John T. Smetek v. State ( 1997 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-96-00251-CR NO. 03-96-00252-CR

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John T. Smetek, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 0935210 & 0935231, HONORABLE LARRY FULLER, JUDGE PRESIDING

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PER CURIAM

A jury found appellant guilty of seven counts of aggravated sexual assault as alleged in two indictments. Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 3, 1983 Tex. Gen. Laws 5311, 5312 & 5315 (Tex. Penal Code Ann. §§ 22.011(a)(2), 22.021(a)(5), since amended). The district court assessed punishment in each cause at imprisonment for seventy-five years.

In two points of error, appellant complains of the admission of extraneous misconduct evidence pursuant to Code of Criminal Procedure article 38.37. Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 1997). Article 38.37 provides that, in a prosecution for a sexual offense against a child, "evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters," including "the state of mind of the defendant and the child" and "the previous and subsequent relationship between the defendant and the child." Id., § 2. The legislature directed that article 38.37 was to apply in any criminal proceeding commencing on or after its effective date, regardless of when the offense on trial was committed. Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 48(b), 1995 Tex. Gen. Laws 234, 2749. Pursuant to the statute, the district court permitted the complainants to testify that appellant gave them alcohol, marihuana, and inhalants during the same period of time in which he was sexually assaulting them.

Both the offenses for which appellant was convicted and the extraneous acts of misconduct were committed approximately twelve years before trial and the effective date of article 38.37. Appellant contends that the application of article 38.37 in these causes violated the constitutional prohibition against ex post facto legislation. U.S. Const. art. I, § 10; Tex. Const. art. I, § 16.

A law violates the ex post facto clauses of the United States and Texas constitutions if it punishes as a crime an act committed before the law was passed which was innocent when done, makes the punishment for a crime more burdensome after its commission, or deprives a criminal defendant of a defense that was legally available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42 (1990); Grimes v. State, 807 S.W.2d 582, 585-86 (Tex. Crim. App. 1991). Clearly, article 38.37 does none of these things. The statute does not change the substantive law regarding sexual crimes against children, but merely defines a category of relevant evidence. Appellant's ex post facto argument is without merit.

The complainants also testified that appellant showed pornographic movies to several boys who lived in their neighborhood. Appellant argues that this was a misuse of article 38.37, since the statute applies only to acts committed by the defendant against the victim. Appellant did not make this objection to the district court. In fact, appellant voiced no objection to the pornographic movie evidence. Nothing is presented for review. Tex. R. App. P. 52(a). Points of error one and two are overruled.

Appellant next complains of the introduction of a videotape showing the interior of the house in which he was living and in which the offenses took place. The house was large, with four stories. The sponsoring witness lived in the house during the relevant time period and managed the property for the owner. Appellant lived in another portion of the house. The witness testified that the videotape, which was taken shortly before trial began, accurately portrayed the house as it previously appeared, although it also showed evidence of subsequent restoration efforts. Appellant argues that because the house had been partially renovated since the offenses took place, the videotape was not an accurate portrayal of the house and therefore was irrelevant.

We review trial court rulings on the admissibility of evidence for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (opinion on rehearing). The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Crim. Evid. 901(a). The witness testified that the videotape accurately portrayed the house as it appeared when appellant lived there. Tex. R. Crim. Evid. 901(b)(1). The witness also identified for the jury any changes that had been made in the house since that time. The district court did not abuse its discretion in determining that the videotape was properly authenticated and relevant. Point of error three is overruled.

In his fifth point of error, appellant contends the prosecutor improperly attacked defense counsel during jury argument. One of appellant's two trial attorneys objected to a portion of the prosecutor's argument, saying it was not supported by the evidence. The objection was overruled. The prosecutor then remarked, "Objecting to what was in evidence, when he wasn't here half the time, ladies and gentlemen." Counsel objected to this remark, saying, "[W]hether I was here or not here is absolutely irrelevant. If I've met with my co-counsel, which I will put on the record that I did do, and went through the evidence as was recorded by him. Then I'm perfectly capable of commenting on it . . . ."

It is improper for a prosecutor to make uninvited and unsubstantiated accusations of improper or unethical conduct by defense counsel. Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985); Byas v. State, 906 S.W.2d 86, 87 (Tex. App.--Fort Worth 1995, pet. ref'd). The prosecutor's remark in this case does not fall in that category. In fact, the prosecutor's observation that counsel had not been present for a portion of the trial was apparently accurate. We find no error in the overruling of appellant's trial objection. Alternatively, we find that any error in the prosecutor's remark was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2). Point of error five is overruled.

