Bohannan, Michael Wayne ( 2015 )

3 «f7-15
NO. PD-0347-15
ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
• ii—i-i a — — im •• hmiiii—^—^—•—*—»^—^
MICHAEL W. BOHANNAN COURT OF CRIMINAL APPEALS
v.
29 21
THE STATE OF TEXAS
Abe! Acosta, CSerk
From Appeal No. 09-13-00090-CR
Trial Cause No. 12-10-10953-CR
Montgomery County
FILED M
COURT OF CRIMINAL APPEALS
MAY 29 2015
Abel Acosta, Clerk
PETITION FOR DISCRETIONARY REVIEW
Michael W. Bohannan #1841746
9601 Spur 591
AmarillO/ Texas 79107-9606
806-381-7080
CERTIFICATE OF INTERESTED PERSONS
Bohannan believes the following persons have an interest in
the cause:
THE HONORABLE MICHAEL T. SEILER
345th District Court Judge
301 N. Main Street/ Suite 210
Conroe, Texas 77301
THE HONORABLE LISA MICHALK
221st District Court Judge
301 N. Main Street, Suite 214
Conroe, Texas 77301
THE HONORABLE OLEN UNDERWOOD, Presiding Judge
Second Administrative Judicial Region of Texas
301 N. Thompson, Suite 102.
Conroe, Texas 77301
JIM PREWITT, Asst. District Att'y
Montgomery County District Attorney's Office
207 W. Phillips Street
Conroe, Texas 77301
WILLIAM DELMORE, Asst. District Att'y
Montgomery County District Attorney's Office
207 W. Phillips Street
Conroe, Texas 77301
OSCAR L. "JACK" SOMMERS, Att'y at Law
414 W. Phillips Street, Suite 101
Conroe, Texas 77301
EARL L. PRYOR, Att'y at Law
220 W. Davis Street
Conroe, Texas 77301
ORAL ARGUMENT STATEMENT
Petitioner Bohannan does not believe oral argument is
necessary for the resolution of the issues raised in this
Petition For Discretionary Review. However, should the Court
or the State deem it necessary, Bohannan requests that he be
provided an opportunity to be a participant in those arguments,
perhaps through the means of electronic video-conferencing.
TABLE OF CONTENTS Page
CERTIFICATE OF INTERESTED PERSONS i
ORAL ARGUMENT STATEMENT — ; - • ii
TABLE OF CONTENTS ; ; i ; . ;ii
TABLE OF AUTHORITIES ; : ; - iii
STATEMENT OF THE CASE , -— vl
PROCEDURAL HISTORY - . — ix
GROUNDS FOR REVIEW , ~ x
ARGUMENTS
I. THE APPELLATE COURT'S OPINION CONFLICTS WITH THE
CLEARLY ESTABLISHED DUE PROCESS RIGHTS FOUND IN VITEK
V. JONES, COLEMAN V. DRETKE, MEZA v., LIVINGSTON, AND
EX PARTE EVAN
II. THE APPELLATE COURT'S OPINION CONFLICTS WITH THAT OF
THE U.S. SUPREME COURT IN FARETTA V. CALIFORNIA IN
THEIR APPROVAL OF THE TRIAL' COURT"S' DENIAL OF
BOHANNAN'S RIGHT TO REPRESENT HIMSELF IN THE CRIMINAL
PROCESS ; ; : • 5
III. APPELLANT WAS IMPERMISSIBLY DENIED HIS RIGHT TO
PROCEED PRO SE IN HIS APPEAL ; ; 10
IV. THE APPELLATE COURT'S OPINION PERMITTING THE STATE TO
PREVENT THE DEFENDANT FROM ADMITTING THE BASIS FOR A
MISTAKE OF LAW DEFENSE THROUGH A MOTION IN LIMINE,
RENDERS THAT LEGISLATIVELY PROVIDED DEFENSE
UNAVAILABLE AND UNPRESENTABLE ; 11
11
Page
V. THE APPELLATE COURT"S OPINION MISCONSTRUED TEXAS
HEALTH AND SAFETY CODE §841.081(a) AND MISAPPLIED IT
TO BOHANNAN'S CLAIMS — 13
VI. THE APPELLATE COURT SHOULD HAVE CONSIDERED THE PRO SE
CLAIMS RAISED BY BOHANNAN IN HIS PRO SE BRIEFING
WHERE APPELLATE COUNSEL HAD BEEN IMPOSED UPON HIM
AGAINST HIS WISHES 'i . ; '• — 14
CONCLUSION .- ; —'• 14
CERTIFICATE OF MAILING AND SERVICE 15
TABLE OF AUTHORITIES Page
SUPREME COURT CASES
Faretta v. California, 422 U.S. 806 (1975) 5, 8, 9
Vitek v. clones, 445 U.S. 491 (1980) 1, 3, 5
FEDERAL APPELLATE CASES
Coleman v. Dretke, 395 F.3d 216
(5th Cir. 2004) -_ ; _ 1,
Meza v. Livingston, 607 F.3d 342
(5th Cir. 2010) 1,
TEXAS CASES
Basham v. State, 608 S.W.2d 677
(Tex. Crim.App. 1980) — 12
Blankenship v. State, 673 S.W.2d 578
(Tex. Crim.App., 1984) 8, 9
Burgess v. State, 816 S.W.2d 424
(Tex.Crim.App. 1991) ,
Contreras v. State, 915 S.W.2d 510
(Tex.Crim.App. 1995) 12
Cormier v. State, 85 S.W.3d 496
(Tex.App. - Houston [1st Dist] 2002) 10
Crawford v. State, 136 S.W.3d 417
(Tex.App. - Corpus Christi 2004) 10
in
Page
Ex parte Evan, 338 S.W.3d 545
(Tex.Crim.App. 2011.) _ 1, 3
Ex parte Jimenez, 361 S.W.3d 679
(Tex.Crim.App. 2012) • 2, 3
Ex parte Taylor, 36 S.W.3d 883
(Tex.Crim.App.:2001) • 3
Ex parte Thomas, 906 S.W.2d 22
(Tex.Crim.App. 1995) , 10
Ex parte Winton, 837 S.W.2d 134
(Tex.Crim.App. 1992) . 9
Fewins, v. State, 170 S.W,3d 293
(Tex.App. - Waco 2005) _ 10
Flores v. State, 299 S.W.3d 843
(Tex.App. - El Paso 2009) 7
In re Bohannan, 388 S.W.3d 296
(Tex. 2012) vi, vii, 4
In re Bohannan, 379 S.W.3d
(Tex.App. - Beaumont 2010) ~_ vi
In re Brookshire Grocery Co., 250 S.W.3d 66
(Tex. 2008) 5
Marion v. State, 936 S.W.2d 5
(Tex.App. - El Paso 1996) ; 1 10
Robinson v. State, 240 S.W.3d 919
(Tex-Crim.App. 2007) . 8
Sickels v. State, 170 S.W.3d 298
(Tex.App. - Waco 2005) — 10
State v. Dickerson, 864 S.W.2d 761
(Tex.App. - Houston [1st Dist] 1993) 5
Webb v. State, 533 S.W.2d 780
(Tex.Crim.App. 1976) . — 10
FEDERAL LAW
United States Constitution - 6th Amendment 6
Due Process Clause • 6, 13
Due Course of Law Clause 13
IV
Page
STATE LAW
SB746 §16, 84th Leg. Regular Session • vi
Texas Code of Criminal Procedure art. 1.051 — . 9, 10
Texas Constitution, Article I §10 — . 6, 9, 10
Texas Health and Safety Code, Chapter 841 vi, vii, 2, 4
§841.061 L_i ; — 4
§841.081 ; 4, 13,.14
§841.085 ; . * 4
§841.150(a) : « 14
Texas Penal Code §8.03(b) —; •- i2
STATEMENT OF THE CASE
This appeal arises from Bohannan's being given a life
sentence, for the alleged violation of a civil commitment order
which both the Ninth Court of Appeals and the Texas Supreme Court
had reversed. CR 12-13, .280-82; In re Bohannan, 379 S.W.3d 293
(Tex.App. - Beaumont 2010); In re Bohannan, 388 S.W.3d 296 (Tex.
2012). That conviction being, for an act found to have occurred
after the appellate court's reversal, under an indictment returned
after the Texas Supreme Court's reversal, and obtained in a trial
held after the Texas Supreme Court's mandate issued. CR 12-13,
280-82.1
On January 22, 2009, Bohannan was ordered to be civilly
committed under Chapter 841 of the Texas Health and Safety Code
("Chapter 841"), by Judge Michael T. Seiler, 435th Judicial
District Court of Montgomery County, Texas. RR Vol 7, State's
Ex. 1.
