Cecil Max George v. State ( 2017 )

Affirmed and Memorandum Opinion filed August 1, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00217-CR
CECIL MAX-GEORGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1475788
MEMORANDUM OPINION
Appellant Cecil Max-George appeals from a conviction for assault of a public
servant. See Tex. Penal Code Ann. § 22.01 (West 2011). Appellant raises two issues
on appeal. In his first issue, appellant asserts the trial court abused its discretion
when it denied his request to represent himself. We overrule this issue because the
record supports the trial court’s finding that appellant could not represent himself
without being intentionally disruptive to the court proceedings.
Appellant argues in his second issue that the trial court abused its discretion
when it removed him from the courtroom during much of his trial, thereby violating
his constitutional and statutory rights to be present during his trial. We overrule this
issue because the trial court removed appellant from the courtroom only after he
failed to heed her warning that he would be removed if his disruptive behavior
continued, and he was allowed to return once he indicated he was prepared to
proceed without further disruptions. We therefore affirm the trial court’s judgment.
BACKGROUND1
Appellant was driving Russell Jones, a co-worker, away from a job site in
appellant’s pick-up truck when the automated license plate reader on Houston Police
Officer Chase Myrick’s patrol car indicated there were warrants connected to the
pick-up’s license plate. Officer Myrick pulled appellant over. Officer Myrick and
his partner that day, Officer Daniel Duval, approached the pick-up. As Officer
Myrick approached the driver’s side door, appellant started swearing and demanding
to know why he had been pulled over. Officer Myrick asked appellant to calm down,
but appellant continued to curse and scream at him. Despite the screaming and
cursing, Myrick was able to verify that appellant was the person named in the
warrants. After appellant refused to get out of the pick-up when asked to do so, the
officers returned to their patrol vehicle and called for back-up.
Three police officers responded to Officer Myrick’s request. One, Officer
Luke Matthews, then approached appellant again. Despite Matthews’s request that
everyone remain calm, appellant continued screaming and cursing. At this point,
Jones asked if he could get out of the pick-up and the police allowed him to do so.
1
Because appellant has not challenged the sufficiency of the evidence supporting his
conviction, we provide only those facts necessary to address and resolve appellant’s issues on
appeal.
2
Officer Matthews then opened the driver’s door and attempted to place handcuffs on
appellant. Appellant knocked Matthews’s hand away and then grabbed Matthews
by the vest. A struggle ensued as the officers removed appellant from the pick-up,
put him on the ground, and handcuffed him. During that struggle, two of the officers
were injured.
Appellant was charged with assault of a public servant. The trial court
appointed defense counsel for appellant and his case was eventually called to trial.
On the morning trial was scheduled to begin, appellant informed the trial court that
he wished to waive his right to counsel and represent himself. The trial court held a
Faretta2 hearing to determine whether appellant was able to represent himself.
From the start of the Faretta hearing, appellant disrupted the proceeding by
continually interrupting the judge. Appellant continued to be disruptive despite the
judge’s repeated warnings to stop interrupting and to listen to what she was trying
to say. When appellant did not correct his behavior, the trial judge indicated on the
record that this was not the first time appellant had been disruptive in court. The
trial judge noted that appellant had been calling his defense attorney names and,
during a previous court setting, had become so unruly that it became necessary for
the judge to have him removed from the courtroom “because you cussed out your
lawyer in open court.” The judge stated that she had previously warned appellant
off the record that he would be held in contempt of court if he continued to be
disruptive, and she warned him again on the record. During the Faretta hearing,
appellant used inappropriate language, argued with the trial judge regarding his past
behavior, and claimed that he had been treated unfairly when representing himself
in a previous criminal matter.
2
Faretta v. Cal., 422 U.S. 806, 807 (1975).
3
At the conclusion of the hearing, the trial judge expressed her belief, based on
her past experience with appellant as well as his behavior during the Faretta hearing,
that he would continue to be disruptive during trial. As a result, the judge found that
appellant could not represent himself without disrupting the orderly trial of the case.