In points of error four and six, appellant contends the district court erred by overruling defense counsels' motions to withdraw. The first motion was made orally on the third day of trial, just before the last witness testified at the guilt-innocence phase. Counsel told the court that appellant "has indicated a conflict between his attorneys and himself." Counsel continued, "We're going to have to advise [appellant] we're going to have to withdraw." The court responded, "Well, the court's not going to let you withdraw," and ordered counsel to call the final witness. A week later, on the day of the punishment phase, one of appellant's defense attorneys filed a written motion to withdraw citing a conflict of interest, appellant's hostile attitude and refusal to cooperate, and his failure to pay his attorney fees. The motion also stated that appellant had dismissed counsel and directed him not to appear. The court overruled the motion at that time, but permitted counsel to withdraw at the conclusion of trial.

A defendant's right to the counsel of his choice cannot be manipulated so as to obstruct orderly court procedure or to interfere with the fair administration of justice. Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). A defendant may not wait until the day of trial to request that counsel be dismissed. Id. We can think of nothing more likely to disrupt orderly procedure or more calculated to injure a defendant's rights than to permit the withdrawal of counsel in the middle of a trial. The district court did not abuse its discretion by overruling the motions to withdraw. Points of error four and six are overruled.

Finally, appellant contends the district court should have conducted a competency hearing before beginning the sentencing phase of trial. See Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996); Tex. Code Crim. Proc. Ann. art. 42.07(2) (West Supp. 1997) & art. 46.02, § 2(b) (West 1979). On the day set for the punishment hearing, defense counsel filed a motion for a competency hearing citing appellant's refusal to cooperate, his refusal to follow advice, and his history of mental incapacity. The record reflects that a jury had previously determined that appellant was incompetent to stand trial, but that his competence was later restored. The court overruled the motion and proceeded with the sentencing hearing, which primarily consisted of a review and discussion of the presentence report. Before pronouncing sentence, the court permitted appellant to make a statement. The gist of this statement, which fills approximately ten pages of the statement of facts, was that appellant is the victim of a conspiracy involving the complainants and their families, the lawyers, and the courts.

On appeal, appellant relies entirely on his statement to the court as evidence of his incompetence. This statement was made at the conclusion of the sentencing hearing, however, while appellant's contention is that the court should have held a competency hearing before the sentencing proceeding began. Obviously, the court had not heard appellant's statement when it overruled counsel's motion for a competency hearing. In any event, a court is required to conduct a competency hearing only if there is some evidence that could rationally lead to a finding of incompetence. Arnold v. State, 873 S.W.2d 27, 35-36 (Tex. Crim. App. 1993); Williams v. State, 663 S.W.2d 832, 833-34 (Tex. Crim. App. 1984). We find nothing in appellant's statement to indicate that he did not have the present ability to consult with his lawyers with a reasonable degree of rational understanding or that he did not have a factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02, § 1(a) (West 1979). To the contrary, the statement shows that appellant clearly understood the nature of the proceedings and was fully capable, if unwilling, to consult with his attorneys. Appellant's wild and unsubstantiated accusations against his attorneys and others do not constitute evidence of incompetence to stand trial. Point of error seven is overruled.

The judgments of conviction are affirmed.

Before Justices Powers, Jones and Kidd

Affirmed

Filed: June 12, 1997

Do Not Publish

t of error five is overruled.

In points of error four and six, appellant contends the district court erred by overruling defense counsels' motions to withdraw. The first motion was made orally on the third day of trial, just before the last witness testified at the guilt-innocence phase. Counsel told the court that appellant "has indicated a conflict between his attorneys and himself." Counsel continued, "We're going to have to advise [appellant] we're going to have to withdraw." The court responded, "Well, the court's not going to let you withdraw," and ordered counsel to call the final witness. A week later, on the day of the punishment phase, one of appellant's defense attorneys filed a written motion to withdraw citing a conflict of interest, appellant's hostile attitude and refusal to cooperate, and his failure to pay his attorney fees. The motion also stated that appellant had dismissed counsel and directed him not to appear. The court overruled the motion at that time, but permitted counsel to withdraw at the conclusion of trial.

A defendant's right to the counsel of his choice cannot be manipulated so as to obstruct orderly court procedure or to interfere with the fair administration of justice. Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). A defendant may not wait until the day of trial to request that counsel be dismissed. Id. We can think of nothing more likely to disrupt orderly procedure or more calculated to injure a defendant's rights than to permit the withdrawal of counsel in the middle of a trial. The district court did not abuse its discretion by overruling the motions to withdraw. Points of error four and six are overruled.