On March 31, 2009, Bohannan was arrested, under Cause No.
1152110, in Tarrant County, CDC #1, as a result of six alleged
"bracelet-gone" alarms generated by the electronic GPS monitoring
equipment assigned and affixed to Bohannan,'s person, during the
months of February and March of 2009. CR 40; RR Vol 7, State's Ex.
6, pp. 6, 9-11. On April 1, 2009, Bohannan was indicted by a
Tarrant County grand jury for violating Tex. H&S Code §841.085,
because of five of those six alleged alarms. CR 246-47.
On July 22, 2010, the 9th District Court of Appeals found
Bohannan had received an unfair Chapter 841 commitment hearing
and reversed that order and remanded the matter back to the trial
court for the provision of a fair hearing. In re Bohannan, 379
It has come to Bohannan's attention that, since the October 29, 2014
appellate court's affirmance of Bohannan's conviction, the Texas Legislature
is attempting to clarify to the state's prosecutors their intent is that
commitment order violations are not criminal acts until such time as those
orders have become final, i.e. no longer subject to the appellate process.
See SB 746 §16, 84th Leg. Reg. Session. Bohannan is attempting, at this
time, to obtain a copy of that legislation.
vi
S.W.3d 293. Instead of providing Bohannan that fair hearing, the
State filed an appeal with the Texas Supreme Court and continued
subjecting Bohannan to the stigmatizing consequences and
qualitatively different treatment reserved for those persons
civilly committed under Chapter 841, including §841.085(a),
despite the appellate court's unfair hearing determination. In
re Bohannan, 388 S.W.3d 296.
As a result of the appellate reversal, the State informed
the Tarrant County trial court, CDC #1, that she could not pursue
a civil commitment violation against Bohannan because "Appeal
pending before the Texas Supreme. Court." CR 186, 235,, 316, 352.
Based upon the State's contention, the Fort Worth trial court
dismissed the pending case. Id.
The Texas Parole Board provided Bohannan three days of
hearings in January and February 2011, after which their hearing
officer found that:
"Based upon the Appellate Court's decision [Bohannan] cannot have violated
the Civil Commitment Order because he was not under a Civil Commitment
Order."
CR 186, 318, 350. On.March 15, 2011, Bohannan was transferred
from the Tarrant County Jail, to a parole-division-contracted
secure correctional facility, in Fort Worth, on parole supervision/
confinement; or so Bohannan was told. CR 40-41; RR Vol 4, p..110,
LL 24-25, p. Ill LL 1-8.
Despite the State's still-pending Texas Supreme Court appeal
of the appellate reversal (which is why the State told the
Tarrant County court she could not prosecute the alleged
commitment violation), the State recharged Bohannan for. the
alleged Tarrant County commitment violations, in Montgomery
County, on April 21, 2011. CR 248-49. The indictment, filed as
Cause No. 11-04-04462-CR, was transferred to the 435th Judicial
District Court (the same court and judge the appellate court
found denied Bohannan a fair commitment hearing by abusing his
discretion). RR Vol 1, p. 6 LL 12-15. That 2011 cause alleged
four of the same "bracelet-gone" allegations contained in the
VII
dismissed Tarrant County indictment, plus two more allegations
that Bohannan refused to sign paperwork agreeing to be on civil
commitment (after the appellate court, the Parole Board, and the
TDCJ's attorneys all told Bohannan his commitment had been
reversed and he was, therefore, not subject to a commitment
order). CR 248-49. Bohannan was arrested at the Fort Worth
parole-contracted secure correctional facility on April 24, 2011,
and transported to the Montgomery County Jail, two days later,
where he would be held without bond. RR Vol' 3, p. 8-2 LL 3-10.
On August 31, 2012, the Texas Supreme Court, also finding
Bohannan had not been provided a fair commitment hearing, upheld
the appelate court's July 22, 2010 reversal order. RR.Vol 7,
Def. Ex. 37. On October 9, 2012, Bohannan filed a pro se
application for extraordinary relief in the 9th District Court
of Appeals under Cause No. 09^-12-00473-CR. -The appellate court
treated it as a Petition For a Writ of Mandamus and, on October
11, 2012, requested the trial court judge and prosecutor (the
respondents in the cause) submit a response..
On October 16, 2012, within two working days of receiving
the appellate court's mandamus response request, the State's
prosecutor returned to a Montgomery County grand jury.and obtained
another indictment alleging Bohannan violated the reversed 2009
commitment order. CR 12-13. That indictment, filed as
Cause No. 12-10-10953-GR, was also assigned to Judge Seiler and
the 435th Judicial District Court; where the previous .2011
indictment remained pending. Id.; CR 373. The new, 2012 indictment,
contained each of the allegations raised in the already pending
2011 cause, plus the other "bracelet-gone" allegation from the
dismissed Tarrant, County indictment, and an allegation involving
an alleged April 24, 2011 secure correctional facility rule
violation. CR 12-13. The 2012 indictment, obtained after
Bohannan's mandamus request, also contained three new enhancement
paragraphs. Id.; CR 357-59;. RR Vol 7, Def. Ex. 33 & 34. The
addition of those paragraphs, after Bohannan's mandamus request,
subjected Bohannan to punishment for life imprisonment, instead
of the 10-year maximum he was facing before he requested mandamus
viii
from the appellate court.
On February 11, 2013, the 2012 cause went to trial. CR 8.
Bohannan acquiesced to the trial court's unmistakeable denial of
his right to represent himself and cooperated with imposed counsel,
who had been appointed to the 2011 cause (but not the 2012 cause)
and who was not ready to go to trial. RR Vol 2, pp. 6-11. Though
the trial court submitted a disjunctive charge to the jury, and
permitted it to return a general verdict,, it found Bohannan guilty
of only the single, April 24,. 2011, "Date of Offense", secure
correctional facility rule violation. CR 267^-75, 280-81. No one
from that facility was present to testify at the trial. CR & RR.
On February 15, 2013, imposed counsel filed his "Motion to
Withdraw", "Motion for New Trial and Motion In Arrest of Judgment",
and "Notice of Appeal". CR 292-301. On February 19, 2013, imposed
counsel'smotion to withdraw was granted by the trial court. CR
296. On February 20, 2013, Bohannan filed his motion to strike
imposed Counsel's February 15th motions. CR 303-05. Nevertheless,
appellate counsel was imposed upon Bohannan two days later. CR
323. On February 28, 2013, Bohannan filed his "Amended Motion
for New Trial". CR 324-76. On March 8, 2013, Bohannan filed his
"Amended Motion in Arrest of Judgment"; CR 379-83. On March 13,
2013, Bohannan filed his "Amended Notice of Appeal". CR 384-85.
Bohannan did not request the appointment of appellate counsel in
his notice of appeal and asserted his right of self-representation
therein. Id. The trial court conducted no; hearings on any of the
post-trial motions and they were, therefore, overruled by
operation of law.
On October 29, 2014, the 9th District Court of Appeals
handed down its memorandum opinion and judgment affirming I.?:.-.
Bohannan's sentence and punishment.
PROCEDURAL HISTORY
On October 29, 2014, the Ninth District Court of Appeals
handed down its Judgment and Memorandum Opinion this Petition
for Discretionary Review seeks review of. Appendix pp. 1-17.
ix
On January 8, 2015, the Ninth District Court of Appeals
handed down its order overruling Bohannan's motion for rehearing,
On February 20, 2015, the Ninth District Court of Appeals
handed down its order overruling Bohannan's motion for en banc
review.
GROUNDS FOR REVIEW
I. The Appellate Court's Opinion Conflicts With The Clearly
Established Due Process Rights Found In Vitek v. Jones,
Coleman v. Dretke, Meza v. Livingston, And Ex Parte Evan.
II. The Appellate Court's Opinion Conflicts With That Of The
U.S. Supreme Court In Faretta v. California In Their .
Approval Of The Trial Court's Denial Of Bohannan's Right
To Represent Himself In The Criminal Process.
III. Appellant Was Impermissibly Denied His Right To Proceed
Pro Se In His Appeal.
IV. The Appellate Court's Opinion Permitting The State To
Prevent The Defendant From Admitting The Basis For A
Mistake Of Law Defense Through A Motion In Limine,
Renders That Legislatively Provided Defense Unavailable
And Unpresentable.
V. The Appellate Court's Opinion Misconstrued Texas Health
And Safety Code §841.081(a) And Misapplied It To
Bohannan's Claims.
VI. The Appellate Court Should Have Considered The Pro Se
Claims Raised By Bohannan In His Pro Se Briefing Where
Appellate Counsel Had Been Imposed Upon Him Against His
Wishes.