Appellant continued to argue with the court’s ruling even after the judge announced
that her decision was final. Among other things, appellant: claimed the trial judge
had not allowed him to speak; claimed he was unaware he was going to trial that
day, although his counsel represented to the trial court that he had explained this to
appellant; continuously disputed everything the trial judge and his defense counsel
said; and repeatedly asked that everything be put “on the record” despite having been
informed that the court reporter was present and recording the proceedings. The trial
judge concluded the hearing and told appellant that there was an “issue with your
willingness to either listen or understand and that’s also a concern for me in your
representing yourself.” At that point, the court recessed until after lunch, when voir
dire was to begin.
After the lunch recess, while the prospective jury panel was entering the
courtroom, appellant caused a disturbance, demanding once again to represent
himself and claiming that defense counsel was threatening him. The trial judge
called appellant to the bench, where she stated that “the bailiff was bringing the jury
into the courtroom and [appellant] continued to disrupt the Court, continued to speak
in a loud voice in front of the jury.” The judge once again warned appellant that she
would hold him in contempt if he continued to disrupt the proceedings. The trial
judge also warned appellant that if he continued to be disruptive, she would have to
put him in a holdover cell and make arrangements for him to listen to his trial from
there. While still at the bench, appellant again asserted his right to represent himself
and said that his attorney was threatening him. The judge responded that she saw
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what had happened and defense counsel did not threaten appellant. While at the
bench, appellant repeatedly interrupted the judge and, as the judge put it,
“continue[d] to antagonize this situation.” Appellant continued to argue that he
wanted to represent himself. He also told the trial judge several times that if allowed
to represent himself, he was not ready to proceed to trial. The trial judge again told
appellant that, based on his behavior and everything she had heard, she would not
let him represent himself. Voir dire began, and despite numerous disruptions by
appellant, a jury was selected.
The next day, appellant was arraigned and the State made its opening
statement. Defense counsel then announced that he would reserve his right to make
an opening statement. At that point, appellant interrupted the proceedings by again
demanding to represent himself and stating that he wanted to make an opening
statement. Appellant refused to sit down when the trial judge asked him repeatedly
to do so, and he stated that “the jury needs to hear exactly what’s going on here.” At
that point, the judge had the jury removed from the courtroom and spoke directly
with appellant. As before, appellant continued to interrupt the judge. Appellant then
said that if his actions were considered an outburst, “then please hold me in contempt
of Court.” Instead, the trial judge ordered the bailiff to remove appellant from the
courtroom. The judge asked defense counsel to speak to appellant and let him know
that “I’m happy to have him come back in the courtroom but I can’t do it if we are
going to continue this behavior.”
After a short recess, appellant was brought back into the courtroom to speak
to the judge one more time about his behavior. The judge attempted to get a
commitment from appellant that he would follow the rules and make no further
outbursts in court. Appellant refused to make this commitment. He then proceeded
to argue with the trial judge. Finally, the trial judge ruled that given appellant’s
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repeated outbursts in front of the jury, in addition to his yelling at the bailiffs and
refusing to follow their orders, appellant had “disrupted the orderly proceeding of
this trial and he will remain in the holdover.” Arrangements were made so that
appellant could hear the trial proceedings. The trial judge also informed appellant’s
defense counsel that he would have time to confer with appellant before cross-
examination of the witnesses. The judge expressed regret that she had to remove
appellant from the courtroom and let defense counsel know that “if at some point
your client agrees that he can follow the rules of the courtroom, I am happy to let
him back in. I would love for him to come back.”
After the State’s first witness testified on direct, the court took a brief recess
so defense counsel could confer with appellant. The trial judge also asked counsel
to “[p]lease let us know if [appellant’s] stance has changed in regard to joining us in
the trial so we can make that happen, okay?” Appellant remained outside the
courtroom until it was his turn to testify. After appellant’s testimony, defense
counsel asked the court to allow appellant to remain in the courtroom for the
remainder of the trial because appellant had told him “that he feels that he can control
himself and that he will not subject the Court, the jury, or anyone else to any further
outbursts. . . .” The trial judge then allowed appellant to return, explaining:
I told you numerous times yesterday, because I asked whether or not he
was prepared to follow the courtroom rules and that he could come back
at any time. I know yesterday that you continually told me you had
concerns about that. So, as long as that happens.
