Adrian Calderon v. State ( 2019 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-17-00265-CR
    ADRIAN CALDERON,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 52nd District Court
    Coryell County, Texas
    Trial Court No. 23,372
    MEMORANDUM OPINION
    In one issue, appellant, Adrian Calderon, challenges his conviction for continuous
    sexual abuse of a child younger than fourteen years of age. See TEX. PENAL CODE ANN. §
    21.02 (West Supp. 2018). Specifically, Calderon argues that the trial court erroneously
    denied his right to self-representation. Because we conclude that Calderon’s request for
    self-representation was not timely made, we affirm the judgment of the trial court.
    I.     BACKGROUND
    Calderon was charged by indictment with continuous sexual abuse of a child
    younger than fourteen years of age. See 
    id. He pleaded
    “not guilty” to the charged
    offense, and this matter proceeded to trial.
    At the conclusion of the evidence, the jury found Calderon guilty of the charged
    offense and assessed punishment at life imprisonment in the Institutional Division of the
    Texas Department of Criminal Justice. The trial court certified Calderon’s right of appeal,
    and this appeal followed.
    On original submission, Calderon’s court-appointed appellate counsel filed a
    motion to withdraw from the representation supported by an Anders brief. In his Anders
    brief, counsel stated that, after evaluating the record, “he does not believe that the
    Appellant has any arguable grounds to advance in this appeal.” After conducting a full
    examination of all the proceedings to determine whether the case is wholly frivolous, see
    Penson v. Ohio, 
    488 U.S. 75
    , 80, 
    109 S. Ct. 346
    , 349-50, 
    102 L. Ed. 2d 300
    (1988); In re
    Schulman, 
    252 S.W.3d 403
    , 407 (Tex. Crim. App. 2008), we concluded that the appeal is
    not wholly frivolous. In particular, we disagreed with counsel’s assertion that appellant’s
    desire to discharge his retained trial counsel and represent himself after the State rested
    does not constitute at least an arguable ground on appeal. Accordingly, we granted
    counsel’s motion to withdraw and remanded the matter to the trial court for the
    appointment of new counsel to address any arguable meritorious ground for appeal
    Calderon v. State                                                                    Page 2
    flowing from appellant’s request to discharge retained counsel and represent himself, as
    well as any other arguably meritorious ground counsel saw for reversal or modification
    of the trial court’s judgment. The trial court appointed new appellate counsel in this
    matter, and we have received briefs from both Calderon’s new appellate counsel and the
    State.
    II.      SELF-REPRESENTATION
    In his sole issue on appeal, Calderon asserts that the trial court erred by denying
    his right to self-representation because his request was timely, and because the record
    does not show an intent to disrupt or delay the trial. The State counters that Calderon’s
    request for self-representation was not unequivocal or timely-made and that the request
    was a “calculated attempt” to “disrupt the trial by trying to humiliate, embarrass[,] and
    torment [Calderon’s fourteen year old victim].”
    A.       The Facts
    The record reflects that the State concluded its case-in-chief by calling the child
    victim.    After a very brief cross-examination of the child victim, the State rested.
    Following this, defense counsel indicated to the trial court that Calderon disagreed with
    the trial strategy of defense counsel.        Specifically, defense counsel mentioned the
    following:
    [Defense counsel]:            Okay. Your Honor, yes. There was a series of
    questions that my client had prepared that he
    Calderon v. State                                                                      Page 3
    wanted me to ask of [the child victim].[1] And
    under the circumstances and her demeanor, I
    felt like in my best judgment and as an attorney
    for almost 30 years it was not the thing to do to
    ask those questions. I can enter those questions
    into the record so that there is a record of what
    he wanted me to ask. Because I didn’t ask them,
    he wants to fire me, sir, and he does not want
    me representing him at this point.
    After questioning both defense counsel and the State, the trial court then
    questioned Calderon about whether he wanted to represent himself.                       Calderon
    responded as follows:
    THE DEFENDANT:                Yes, sir. I really want to change counsel, sir.
    ....
    THE DEFENDANT:                Your Honor, I don’t want her working on my
    case. I’d rather have another lawyer, but if
    that’s not possible, Your Honor, if that’s not
    possible then I would have to represent myself.
    In that case of me representing myself, sir, I
    want the witness [the child victim] back in here.
    The trial court allowed a “break” to allow Calderon, his family members, and
    defense counsel to “talk a little bit in private” before proceeding on Calderon’s request to
    represent himself. After the conference, defense counsel announced the following:
    [Defense counsel]:            Mr. Calderon has stated that he wants to
    represent himself from this point forward. I
    understand that I will obviously stay in case he
    has any legal questions that he needs to ask me.
    1Calderon’s proposed questions were written on a piece of paper and admitted into evidence,
    though the child victim was not asked these questions.
    Calderon v. State                                                                           Page 4
    I believe that’s what the law requires, but I will
    not be sitting at counsel table. I will be sitting in
    the courtroom. But I will remain here during
    the course of the trial.
    The State objected and stated:
    [The State]:                Trial court is under no obligation to grant the
    defendant’s request at this time. The State
    would oppose that request. The defendant has
    no legal training that he can point to. I think at
    this point, if he persists in wanting to do that,
    the Court should strongly admonish him again
    as to the possible consequences of that.