ARGUMENT
I. THE APPELLATE COURT'S OPINION CONFLICTS WITH THE CLEARLY
ESTABLISHED DUE PROCESS RIGHTS FOUND IN VITEK V. JONES,
COLEMAN v. DRETKE,, MEZA V. LIVINGSTON, AND EX PARTE EVAN.
Bohannan's first appellate claim was that the trial court
erred in denying his motion to quash the indictment AND proceeding
to trial when the underlying civil judgment had been reversed and
remanded by the court of appeals and that reversal had been upheld
by the Texas Supreme Court. The appellate court initially overruled
issue one finding that "[b]ecause Bohannan filed his motion on the
first day of trial, he did not preserve error." App. Op. @ 7.
Bohannan, well before trial, filed a pre-conviction application for
a writ of habeas corpus, with the trial court, addressing the Due
Process claims. CR 47-49. Again prior to trial, Bohannan filed a
motion to exclude the vacated judgment and order, and requested the
motion be set for a hearing. CR 225-31. Bohannan's imposed counsel,
on the date of trial; filed a motion to quash based in part on the
appellate reversal, and obtained a ruling thereon. CR 225-31. The
trial court did not address Bohannan's motions and denied imposed
counsel's. RR Vol 2, p. 12. Therefore, at a minimum, Bohannan's
claim that the court erred by proceeding to trial with the
underlying civil commitment order having been reversed was preserved.
That preservation is likely why the appellate court went on
to address the merits of Bohannan's first claim. App. Op. @ 7-8.
The appellate court, while misstating Section 841.081(a) of the
Texas Health and Safety Code, noted that a commitment order is
effective "immediately on entry of the order". Id. @ 7. The
appellate court found "the reversal of the civil commitment
judgment was not enforceable until the Supreme Court's mandate
issued" and allowed Bohannan to be tried for a violation of -the
reversed civil commitment judgment, after that mandate had.issued
voiding that judgment. Id. @ 7-8. The^..appellate court reviewed
the clain as one involving a common civil judgment, failing to
even consider the Due Process implications arising from Vitek v.
Jones, 445 U.S. 491, 494 (1980), relying instead on Ex parte
1 -
Jimenez. 361 S.W.3d 679, 683 (Tex.Crim.App. 2012). App. Op @ 7-8.
Initially, Bohannan would note that Texas Health and Safety
Code Chapter 841 does not address whether or not the stigmatizing
and qualitatively different criminal punishment that civil
committees are subjected to applies while the very legality and
constitutionality of that commitment is pending resolution through
3
the appellate process. And more so, whether it applies after an
appellate court has already determined a commitment order should
be reversed.
The appellate court's reliance on Jimenez is, at best,
misplaced. Jimenez was convicted of possession of a firearm while,
at the time of that possession, being a convicted felon, under a
final criminal judgment. While that judgment was later overturned
in a habeas action, this court found that the conviction for felon
in possession should stand because be was one at the time of his
possession. Jimenez, 361 S.W.3d 679.
Bohannan was convicted of committing a civil commitment
violation which occurred on April 24, 2011. CR 280-82. This was
after Bohannan had obtained the appellate court's determination
that he had not been provided the process he was due to be committed,
a determination which the State appealed. In the criminal realm,
a prior judgment cannot be used in the punishment of a later act
unless it is a "final" judgment. In Jimenez, the prior criminal
judgment was final at the time it was used to prove felon in
possession (and apparently final at the time of that possession as
well). In this case, the civil commitment remained on appeal at
the time of every violation alleged against Bohannan; acts which
could only be criminal through a valid commitment judgment. And
- 2 -
3
See Footnote #1.
There is no Footnote #4
the single act for which Bohannan was convicted occurred AFTER
the appellate court had found his commitment judgment to be
invalid.
In Jimenez, the defendant was convicted of a criminal offense
while his prior felony judgment remained valid and unquestioned.
In this case, the Texas Supreme Court had "finally" upheld the
reversal of Bohannan's underlying civil commitment order, and
mandated such, prior to the start of Bohannan's trial. The
prosecutor knew he was prosecuting Bohannan for violating an order
of commitment the State had .illegally obtained. It is well
established that "[t]he State of Texas has only one, indivisible
interest in a criminal prosecution, to see that justice is done".
Ex parte Taylor, 36 S.W.3d 883, 887 (Tex .Crim.App. 2001.) (citing
Tex. Code Grim., Proc art. 2.01). As the State's representative in
a criminal prosecution, a prosecutor also has that only one,
indivisible interest - to see that justice is done.
In Jimenez, at the. time he possessed the firearm., no court
had told him he was not a felon, and he did not have any appeal
pending questioning his felony conviction. In Bohannan's case,
not only had he appealed the improper civil judgment, but an
appellate court had told him.that judgment had been "reversed"
and, therefore, at least to his understanding of that term, was
invalid.
Jimenez aside, the trial court's subjecting Bohannan to'trial
violated his well-established Due Process rights. The U.S. Supreme
Court established the principle that a State cannot subject a
person to stigmatizing consequences and qqualitatively different
treatment without the provision of due process. Vltek v. Jones,
445 U.S. 491, 494 (1980). The greater the difference and ,the
consequences, the greater due process protections needed. Id.
This principle has since been well-established. See Coleman v.
Dretke, 395 F.3d 216 (5th Cir. 2004); Meza v. Livingston, 607 F.3d
342 (5th Cir. 2010); Ex parte Evan, 338 S.W.3d 545 (Tex.Crim.App.
2011).
- 3 -
The Chapter 841 civil commitment of a person results in
stigmatizing consequences and ..qualitatively different conditions
being imposed (both statutorily and administratively) upon the
person. See Tex. H&S Code, Subchapter E, §841.081 et seq.; RR Vol
3 p. 36 LL 12-14; RR Vol 7, State's Exhibits 3A-3F and 4A-4E. The
criminalization of civil commitment requirements, which are not
normally criminal, is one of the many quantitatively different
conditions imposed upon persons so committed. Tex H&S Code
§841.085; RR Vol 2, pp. 52-53; RR Vol 7, State's Exhibits 3A-3F
and 4A-4E.
The Texas Legislature has required that before civilly
committing a person, that person is entitled to a jury trial with
a number of procedural protections, including the provision of an
expert to assess whether the person suffers from the statutorily
defined "behavioral abnormality" required to be found before the
person can be committed. Tex. H&S Code §841.061. In Bohannan's
commitment process, the committing court, on the day of trial,
found that the "expert." the court had appointed for Bohannan was
not the "expert" required, and as a result,, prohibited that person
from testifying that Bohannan does not suffer from the required
"behavioral abnormality" - the trial court also refused to continue
the trial to allow Bohannan to obtain a replacement "expert". In re
Bohannan, 379 S.W.3d 293 (Tex.App. - Beaumont 2010). On appeal,
the appellate court found Bohannan was not provided a fair trial
because the person was an expert and her testimony should have
been made available to the jury. Id. The appellate court then
reversed Bohannan's commitment order because he had not been
provided the protections he was due (i.e. a fair trial with the
required expert). Id. The State appealed and the Texas Supreme
Court affirmed the reversal of Bohannan's commitment order. In re
Bohannan, 388 S.W.3d 296 (Tex. 2010). The State has had many
years now, since the appellate courts', reversals., in which to
provide Bohannan the process he is due to properly subject him to
the stigmatizing and qualitatively different treatment,
criminalizing what would otherwise be non-criminal acts - not even
misdemeanors. It has not. Nevertheless, the State subjected
- 4 -
Bohannan to that ^qualitatively different treatment, without the
provision of the process due, in violation of Vitek's clearly
established principle, giving him a LIFE sentence.
Because the court of appeals has decided an important question
of state and federal law that has not been, but should be, settled
by this Court, and/or has decided an important question of, state
and federal law in a way that conflicts with the applicable
decision of this Court and the U.S. Supreme Court, discretionary
review is warranted, and should be granted.
II. THE APPELLATE COURT'S OPINION CONFLICTS WITH THAT OF THE
U.S. SUPREME COURT IN FARETTA V. CALIFORNIA IN THEIR
APPROVAL OF THE TRIAL COURT'S DENIAL OF BOHANNAN' S RIGHT
TO REPRESENT HIMSELF IN THE CRIMINAL PROCESS.
Bohannan did NOT request the appointment of counsel in the
cause and counsel was NEVER appointed to represent Bohannan in the
cause. CR & RR. Bohannan repeatedly notified the. trial court that
he was exercising his right of self-representation in the cause.