Appellant remained in the courtroom for the remainder of his trial. Appellant
made it through closing arguments in the guilt/innocence phase of his trial without
interruption, but he did interrupt a witness testifying during the punishment stage of
trial, causing the trial court to reprimand him. The jury found appellant guilty and
sentenced him to serve fifteen years in prison. This appeal followed.
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ANALYSIS
I. The trial court did not abuse its discretion when it denied appellant’s
request for self-representation.
Appellant argues in his first issue that the trial court abused its discretion when
it denied his request for self-representation. The Sixth Amendment right of an
accused in a criminal proceeding to effective assistance of counsel extends to the
States through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335,
342–44 (1963); see U.S. Const., amends. VI, XIV. The Supreme Court has also
found in the Sixth Amendment an independent constitutional right of an accused to
conduct his own defense. Faretta, 422 U.S. at 819–20. The Court held that it is for
the accused personally to decide whether assistance of counsel in his particular case
is to his advantage, and his choice must be honored out of respect for the individual
even if that choice ultimately may be to his own detriment. Id. at 834. To be
constitutionally effective, the waiver of counsel must be made (1) competently, (2)
knowingly and intelligently, and (3) voluntarily. Fletcher v. State, 474 S.W.3d 389,
395 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).
Although courts must respect a competent defendant’s knowing and voluntary
choice to represent himself, the defendant, in the exercise of the right of self-
representation, must respect the “dignity of the courtroom.” Faretta, 422 U.S. at
834 n. 46. The State’s “‘interest in ensuring the integrity and efficiency of the trial
at times outweighs the defendant’s interest in acting as his own lawyer.’” Lewis v.
State, No. 14-14-00779-CR, 2016 WL 93760, *4 (Tex. App.—Houston [14th Dist.]
Jan. 7, 2016, pet. ref’d) (quoting Martinez v. Court of Appeals of Cal., Fourth
Appellate Dist., 528 U.S. 152, 162 (2000)). Therefore, trial courts have discretion
to deny a request for self-representation by a defendant who intentionally engages
in serious obstructionist behavior or abuses the dignity of the courtroom. Id.
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Because a decision to deny a request for self-representation based on a defendant’s
deliberately obstructionist behavior turns on an evaluation of credibility and
demeanor, we afford almost total deference to that decision. Id.
The trial court found that appellant could not represent himself without
disrupting the trial and denied his request for self-representation as a result. We
view the evidence in the light most favorable to this ruling and, in the absence of
explicit findings, we will imply findings of fact necessary to support the ruling if
they are supported by the record. Chadwick v. State, 309 S.W.3d 558, 561 (Tex.
Crim. App. 2010).
The record, summarized above, contains repeated instances of appellant’s
disruptive and obstructionist behavior. It also includes numerous representations by
appellant to the trial court that, if he was allowed to represent himself, he would not
be ready to start trial that day. We conclude the record supports an implied finding
by the trial court that appellant’s behavior was a deliberate and intentional effort at
disrupting and obstructing the trial process and not regular delays normally
encountered when a defendant chooses to represent himself. See id. at 563; Lewis,
2016 WL 93760, at *4–6. We therefore hold that the trial court did not abuse its
discretion when it denied appellant’s request for self-representation. We overrule
appellant’s first issue.
II. The trial court did not abuse its discretion when it removed appellant
from the courtroom for a portion of his trial.
In his second issue, appellant asserts that the trial court abused its discretion
when it had him removed from the courtroom for a significant portion of his trial.
