between "bodily injury" and "serious bodily injury" it is, again, a matter of degree. Simply that an injury causes a scar is not sufficient to establish serious permanent disfigurement. There must be evidence of some significant cosmetic deformity caused by the injury. Furthermore, the relevant issue in determining the degree of disfigurement is the damage caused by the wound when inflicted, not disfigurement as exacerbated or ameliorated by medical treatment. Hernandez v. State, 946 S.W.2d 108, 113 (Tex.App.-El Paso 1997, no pet.); see also Barrera v. State, 820 S.W.2d 194, 196 (Tex.App.-Corpus Christi 1991, pet. ref'd). Moreover, serious bodily injury can be established in the absence of expert opinion, if the injury and its effects are obvious. See Carter v. State, 678 S.W.2d 155, 157 (Tex.App.-Beaumont 1984, no pet.). The determination of whether injuries constitute serious bodily injury as defined by the statute must be made on an ad hoc basis. See Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987); McCoy v. State, 932 S.W.2d 720, 723 (Tex.App.-Fort Worth 1996, pet. ref'd). In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070 (1999). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. When performing a legal sufficiency review, we may not act as a thirteenth juror, reevaluate the weight and credibility of the evidence nor substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131 (2000). Worstell argues we should look to the victim's motive because it might prove Mays "could have wanted to obtain the tattoo "child rapist" so that he could obtain protective custody." However, this court may not determine what "might" be the truth. See Jackson, 443 U.S. at 319. Moreover, there is only one person who testified that Mays wanted protective custody and this was Worstell's witness, inmate James Cruz. In fact, Mays testified to the contrary. The victim stated he did not want to go into protective custody and had no problems until Worstell assaulted him. And, although Captain Nunez testified that Mays' tattoo was not fresh when interviewed, the jury chose to believe the testimony of Maler that the tattoo was very fresh, red and swollen. See Dewberry, 4 S.W.3d at 740. As to the element of "serious bodily injury," Worstell argues Maler is not an expert witness and that his lay opinion is not enough to diagnose permanent disfigurement. However, serious bodily injury can be established in the absence of expert opinion, if the injury and its effects were obvious. See Carter, 678 S.W.2d at 157. The victim's tattoo is at least two inches wide and prominently displays the words "child rapist" across his entire forehead. While not life threatening, the injury sustained by Mays has caused him to remain in protective custody and to cover his forehead to ensure his physical safety. This obviously can be defined as a cosmetic deformity. See Hernandez, 946 S.W.2d at 113. Further, although the tattoo may be medically removed at some point, at the moment these letters were inflicted to Mays' forehead it was permanent disfigurement. See id; Barrera, 820 S.W.2d at 196. Moreover, to repair this cosmetic deformity, the record shows Mays will have to endure at least "two surgeries which may not work" or the doctors will "use a scalpel and cut it out." The record establishes legally sufficient evidence that this tattoo indeed caused permanent disfigurement at the time it was inflicted. Reviewing the evidence in a light most favorable to the verdict, including the testimony of both Maler and Mays, would lead a rational fact finder to conclude beyond a reasonable doubt that Worstell inflicted serious bodily injury on an inmate and thus committed aggravated assault. See Jackson, 443 U.S. at 319; Mosley, 983 S.W.2d at 254. This issue is overruled. Disproportionate Punishment
In his last issue, Worstell says his punishment is grossly disproportionate to the seriousness of the crime, and thus unconstitutional under the Eighth and Fourteenth Amendments of the United States Constitution. During the punishment phase of the trial, the State asked the court to proceed on the primary count in this case, aggravated assault, as a second degree felony. The State explained they would not enhance Worstell's punishment nor request that the court enhance his punishment to a first degree felony. However, the State did ask the court to consider the fact that Worstell has been indicted for three prior felony offenses, two for theft and one for the unauthorized use of a motor vehicle. The State also noted the increased medical expenses incurred by the tax payers as a result of the assault on Harvey Mays. The victim has already endured one major surgery and is expected to have at least one more to correct his injury. In contrast, Worstell argued that some of his co-defendants in the case received the minimum punishment allowed and that he should receive the same. After hearing both sides, the jury rendered a decision. Worstell was punished with a three year sentence in the Texas Department of Justice Institutional Division and assessed the maximum fine of $10,000 for the crime of aggravated assault. The Legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex.App.-Texarkana 1995, pet. ref'd). Accordingly, an individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years. In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000. Tex. Pen. Code § 12.33. However, the Eighth Amendment to the United States Constitution, applicable to the various States through the Fourteenth Amendment says, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." See Robinson v. California, 370 U.S. 660, 666-67 (1962); U.S. Const. amend. VIII. Thus, a state court has the power to review the question of whether the punishment assessed in a particular case is excessive. See Samuel v. State, 477 S.W.2d 611, 614 (Tex.Crim.App. 1972). The Texas Court of Criminal Appeals has consistently held regarding the issue of proportionality, that a sentence falling within the range of punishment for an offense set by statute does not violate the Eighth and Fourteenth Amendments of the United States prohibition against cruel and unusual punishment. See Davis v. State, 905 S.W.2d 655, 664 (Tex.Crim.App. 1995, pet. ref.'d); Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973). In evaluating the gravity of the offense and the harshness of the penalty, Worstell's punishment falls within the range prescribed by the Legislature. See Tex. Pen. Code § 12.33; Davis, 905 S.W.2d at 664; Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952. The punishment actually assessed is only one year over the minimum sentence. Also, Worstell does not take into consideration that a sentence of three years is not cruel and unusual given the fact that he has already been convicted of three prior felonies, this one being his fourth. See Samuel, 477 S.W.2d at 614. In addition, the State waived the enhancement provisions to a first degree felony and allowed the court to set punishment with a lower range than could have been administered. As to the fine imposed, because the State must incur the costs of medical treatment endured by the victim, including at least two major surgeries, the fine of $10,000 is neither excessive nor disproportionate to the crime. See Lackey, 881 S.W.2d at 421; Davis, 905 S.W.2d at 664. Thus, since the court of criminal appeals has repeatedly found that punishment falling within the limits of a valid statute is not excessive, cruel or unusual and when viewed in light of Worstell's criminal history and the resulting expenses of the assault on the victim, the punishment is not grossly disproportionate to the offense he committed and is therefore not unconstitutional. See Lackey, 881 S.W.2d at 421; Davis, 905 S.W.2d at 664; Harris, 656 S.W.2d at 486. This issue is overruled. The judgment of the trial court is affirmed.