CR 71-78, 50, 54, 62, 82, 92, 99, 111;, 113, 115, 117, 120, 124,
127, 129, 132, 134, 136, 138, 140, 145, 147, 153, 161, 164, 167,
170, 189, 193, 202, 206, 209, 213, 221, 303,. 324, 379, and 384.
On January 25, 2013, Bohannan filed what he titled as "Defendant's
Motion To Recuse/Disqualify Judge" wherein Bohannan prominently
placed his self-representation assertion at the beginning of that
motion. CR 92. The nature of a motion is determined by its content,
not its caption. In re Brookshire Grocery Co., 250 S.W.3d 66 (Tex.
2008); State v. Dickerson, 864 S.W.2d 761 .(Tex.App. - Houston. [1st
Dist] 1993). The State has admitted that Bohannan asserted his
right of self-representation in his written motions. State's Brief
@ 24. On January 31, 2013; Judge Seiler heard Bohannan's motion
(to recuse) wherein Bohannan asserted his right of self-representation
in the cause. CR 97. Judge Seiler "denied the Rule 18a Motion to
Recuse", and then referred the "case to the Presiding Judge of the
Second Administrative Judicial Region", Judge Underwood. Id. On
February 4, 2013, Judge Underwood, without providing the opportunity
for a hearing on the motion, denied it specifically noting "[t]he
- 5 -
Court has reviewed the motion" in which Bohannan clearly and
unequivocaly asserted his right to self-representation. CR 173.
By January 3, 2013 letter, Bohannan notified the State's
prosecutor of his intention to represnt himself in this cause and
detailed his discovery needs. CR 90-91. On January 25, 2013,
Bohannan mailed a letter to the trial court's coordinator, with a
copy going to the prosecutor, informing them ."I reiterate, I am
representing myself in the case", and requesting his pending .
motions be set for a hearing. CR 320-21. The cause's Criminal
Notes indicate the clerk/coordinator responded to the letter on
January 28, 2013. Supp CR
On February 4, 2013, Bohannan and Counsel Pryor (his appointed
counsel in the 2011. cause.) appeared for what was a scheduled trial
date for both the 2011 cause and this cause. Supp CR —— ; CR 8.
The trial court heard counsel's motion for continuance. CR 8.
During the hearing, Bohannan was called to the bench to address
his pro se speedy trial motion filed in this cause. CR 197; Supp
RR 13-16. In that speedy trial motion, Bohannan prominently
stated at its beginning that he was "exercising his right to self-
representation in the cause, pursuant to the Sixth Amendment of
the United State Constitution, the Due Process Clause, and Article
I, Section 10 of the Texas Constitution". CR 124. Judge Michalk,
presiding judge, denied the motion. Supp RR p. 16 LL 22. During
his testimony regarding the speedy trial motion, Bohannan was
detailing the problems he had with counsel appointed in the 2011
cause when he informed the trial court "I'm in a little quandry
here. I'll explain it to you in just a second". Id. @ 15 LL 12-13.
Before Bohannan could do so, Judge Michalk told Bohannan "[y]ou
need to be quiet", "[s]o have a seat". Supp RR p. 15 LL 12, 22.
Bohannan asked the judge, "[c]an I explain my problem to you?" to
which Judge Michalk responded "[n]o. I don't want to hear anything
else you have to say at this point." Id. LL 24-25. Prior to that,
the Judge acknowledged her awareness of Bohannan's wanting to proceed
pro.se by stating "[y]ou ... want all your attorneys removed ...".
Id. LL 16-17;
- 6 -
The next day, February 5, 2013, Bohannan mailed his proffer
of the testimony he would have offered (and the pleadings he
would have presented) had he not been ordered to "be quiet" and
to go "have a seat". CR 196-200.
The appellate court based its denial of Bohannan's claim, in
part, on the fact that "[a]n attorney request form dated April 27,
2011, and an order appointing counsel are attached as exhibits to
a pro se motion for new trial". App. Op @ 15. Based on those two
documents, the appellate court held:
"These documents indicate Bohannan requested or accepted the appointment of
counsel and that he relied upon counsel for his defense to the criminal
7-~ prosecution of the alleged violation of the civil' commitment order."
Id. Both of those documents are for the 2011 cause, a cause
which never went to trial and was eventually dismissed * CR 373.
That is evidenced not only by the cause number affixed to each
document, but by the fact that each was dated long before this 2012
cause came into existance.
The appellate court also based its denial of .Bohannan's claim
on "a letter, dated October 1, 2012, from Bohannan to the trial
court." App;. Op @ 14. The appellate court correctly noted that:
"In the'letter, Bohannan refers.to trial, counsel as 'my currently appointed
counsel' and mentions that at that time counsel 'had been appointed for
over nine weeks' and stated that Bohannan. had been informed of the
appointment on July 24, 2012."
Id. @ 14-15. Bohannan drafted that letter on October 1, 2012, and
mailed it to the trial court judge, court clerk,. DA, and counsel
on October 2, 2012. Id. This cause did not even come into
existance until two weeks later. CR 12-13. Obviously, Bohannan's
letter was addressing his counsel, appointed: for the 2011 cause,
not this one. The right to counsel is offense/cause specific.
Flores v. State, 299 S.W.3d 843 (Tex.App. - El Paso 2009). The
- 7 -
5 Notably, the appellate court's holding is based upon the two exhibits
attached to Bohannan's "pro se" motion for a new trial, a motion which
itself affirmed Bohannan was "exercising his right of self-representation."
CR 324.
appellate court's holding that Bohannan's acceptance of counsel,
in an earlier cause, somehow supports the denial of his right to
self-representation in a later cause, and at a later date, has
so far departed from the accepted and usual course of judicial
proceedings, and extensive precedent, as to call for an exercise
of the Court of Criminal Appeals' power of supervision. See
Burgess v. State, 816 S.W.2d 424, 428-29 (Tex.Crim.App. 1991)
(defendant must be allowed to represent himself even when asserted
at "eleventh hour"); Blankenship v. State, 673 S.W..2d 578, 585 ,
(Tex.Crim. App. 1984)(the right to defend pro se is timely if
asserted before the jury was empaneled).
The appellate court concluded that the failure to allow
Bohannan to proceed pro se was not an abuse of the trial court's
discretion because Bohannan invoked his right to represent
himself in his filed pro se motions which, the trial court was not
obligated to read, and Bohannan did not ask to proceed verbally
during the pretrial hearing and arraignment. App. Op @ 15. The
defect in that conclusion is that not only did the trial court
read some of those pro se motions, but it ruled upon them as well.
Once a trial court rules on a pro se motion, there is no reason
why it should be insulated from review. Robinson v. State, 240
S.W.3d 919, 922 (Tex.Crim.App. 2007). , Both Judge Seiler and
Judge Underwood ruled on Bohannan's pro se motion seeking recusal
of Judge Seiler, wherein Bohannan asserted his right to self-
representation. Neither judge provided Bohannan the admonishments
and determination Faretta required they do before denying his
request to proceed pro se. Then, the week before trial, Judge
Michalk denied Bohannan's motion for a speedy trial wherein he
again asserted his right of self-representation; and did; so
after stating her awareness that Bohannan wanted to have all his
attorneys removed. Without providing Bohannan the admonishments
and determination Faretta required, she told Bohannan to be quiet
and take a seat. Then when Bohannan tried one more time to
verbally inform the court of his intention to proceed pro se,
Judge Michalkforcefully told him "No. I don't want to hear
- 8 -
anything else you have to say at this point". Supp RR @ 16.
Finally, Bohannan also notified the prosecuting attorney,
the district court clerk, and the court's coordinator that he was
exercising his right to self-representation in the cause. As
servants of the-olaw, representatives of the State, and officers
of the court, those individuals had a duty to inform the court of
Bohannan's assertion.
Implicit in the Sixth Amendment right to counsel is the right
not to be represented by counsel and to proceed pro se. Faretta v.
California, 422 U.S. 806,.819-24 (1975). A defendant who chooses
to represent himself and waive this right to counsel may do so.
Id. In Texas, this right is also protected by.the Texas Constitution
Art. I §10, and Tex. Code Crim. Proc. art. 1.051(f). When a
defendant clearly and unequivocally asserts the right of self-
representation, the trial court MUST admonish the defendant of the
dangers and disadvantages of self-representation. Ex parte Winton,
837 S.W.2d 134, 135 (Tex.Crim.App. 1992). Here, upon consideration
of Bohannan's pro se motions, Judge Seiler, Judge Underwood, and
Judge Michalk were each required to bring Bohannan before them and
make Bohannan aware of the dangers and disadvantages,of self-
representation to determine if his waiver of representation was
"knowingly and intelligently" asserted. Faretta, 422 U.S. at 835.