According to appellant, this action by the trial court violated his right to be present
during trial under the United States and Texas Constitutions as well as his statutory
right to be present during trial under article 33.03 of the Texas Code of Criminal
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Procedure.3
A criminal defendant may lose his right to be present during trial if, after being
warned by the trial judge that he will be removed if he continues his disruptive
behavior, he continues to conduct himself “in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with him in the
courtroom.” Kessel v. State, 161 S.W.3d 40, 45 (Tex. App.—Houston [14th Dist.]
2004, pet. ref’d) (quoting Illinois v. Allen, 397 U.S. 337, 343 (1970)). Trial judges
have discretion to address stubbornly disruptive defendants, and that discretion
includes removal from the courtroom when the defendant’s behavior is of “an
extreme and aggravated nature.” Id. (quoting Allen, 397 U.S. at 346). We review a
trial court’s decision to remove a defendant from the courtroom for an abuse of
discretion. Id. at 44.
Appellant, despite repeated disruptions, was present during the entire Faretta
hearing as well as the complete voir dire. The trial court warned appellant during
this first day of his trial that if he continued to disrupt the trial proceedings, he would
be removed from the courtroom and listen to the trial in a holdover cell.
Appellant was also present for his arraignment and the State’s opening
statement when his trial resumed the next day. Appellant once again interrupted the
proceedings when his attorney deferred making an opening statement. When
appellant refused to listen to the trial court’s orders to sit down, the trial court had
the jury removed from the courtroom. Appellant continued to argue with the trial
3
Because appellant has not provided any explanation or authority for construing the Texas
Constitution or the Code of Criminal Procedure as conferring greater protection in this area of the
law than the United States Constitution, we do not separately address his state constitutional and
statutory arguments. Vasquez v. State, 324 S.W.3d 912, 918 n.4 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d).
9
judge after the jury left the courtroom. Appellant kept insisting that he was asserting
his right to self-representation. At that point, the trial judge ordered appellant
removed from the courtroom. The judge allowed appellant’s defense counsel to talk
to appellant about what he needed to do to return to the courtroom.
Appellant was brought back into the courtroom after a recess. With the jury
still absent, the trial court warned appellant:
All right Mr. Max-George. Yesterday we discussed the fact that if you
were going to make outbursts in the courtroom, the Court would not be
able to allow you to stay in the courtroom, as much as I want you to be
here for your trial. It’s not helping you and you can’t help your lawyer
if you’re standing up yelling and not responding to the Court. So, it’s
really up to you, sir, as to whether you think that you can maintain
control and go forward without making any outbursts. It’s a very
simple yes-or-no question. Can you stay in the courtroom and follow
the rules that all of the other participants are required to follow?
Rather than answer the judge’s question, appellant continued to argue. The judge
then ordered appellant removed to a holding cell where he would be able to listen to
his trial. The judge informed appellant’s attorney that he would be allowed to speak
with appellant regarding cross-examination and other trial matters. The judge also
informed appellant’s attorney that appellant would be allowed back into the
courtroom when he agreed that he could follow the rules.
Faced with appellant’s continued disruptions of the trial proceedings after
having been warned they would result in his removal from the courtroom, as well as
appellant’s refusal to answer whether he would stop his misconduct, we conclude
that the trial court did not abuse its discretion when it ordered appellant removed
from the courtroom. See Allen, 397 U.S. at 346 (finding nothing unconstitutional
about removing defendant from courtroom after “he was repeatedly warned by the
trial judge that he would be removed from the courtroom if he persisted in his unruly
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conduct”); George v. State, 446 S.W.3d 490, 502 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d) (concluding trial court did not violate defendant’s constitutional and
statutory rights to be present for trial when, after repeated warnings, it had defendant
removed from courtroom for disruptive behavior); Ramirez v. State, 76 S.W.3d 121,
130 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d ) (“As the trial court lacked
reason to believe appellant’s misbehavior would cease, appellant’s expulsion was
not constitutionally improper.”). We overrule appellant’s second issue.
CONCLUSION
Having overruled both of appellant’s issues on appeal, we affirm the trial
court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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