    The trial court then began a series of admonishments concerning self-
    representation. At the conclusion of the admonishments, Calderon noted: “Sir, I think
    I’ll be better off representing myself. As far as I seen—I mean as far as I seen throughout
    the whole trial, it seems like the truth is being withheld. I mean, all I want, sir, is—I think
    I’ll be better off representing myself.” After the State renewed its objection to Calderon
    proceeding pro se, the trial court stated that it “cannot grant the request.”
    B.      Applicable Law and Discussion
    We review the denial of a defendant’s request for self-representation for an abuse
    of discretion. Lathem v. State, 
    514 S.W.3d 796
    , 802 (Tex. App.—Fort Worth 2017, no pet.).
    We view the evidence in the light most favorable to the trial court’s ruling, and we imply
    any findings of fact supported by the record and necessary to affirm the ruling when the
    trial court did not make explicit findings. 
    Id. Calderon v.
    State                                                                           Page 5
    The Sixth Amendment to the United States Constitution and Article I, Section 10
    of the Texas Constitution provide that a defendant in a criminal trial has the right to
    assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. However, this right
    to counsel may be waived, and the defendant may choose to represent himself at trial.
    Faretta v. California, 
    422 U.S. 806
    , 821, 
    95 S. Ct. 2525
    , 2534, 
    45 L. Ed. 2d 562
    (1975). To
    invoke the right to represent himself, the defendant must make a request that is clear and
    unequivocal; he must timely assert the request; and he must do so voluntarily,
    knowingly, and intelligently. See 
    Lathem, 514 S.W.3d at 802-03
    . The request must be
    unconditional and must not be a calculated attempt to disrupt, subvert, obstruct, or delay
    the orderly procedure of the courts or to interfere with the fair administration of justice.
    
    Id. at 803.
    And while the exercise of this right may cause some inconvenience and
    possibly some disruption at trial, as long as it is not a calculated obstruction, the delay
    cannot deprive the accused of the right once properly asserted. 
    Id. With regard
    to the timeliness factor, the Court of Criminal Appeals has held that
    a request for self-representation is timely if it is made before the jury was impaneled. See
    McDuff v. State, 
    939 S.W.2d 607
    , 619 (Tex. Crim. App. 1997) (“An accused’s right to self-
    representation must be asserted in a timely manner, namely, before the jury is
    impaneled.”); Ex parte Winton, 
    837 S.W.2d 134
    , 135 (Tex. Crim. App. 1992); Blankenship v.
    State, 
    673 S.W.2d 578
    , 585 (Tex. Crim. App. 1984); see also 
    Lathem, 514 S.W.3d at 803
    ;
    Birdwell v. State, 
    10 S.W.3d 74
    , 77 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); cf.
    Calderon v. State                                                                     Page 6
    Johnson v. State, 
    676 S.W.2d 416
    , 420 (Tex. Crim. App. 1984) (concluding that a request for
    self-representation was timely when it was made after the jury was impaneled but before
    the reading of the indictment and before the presentation of any evidence by the State).
    Here, Calderon did not assert his right to self-representation until after the State rested
    its case-in-chief—much later than the impaneling of the jury and, to the extent it is
    relevant, the reading of the indictment and the presentation of the State’s evidence.
    Accordingly, we cannot say that Calderon timely asserted his right to self-representation.
    See 
    McDuff, 939 S.W.2d at 619
    ; Ex parte 
    Winton, 837 S.W.2d at 135
    ; 
    Blankenship, 673 S.W.2d at 585
    ; 
    Lathem, 514 S.W.3d at 803
    ; 
    Birdwell, 10 S.W.3d at 77
    .
    Despite the foregoing, Calderon invites us to ignore the timeliness requirement
    because there is no solid rationale for the rule, and because the State cannot demonstrate
    that his self-representation would have interfered with the trial process. However, given
    that we are an intermediate appellate court and are bound to follow the precedent of the
    Court of Criminal Appeals, we are not inclined to adopt Calderon’s argument regarding
    the timeliness factor. See State v. Delay, 
    208 S.W.3d 603
    , 607 (Tex. App.—Austin 2006)
    (“As an intermediate appellate court, we lack the authority to overrule an opinion of the
    court of criminal appeals.”), aff’d sub nom. State v. Colyandro, 
    233 S.W.3d 870
    (Tex. Crim.
    App. 2007); McKinney v. State, 
    177 S.W.3d 186
    , 192 (Tex. App.—Houston [1st Dist.] 2005),
    aff’d, 
    207 S.W.3d 366
    (Tex. Crim. App. 2006) (stating that an intermediate appellate court
    must follow binding precedent of the Court of Criminal Appeals); State v. Stevenson, 993
    Calderon v. State                                                                    Page 
    7 S.W.2d 857
    , 867 (Tex. App.—Fort Worth 1999, no pet.) (“Because a decision of the court
    of criminal appeals is binding precedent, we are compelled to comply with its dictates.”).
    This is an argument best made in the Court of Criminal Appeals. Accordingly, we cannot
    say that the trial court abused its discretion by denying Calderon’s untimely request for
    self-representation. See 
    Latham, 514 S.W.3d at 802
    . We overrule Calderon’s sole issue on
    appeal.
    III.   CONCLUSION
    We affirm the judgment of the trial court.
    JOHN E. NEILL
    Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Neill
    Affirmed
    Opinion delivered and filed February 27, 2019
    Do not publish
    [CR25]
    Calderon v. State                                                                   Page 8