See also Blankenship v. State,. 673 S.W.2d 578 (Te.x .Crim.App.
19 84). They did: not./ denying Bohannan his asserted constitutional
right; That is a fundamental error requiring reversal.
The appellate court's holding means an.imprisoned/jailed
defendat/appellant is prevented in Texas from asserting his
constitutional right to self-representation, when he desires to
do so, because the court is not going to even look at anything
he tries to send the court asserting that right, because he is
represented by imposed.counsel. If that is in fact, the current
state of Texas jurisprudence, then that impermissibly serves to
limit the exercise of that right in Texas. This Court's
discretionary review is warranted and necessary to correct that.
- 9 -
III. APPELLANT WAS IMPERMISSIBLY DENIED HIS RIGHT TO PROCEED
PRO SE, IN HIS APPEAL.
Both the Waco and El Paso Courts of Appeals have found a
right to self-representation on appeal arising from Vernon's Ann.
Texas C.C.P. art. 1.051 (f,g). Sickels v. State, 170 S.W.3d 298,
299 (Tex.App. - Waco 2005, pet. ref'd); Marion v. State, 936
S.W.2d 5, 6 (Tex.App. - El Paso 1996, no pet). Bohannan also
believes a right to represent himself on appeal arises from Texas
Constitution Art. I §10. This Court has itself held that an
appellant has the right to represent himself on appeal..- Webb v.
State, 533 S.W.2d 780 (Tex.Crim.App. 1976); Ex parte Thomas, 906
S.W.2d 22 (Tex.Crim.App. 1995). However, since then, atleast two
appellate court have held differently finding that "there is no
right for an appellant in a criminal case to represent himself on
appeal? Crawford v. State,.136 S.W.3d 417, 418 (Tex.App. ^ Corpus
Christi 2004);: Cormier v. State, 85 S.W.3d 496, 498 (TexiApp. -
Houston [1st Dist] 2002). Because there is a conflict between
the various courts of appeals, and two have held differently than
this Court, discretionary review is needed to settle this
apparently unsettled issue.
On November 21, 2013, this Court's Clerk sent out a notice,
with regard to Bohannan's pro se brief,•that "[t]he Court will
not consider pro se submissions while a party is represented by
counsel." That, in and of itself,.indicates an appellant must be
able to be "not represented" by counsel on appeal. Here,
following the holdings of Sickels and Fewins v. State, 170 S.W.3d
293 (Tex.App. - Waco 2005), Bohannan's imposed appellate counsel
filed a motion to withdraw in the trial court to allow Bohannan
to proceed on appeal pro se. Supp. CR •. In that motion,
imposed counsel informed the court that Bohannan "has been very
zealous in his attempts at self-representation and his assertion
of such as a matter of right".and^that Bohannan "has expressed
the desire to represent himself in this appeal". Id. Nevertheless,
the trial court denied Bohannan his right of self-representation,
without hearing and without the required admonishments. Supp CR
- 10 -
Though Bohannan timely appealed that denial, Supp CR
-i. , it appears the trial clerk failed to notify the appellate
court of that timely appeal as is required. In re Smith, 270 S.W.3d
783 (Tex.App. - Waco 2008). Nevertheless, Bohannan, in an
abundance of caution, mailed the appellate court clerk a copy
of that notice of appeal. App. Ree.J __—___ . Bohannan also
submitted a supplemental briefing to the appellate court
addressing that appeal;. Id. @ — •. The appellate court's,
October 29, 2014 Opinion failed to address Bohannan's appeal of
the trial court's continued imposition of the counsel it imposed
upon him in the appellate process.
IV. THE APPELLATE COURT'S OPINION PERMITTING THE STATE TO
PREVENT THE DEFENDANT FROM ADMITTING THE BASIS FOR A
MISTAKE OF LAW DEFENSE THROUGH A MOTION IN LIMINE,
RENDERS THAT LEGISLATIVELY PROVIDED DEFENSE UNAVAILABLE
AND UNPRESENTABLE.
Bohannan was found to have violated a rule created by the
secure correctional facility he was being confined in. He was
found to have committed that violation after the 9th District
Court of Appeals, the Texas Board of.Pardons and Paroles, and.the
TDCJ attorney told him his civil commitment order had been
reversed and, therefore, he was no longer under that reversed
order. Bohannan relied upon the assertions of those state
officials and based his actions on. the belief that those '£.,..,.
assertions were not lies. But, when it came time to exercise
the defense the state legislature established for such
circumstances, the state, through a motion in limine, had. the
trial court prohibit Bohannan from informing the jury of the
official misrepresentations he had relied upon. The appellate
court approved the State's use of a motion in limine to eliminate
the mistake of law defense..
The appellate court found that because the trial court did
not exclude any testimony by Bohannan, Bohannan did not preserve
an issue on the exclusion of evidence. App. Op @ 11,. That simply
- 11 -
is not correct because the trial court did exclude testimony by
Bohannan. At the conclusion of the State's ease-in-chief, much
discussion took place as to whether or not Bohannan would be
permitted to provide testimony about the foundational element of
his Mistake of Law defense, which the State had obtained the
court's ban on in its motion in limine. RR Vol 4 pp. 180-81, 195,
196, and 198.
As a general rule, the granting of a motion in limine is a
preliminary ruling that preserves nothing for appellate review.
See Contreras v. State, 915 S.W.2d 510, 516 (Tex.Crim.App. 1995).
A defendant must thereafter make a proffer of the particular
evidence he desires to offer, and obtain a ruling on his request
to place that evidence before the jury. See Basham v. State, 608
S.W.2d 677, 679 (Tex.Crim.App. 1980). Bohannan, in order to
raise his mistake of law defense; was required to show that his
reliance upon the appellate court's reversal of' his civil
commitment, in believing he was no longer subject to the
stigmatizing and qualitatively different conditions imposed upon
those committed, was reasonable..Tex. Penal Code §8;03(b). The
trial court told Bohannan it was having a problem with the
"reasonable" part.RR Vol 4 p. 195 LL 1-17. But then, it told
Bohannan he could not provide testimony detailing the basis for
his reasonable belief because "it's going to open the door to
everything" and "this is going to turn into a free-for-all".
Id. p. 196 LL 11-20, So, because the trial court told Bohannan
that his testimony, as to the basis of his defense, would not be
allowed, Bohannan informed his imposed counsel that .he wanted to
atleast be able to make a proffer of that testimony for appellate
purposes. Id. p. 198 LL 12-22. When Bohannan began making that
proffer, the trial court cut him off stating:
"*So if you want to have your client testify to other things other than
what's in the motion in limine, you are more than welcome to."
Id. p. 203 LL 3-5. The court went on, telling Bohannan he could
not talk about:
(1) "a dismissal by the Tarrant County DA's Office";
- 12 -
(2) "any reference to the Board of Pardon's and Parole;'
(3) "any reference to the Ninth Court of Appeals"; and
(4) "the subsequent affirmance" by the Texas Supreme Court.
Id. LL 11-25. The trial court went on to state that Bohannan "is
allowed to testify" - "just under the parameters of the motion in
limine". Id. p. 205 idi. 4-8.
The appellate court told Bohannan it had reversed his
commitment. Numerous other state officials told him that was
true, that he was no longer subject to civil commitment. He
relied on the appellate court and those officials. The trial
court and State prevented and prohibited Bohannan from informing
the jury of that reliance because it would open the door and let
them hear everything. Doing so was, at best, an abuse of
discretion. It served to deprive Bohannan of his constitutional
rights to Due Process and Due Course of Law under the United
States and Texas Constitutions, preventing Bohannan from
presenting his statutorily-provided defense to the allegations
made against him.
V. THE APPELLATE COURT'S OPINION MISCONSTRUED TEXAS HEALTH
AND SAFETY CODE §841.081(a) AND MISAPPLIED IT TO
BOHANNAN"S CLAIMS.
Because the appellate court misconstrued §841.081(a), and
then applied that misconstruction to Bohannan's claims, the Court
of Criminal Appeals needs to clarify that statutory interpretation
and correctly apply it herein. App. Op. @7.
Bohannan timely filed his motion for rehearing with the
appellate court; his first opportunity to exercise his right to.
self-representation ;in that court (imposed counsel was no longer
imposed). See App. Rehearing Motion. In that rehearing motion,
Bohannan notified the appellate court of their statutory
misconstruction, and addressed the applicability of such to his
being confined and held in a secure correctionsl facility,'at the
time of each of the allegations raised against him. Id; @ 25-30.
Because Bohannan was confined and being held in a secure.
- 13 -
correctional facility, at the time of each of the alleged
violations, rand the State produced no evidence that he was not, he
can not be guilty of violating a civil commitment rule because
those rules had.not become effective and were suspended. See Tex.
H&S code §§ 841;081(a), 841.150(a). The appellate court erred in
its failure to properly apply §841.081 (.a) and §841.150(a) to
Bohannan's appeal.
VI. THE APPELLATE COURT SHOULD HAVE CONSIDERED THE PRO SE
CLAIMS RAISED BY BOHANNAN IN HIS PRO SE BRIEFING.WHERE
APPELLATE COUNSEL HAD BEEN IMPOSED UPON -HIM AGAINST HIS
WISHES.
Because Bohannan was:denied the opportunity to pursue his
appeal pro se,by the trial court's imposition of counsel upon
him, and the appellate court's refusal to consider his pro se
pleadings while Bohannan was represented by that imposed counsel,
the Court of Criminal Appeals should remand this appeal back to
the appellate court to address his pro se claims., Those claims ,
include Bohannan's claim that the imposition of attorney fees
upon him when he was found to be indigent was improper, App. Pro
Se Brief @ 30-31., that the trial court permitted the State to use
prior felony convictions to enhance Bohannan's punishment that the
jury was required to find in, its guilt determination and which
were required to subject Bohannan to the criminal punishment (i.e.
the commitment) - a double stacking/ id. @ 31-35, amongst others.
CONCLUSION
Bohannan prays this Court reverse the judgment of the 435th
District Court and enter a judgment of acquittal. Alternatively,
Bohannan respectfully requests that the Court reverse the judgment
of the 435th District Court and order a new trial* Alternatively,
Bohannan prays the Court remand the appeal back to the appellate
court for rehearing therein.
Respectfully submitted,
- 14 -
£x^
Michael W. Bohannan #1841746
9601 Spur 591
Amarillo, Texas 79107-9606
806-381-7080
CERTIFICATE. OF MAILING AND SERVICE
I, Michael Bohannan, being presently Imprisoned in Potter
County, Texas, and under penalty of perjury, do hereby affirm
that I have delivered a copy of this Petition For Discretionary
Review, with its appendix, first-class postage prepaid, to a
TDCJ official, for mailing to the following:
Clerk of the Court
Texas Court of Criminal Appeals
P.O. Box 12308, Capitol Station
Austin, Texas 78711-2308
William Delmore, Asst. Dist. Att'y
207 W. Phillips Street
Conroe, Texas 77301
on this the ^na day of A^e V 2015
¥-
Petitioner/Affiant
- 15 -
NO. PD-0347-15
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
MICHAEL WAYNE BOHANNAN
V.
THE STATE OF TEXAS
From Appeal No. 09-13-00090-CR
Trial Cause No. 12-10-10953-CR
Montgomery County
APPENDIX
APPENDIX INDEX Page
Ninth District Court of Appeals
October 29, 2014 Judgment and Memorandum Opinion - 1-17
Ninth District Court of Appeals
January 8_«. 2015 Order Overruling Rehearing -• 18
Ninth District Court of Appels
February 20, 2015 Order Overruling En Banc Rehearing t 19
NINTH DISTRICT COURT OF APPEALS
OCTOBER 29, 2014 JUDGMENT AND MEMORANDUM OPINION
IN THE NINTH COURT OF APPEALS
09-13-00090-CR
Michael Wayne Bohannan
v.
The State of Texas
On Appeal from the
435th District Court of Montgomery County, Texas
Trial Cause No. 12-10-10953 CR
JUDGMENT
THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. IT
IS THEREFORE ORDERED, in accordance with the Court's opinion, that
the judgment of the trial court is affirmed.
Opinion of the Court delivered by Justice Leanne Johnson
October 29, 2014
AFFIRMED
Copies of this judgment and the Court's opinion are certified for
observance.
Carol Anne Harley
Clerk of the Court
In The
Court ofAppeals
Ninth District of Texas at Beaumont
NO. 09-13-00090-CR
MICHAEL WAYNE BOHANNAN, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-10-10953 CR
MEMORANDUM OPINION
Michael Wayne Bohannan, appellant, was indicted for the offense of
violating the terms of his civil commitment as a sexually violent predator. See Tex.
Health & Safety Code Ann. § 841.085 (West 2010). For enhancement purposes,
the indictment included allegations of three prior felony convictions. See Tex.
Penal Code Ann. § 12.42(d) (West 2011). Bohannan entered a plea of not guilty.
The jury found him guilty as charged, found the enhancement paragraphs of the
indictment to be true, and assessed his punishment at imprisonment for life.
Bohannan filed a notice of appeal. All of Bohannan's points of error in his appeal
relate to the effect of the reversal of the judgment in the civil commitment case on
the prosecution of the criminal case.
Issues on Appeal
Bohannan raises six issues that he phrases as follows:
1. "The Trial Court erred in denying the Motion to Quash and proceeding to trial
when the underlying civil judgment had been reversed and remanded by the Court
of Appeals and that reversal had been upheld by the Supreme Court."
2. "The Trial Court erred as to the mistake of law defense by denying the Motion
to Quash and by granting the State's Motion in Limine."
3. "The Trial Court erred in denying [Bohannan's] Motions for Continuance for the
purpose of obtaining business records from the electronic monitoring vendor."
4. "The Trial Court erred in denying [Bohannan's] requests for the appointment of
an Electronics Expert, Computer Expert, and Investigator and numerous other pro
se motions."
5. "The Trial Court erred in denying [Bohannan] his right to self-representation
and his motion regarding double jeopardy."
6. "The Trial Court erred in denying [Bohannan's] habeas request in proceeding to
trial after the underlying civil commitment had been overturned. The legality of
Appellant's continued incarceration should be reviewed by the Court of Criminal
Appeals as a collateral review."
Underlying Facts
On January 22, 2009, a jury found beyond a reasonable doubt that Bohannan
is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.062
(West 2010). Accordingly, the trial court signed a judgment of civil commitment
requiring Bohannan to be subject to outpatient treatment and supervision under the
provisions of Chapter 841 of the Health and Safety Code (SVP commitment). See
Tex. Health & Safety Code Ann. § 841.081 (West 2010). Bohannan was
transferred to the supervision of the Council on Sex Offender Treatment, now
known as the Office of Violent Sex Offender Management. See id.; see also Tex.
Health & Safety Code Ann. § 841.002(4) (West Supp. 2014). Under the terms of
the SVP commitment order, Bohannon was required to reside in a residential
facility, comply with the terms the Council (now OVSOM) and case manager
provided to him, and wear a GPS monitor and be subject to monitoring 24 hours a
day. Bohannan filed a notice of appeal to this Court, challenging his SVP
commitment, arguing among other points that the trial court erred in excluding
Bohannan's expert from testifying at the trial.
On July 22, 2010, this Court concluded that the trial court erred in excluding
a defense witness and reversed and remanded the SVP case for a new trial. See In
re Commitment ofBohannan, 379 S.W.3d 293, 300 (Tex. App.—Beaumont 2010),
aff'd, 388 S.W.3d 296 (Tex. 2012), cert, denied, 133 S. Ct. 2746 (2013). The State
sought review of this Court's reversal from the Texas Supreme Court. On August
31, 2012, the Texas Supreme Court affirmed on different grounds than in our
Opinion and the SVP case was reversed and remanded to the trial court for a new
trial. Bohannan, 388 S.W.3d at 298, 307. In October of 2012, Bohannan was
indicted in Montgomery County, Texas, for the offense of violating the terms of
his civil commitment as a sexually violent predator. See Tex. Health & Safety
Code Ann. § 841.085. The indictment alleged that from February 14, 2009 to April
24, 2011, Bohannan committed eight separate acts that violated the terms of his
civil commitment. A jury found him guilty as charged in the indictment.
One of the requirements of Bohannan's civil commitment was that he
"comply with all written requirements of the Council and case manager[.]" The
written supervision requirements instructed Bohannan to further comply with the
rules, regulations and policies of the community residential facility where he was
allowed to reside. The commitment order required that Bohannan "submit to
tracking under a global positioning satellite (GPS) monitor or other monitoring
system" and "comply with all written monitor system requirements." The written
instructions regarding the GPS tracking service required Bohannan to submit to
GPS tracking "twenty-four (24) hours per day, seven (7) days per week." And,
they specifically required Bohannan to place his miniature tracking device (MTD)
in the base unit installed in his residence, upon his arrival at that residence, and to
make no attempt to "prevent the radio frequency electronic monitor, Global
Positioning equipment, or any other monitoring system from reporting [his] status
to the monitoring computer." When the MTD was charging in the base unit in
Bohannan's residence, he was required to stay in close proximity to the MTD, so
that his ankle bracelet would remain in electronic contact with the MTD. If
Bohannan strayed too far from the MTD, he would cause a "bracelet gone" alert
resulting in immediate notification to Bohannan's case manager by the monitoring
service. A "bracelet gone" alert was regarded as a violation of the written GPS
monitoring requirements. Bohannan was the subject of five "bracelet gone" alerts
between February 14, 2009, and March 27, 2009. Most of the alerts were of
relatively short duration (one to five minutes), but on March 18, 2009, Bohannan's
ankle bracelet was out of range of his MTD for a period of seventeen minutes. At
the time, Bohannan admitted that he left the MTD in his room on that date and
went to another part of the facility. The indictment for violating the civil
commitment order alleged all five "bracelet gone" episodes as violations of the
civil commitment order.l
On July 22, 2010, this Court issued an opinion reversing .the judgment of
civil commitment in Bohannan's case. See Bohannan, 379 S.W.3d at 293. The
State of Texas sought review of the Court's decision by the Supreme Court of
'All of the "bracelet gone" alerts involved incidents that occurred prior to
this Court's July 22, 2010 opinion.
Texas. On March 15, 2011, and March 17, 2011, Bohannan refused to sign and
acknowledge written commitment requirements. Bohannan's refusals to accept and
sign the written conditions of his commitment were also alleged as violations of
the commitment order in the indictment. On April 24, 2011, a halfway-house
dispute about access to Bohannan's prescription medication escalated into a
disturbance in which Bohannan pounded on a counter, cursed at halfway-house
personnel, and refused to return to his room. Police officers initially responded to
Bohannan's disturbance and later returned to execute a parole revocation warrant
and take Bohannan to jail. The incident of April 24, 2011, was listed in the
indictment as the final alleged violation of the commitment order.
The Supreme Court of Texas affirmed the reversal of Bohannan's civil
commitment judgment in an opinion issued on August 31, 2012. See Bohannan,
388 S.W.3d at 298, 307. No mandate of reversal was issued until January 18, 2013,
shortly before the Supreme Court of the United States denied Bohannan's petition
for writ of certiorari. See Bohannan, 133 S. Ct. at 2746. In a pre-trial hearing
conducted shortly before beginning jury selection, the trial court denied
Bohannan's motion to quash the indictment and granted the State's request for a
motion in limine in the guilt-innocence phase of the trial regarding any reference to
the reversal of the SVP commitment order.
Discussion
In issue one, Bohannan contends the trial court erred in failing to grant
Bohannan's pre-trial motion to quash the indictment. The sufficiency of an
indictment is a question of law that we review de novo. State v. Moff, 154 S.W.3d
599, 601 (Tex. Crim. App. 2004). However, a motion to quash the indictment must
be filed before the date on which the trial on the merits commences, or the
defendant waives and forfeits the right to object to the defect and he may not raise
the issue on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005). Because
Bohannan filed his motion on the first day of trial, he did not preserve error on his
complaint that the trial court failed to quash the indictment. See id. We overrule
issue one.
Although Bohannan does not present his issue as a challenge to the
sufficiency of the evidence, we note that unless the person affected by the order of
civil commitment is confined by the Texas Department of Criminal Justice or is
receiving inpatient care at a state hospital, an order of civil commitment is
effective immediately on entry of the order. See Tex. Health & Safety Code Ann. §
841.081(a). The civil commitment order was in effect during Bohannan's appeal
and the reversal of the civil commitment judgment was not enforceable until the
Supreme Court's mandate issued. See Tex. R. App. P. 65.2.
The State must prove the elements of an offense as they existed on the date
the charged offense was committed. See Ex parte Jimenez, 361 S.W.3d 679, 683
(Tex. Crim. App. 2012). The indictment alleged that Bohannan violated the civil
commitment order on dates when the order was still in effect, and at a time when
Bohannan had the status of a sexually violent predator. Bohannan argues Jimenez
is inapplicable because it concerned the violation of a penal statute. We disagree
because, while it was in effect, the judgment in the civil commitment case was not
less enforceable because it was a judgment in a civil case. It is well established that
a violation of a civil judgment may be punished as criminal contempt even though
the order is set aside on appeal. In re Sheshtawy, 154 S.W.3d 114, 125 (Tex. 2004)
(citing United States v. United Mine Workers ofAm., 330 U.S. 258, 294, (1947)).
We overrule issue one.
In issue two, Bohannan argues that, by not granting his motion to quash and
by granting the State's motion in limine, the trial court disallowed during the guilt
phase certain evidence concerning the reversal of the judgment of civil
commitment and therefore deprived Bohannan of his mistake-of-law defense on
the violations of the SVP order for those violations that occurred on or about
March 15, 2011, March 17, 2011, and April 24, 2011. See Tex. Penal Code Ann. §
8.03 (West 2011). These three violations occurred after we issued our opinion
reversing the SVP order but before the Supreme Court's mandate issued. See Tex.
R.App. P. 18.1,65.2.
The issue of an affirmative defense is not submitted to the jury unless
evidence is admitted supporting the defense. See Tex. Penal Code Ann. § 2.04(c)
(West 2011). Bohannan concedes no evidence was admitted to support his
affirmative defense, but he argues the trial court erroneously excluded his
testimony about his reliance on our opinion reversing the SVP order.
During the pre-trial hearing, the trial court granted the State's motion in
limine, which prohibited mentioning the reversal of the SVP judgment without first
taking up the admissibility of the matter with the trial court outside the presence of
the jury. Before jury selection began, defense counsel informed the trial court that
he intended to discuss the reversal of the SVP judgment in order to raise a mistake-
of-law defense. The trial court instructed defense counsel to approach the bench
before mentioning the reversal.
After the State rested, the defense asked the trial court to grant a motion in
limine prohibiting the State from cross-examining Bohannan about his prior
offenses. The trial court informed the State that it would be allowed to mention the
fact that Bohannan had two prior convictions that caused him to be civilly
committed but would not be allowed to go into the facts. The trial court stated that
the State would be allowed to impeach Bohannan regarding convictions that
occurred within ten years of the date of the offense for which he was on trial, but
the State could not go into the underlying facts unless the door was opened. The
trial court stated that it had not decided whether the State could impeach Bohannan
with a 1979 perjury conviction.
Outside the jury's presence, Bohannan took the stand to make an offer of
proof. Defense counsel asked Bohannan, "So if allowed to testify on the stand,
what would you testify to?" Bohannan stated, "Well, my initial testimony would be
to the situation with the bracelet gone alarms." Bohannan described some
documents he received and a parole hearing that was conducted after the reversal
of the civil commitment judgment. The trial court reminded counsel that Bohannan
was free to testify but the court was not going to allow Bohannan to engage in a
narrative if he had chosen not to testify. Bohannan stated that he chose not to
testify because the order prevented him from going into the subjects covered by the
State's motion in limine. The trial court stated, "I'm not going to make pre-rulings
here and we're talking outside [the] presence of the jury," repeated that Bohannan
could testify "under the parameters of this motion in limine[,]" but that if
Bohannan "wants to put this in evidence, he's got to take the witness stand." The
defense rested without calling Bohannan as a witness. The State never objected to
10
any of Bohannan's testimony; consequently, the trial court neither sustained nor
overruled an objection to proffered evidence.
The trial court did not exclude any testimony by Bohannan. In the absence
of a tender and exclusion of evidence, Bohannan has not preserved an issue on the
exclusion of evidence. See Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim.
App. 1975); see also Yanez v. State, 199 S.W.3d 293, 301-03 (Tex. App.—Corpus
Christi 2006, pet. ref d) (the trial court may defer ruling on a pre-trial motion on
admissibility of testimony until the witness testifies). Preservation of error requires
an offer by the defendant, an objection by the State, and a ruling from the trial
court. See Fuller v. State, 827 S.W.2d 919, 929 (Tex. Crim. App. 1992) ("Though
admittedly he may have been in something of a quandary, with the trial court
announcing that it had seemingly decided that certain evidence was not going to be
admissible prior to it even being offered, such did not absolve appellant of the
responsibility to at least offer the evidence at some point during the trial on the
merits if he wanted it presented before the jury. Because appellant never sought to
introduce the evidence at trial, the trial court did not ever exclude it therefrom.");
Ites v. State, 923 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist] 1996, pet.
ref d) (holding no error preserved, notwithstanding bill of exceptions, where the
proponent did not proffer the evidence, the opponent did not object to the evidence,
11
and the trial court did not rule that it would be excluded); Giesberg v. State, 945
S.W.2d 120, 128 (Tex. App.—Houston [1st Dist.] 1996), aff'd, 984 S.W.2d 245
(Tex. Crim. App. 1998) (holding that, although he made a bill of exceptions, the
defendant failed to preserve error because the record did not show the nature of the
State's objection to the evidence included in the bill). We overrule issue two.
In issue three, Bohannan complains of the denial of the motion for
continuance that he filed on the day of trial. The denial of a motion for continuance
is within the discretion of the trial court. Renteria v. State, 206 S.W.3d 689, 699
(Tex. Crim. App. 2006). To establish an abuse of discretion, the defendant must
demonstrate specific prejudice arising from counsel's inadequate preparation time.
Heiselbetz v. State, 906 S.W.2d 500, 511-12 (Tex. Crim. App. 1995).
Bohannan argues that a continuance was necessary to obtain a complete
copy of the GPS records, in addition to previously-produced records that showed
only the "bracelet gone" alerts. During the hearing on the motion for continuance,
however, defense counsel stated that he received the records that he needed the
Friday before the trial. In his brief, Bohannan argues the trial court abused its
discretion because defense counsel required additional time to examine and test the
equipment used to monitor Bohannan's whereabouts. Four days before the trial
started, Bohannan filed a motion for production for expert evaluation of all alarms
12
generated by the GPS equipment and a chronological plotting of the tracking
points generated by the electronic monitoring equipment on eleven specific dates.
However, defense counsel never suggested that he required additional time to
examine and test the GPS monitor in either the written motion for continuance or
during his presentation of that motion to the trial court. Additionally, the record
fails to demonstrate specific prejudice to counsel's ability to prepare for trial
resulting from trying the case the week after counsel received additional records
concerning the GPS monitor. Heiselbetz, 906 S.W.2d at 511-12. Therefore, we
overrule issue three.
In issue four, Bohannan contends the trial court erred in denying numerous
motions that Bohannan filed pro se while he was being represented by counsel. A
defendant has no right to hybrid representation; consequently, the trial court is free
to disregard any pro se motions presented by a defendant who is represented by
counsel. Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); see also
Ex parte Bohannan, 350 S.W.3d 116, 117 n.l (Tex. Crim. App. 2011)
(disregarding pro se motions filed by Bohannan while he was being represented by
counsel in a post-conviction habeas proceeding); In re Bohannan, No. 09-12-
00473-CR, 2012 WL 5519206, at *1 (Tex. App.-Beaumont Nov. 14, 2012, orig.
proceeding) (mem. op., not designated for publication) (denying mandamus
13
petition seeking to compel the trial court to rule on a pro se motion presented in a
pre-trial habeas proceeding in which the trial court appointed counsel); In re
Bohannan, No. 09-11-00684-CR, 2011 WL 6747468 (Tex. App.-Beaumont Dec.
21, 2011, orig. proceeding) (mem. op., not designated for publication) (denying
mandamus petition seeking to compel trial court to rule on pro se motions filed in
the criminal case while Bohannan was represented by appointed counsel). We
overrule issue four.
In issue five, Bohannan claims a violation of his right of self-representation.
See Faretta v. California, 422 U.S. 806, 834 (1975). The right of self-
representation does not attach until it has been clearly and unequivocally asserted.
Funderburg v. State, 111 S.W.2d 637, 642 (Tex. Crim. App. 1986). A request for,
or assertion of, hybrid representation is not an unequivocal request for self-
representation. Saldana v. State, 287 S.W.3d 43, 54 (Tex. App.—Corpus Christi
2008, pet. ref d).
Bohannan argues that the absence of an application for appointed counsel in
the clerk's record and the numerous pro se motions establish that he invoked his
right to represent himself. The record includes a letter, dated October 1, 2012, from
Bohannan to the trial court. In the letter, Bohannan refers to trial counsel as "my
currently appointed counsel" and mentions that at that time counsel "had been
14
appointed for over nine weeks" and stated that Bohannan had been informed of the
appointment on July 24, 2012. An attorney request form dated April 27, 2011, and
an order appointing counsel are attached as exhibits to a pro se motion for new
trial. These documents indicate that Bohannan requested or accepted the
appointment of counsel and that he relied upon counsel for his defense to the
criminal prosecution of the alleged violation of the civil commitment order.
Bohannan accepted representation by counsel, then filed pro se motions
which he argues invoked his right to represent himself. However, the trial court
was not obliged to read Bohannan's pro se motions. See Robinson, 240 S.W.3d at
922. Additionally, Bohannan did not ask to proceed pro se at any time during the
pretrial hearing and arraignment. See Blankenship v. State, 673 S.W.2d 578, 585
(Tex. Crim. App. 1984) (the right of self-representation must be asserted before the
jury is impanelled). Under these circumstances, we conclude the failure to allow
Bohannan to proceed pro se was not an abuse of the trial court's discretion. We
overrule issue five.
In issue six, Bohannan argues that he has been prosecuted illegally for
violating a void judgment. He cites no authority in support of his argument. An
order of civil commitment is effective immediately on entry of the order. See Tex.
Health & Safety Code Ann. § 841.081(a). Our reversal of that order was not
15
effective until January 18, 2013, which is after the dates on which Bohannan
violated the civil commitment order. See Tex. R. App. P. 65.2. Bohannan had the
status of a sexually violent predator when he violated the civil commitment order
and the subsequent reversal of the judgment did not preclude prosecution for a
violation of the order that occurred before the reversal of the trial court's judgment
became final and the mandate of reversal issued. See Jimenez, 361 S.W.3d at 683;
Sheshtawy, 154 S.W.3d at 125. Accordingly, we overrule issue six. Having
overruled all of Bohannan's issues, we affirm the trial court's judgment.
AFFIRMED.
LEANNE JOHNSON
Justice
Submitted on May 1, 2014
Opinion Delivered October 29, 2014
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
16
NINTH DISTRICT COURT OF APPEALS
JANUARY 08, 2015 ORDER OVERRULING REHEARING
FILE COPY
CHIEF JUSTICE
STEVE MCKEITHEN Court of Appeals CLERK
CAROL ANNE HARLEY
JUSTICES State of Texas OFFICE
SUITE 330
CHARLES KREGER
1001 PEARL ST.
HOLLIS HORTON Ninth District BEAUMONT, TEXAS 77701
LEANNE JOHNSON 409/835-8402 FAX 409/835-8497
WWW.TXCOURTS.GOV/9THCOA.ASPX
January 08, 2015
Oscar L. Sommers III William J. Delmore III
414 W.Phillips St., Suite 101 Asst. District Attorney
Conroe, TX 77301 207 W. Phillips, 2nd Floor
* DELIVERED VIA E-MAIL * Conroe, TX 77301
* DELIVERED VIA E-MAIL *
Michael Wayne Bohannan
#1841746
Clements Unit
9601 Spur 591
Amarillo, TX 79107
jRE: Case Number: 09-13-00090-CR
Trial Court Case 12-10-10953 CR
Number:
Style: Michael Wayne Bohannan
v.
The State of Texas
The Appellant's Pro Se motion for rehearing in the above styled and
numbered cause was overruled this date.
Sincerely,
CAROL ANNE HARLEY
CLERK OF THE COURT
NINTH DISTRICT COURT OF APPEALS
FEBRUARY 20, 2015 ORDER OVERRULING REHEARING EN BANC
FILE COPY
CHIEF JUSTICE
STEVE MCKEITHEN Court of Appeals CAROL ANNE HARLEY
JUSTICES State of Texas OFFICE
SUITE 330
CHARLES KREGER
1001 PEARL ST.
HOLLIS HORTON Ninth District BEAUMONT, TEXAS 77701
LEANNE JOHNSON 409/835-8402 FAX 409/835-8497
WWW.TXCOURTS.GOV/9THCOA.ASPX
February 20, 2015
Oscar L. Sommers III William J. Delmore III
414 W. Phillips St., Suite 101 Asst. District Attorney
Conroe, TX 77301 207 W. Phillips, 2nd Floor
* DELIVERED VIA E-MAIL * Conroe, TX 77301
* DELIVERED VIA E-MAIL *
Michael Wayne Bohannan
#1841746
Clements Unit
9601 Spur 591
Amarillo, TX 79107
RE: Case Number: 09-13-00090-CR
Trial Court Case 12-10-10953 CR
Number:
Style: Michael Wayne Bohannan
v.
The State of Texas
The Appellant's pro se motion for rehearing en banc in the above styled and
numbered cause was overruled this date.
Sincerely,
CAROL ANNE HARLEY
CLERK OF THE COURT
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