Martinez, Jorge Alberto v. State ( 2001 )

NUMBER 13-99-046-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JORGE ALBERTO MARTINEZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 206th District Court of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Dorsey, Yañez, and Kennedy⁽¹⁾ Opinion by Justice Kennedy

Appellant was charged with aggravated assault on a public servant. A jury found appellant guilty and assessed his punishment at confinement for two and one-half years.

On the occasion of the commission of the offense involved here, appellant had gone to a residence where his presence was not welcomed. He was asked to leave, which he did, however, he returned and stayed until a law officer arrived in reply to a call from the owner of the house. An altercation took place in which appellant resisted arrest and assaulted the officer.

At trial, appellant appeared with an attorney. Shortly after the trial began, he stated that he wanted to represent himself. It is obvious from the record that appellant tried to turn the proceedings into a circus from the onset.⁽²⁾

The very patient judge admonished appellant of his rights and of the danger of pro se representation. He also warned appellant that he would remove him from the courtroom or bind and gag him if he persisted in his disruptive tactics. The judge then permitted appellant to proceed pro se. Appellant's attorney attempted to withdraw, but the judge refused her request and ordered her to remain in the courtroom to be available in the event appellant wanted to consult her.

Appellant's first two points of error are related. They are:

Point of Error No. 1 ­ The trial court erred in allowing defendant to proceed pro se, when the court created the situation.

Point of Error No. 2 ­ The trial court erred in allowing defendant to proceed pro se, when the court failed to give him adequate warnings on the danger of self-representation.

In support of these points, appellant argues:

The court considered preceding [sic] with the defendant bound or gagged, or have him absent from the proceedings. Repeatedly, the defense counsel assigned to the defendant tried to withdraw from representing him. In this coercive environment, defendant requested that he be allowed to defend himself.

A defendant has a constitutional right to represent himself. Faretta v. California, 95 S. Ct. 2525, 2533 (1975). He must make this decision knowingly and intelligently after the court has made him aware of the dangers and disadvantages of self-representation. Id. at 2541. However, Faretta does not require specific questions to be asked, the only requirement being that the admonishments be adequate to satisfy the court that the defendant is knowingly exercising his right to defend himself. Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992).

The record in this case clearly shows that the trial judge fully admonished appellant of what he was charged with and the range of punishment therefor. He was advised that he was entitled to a lawyer at no cost to him, and he acknowledged that he knew this. The court further inquired of appellant's educational background and was told by appellant that he had finished high school and had one year of college. The court warned appellant that he would make no special accommodation to him and would expect him to follow the same rules as an attorney. The court stated: "Self-representation is ill-advised and may very well be a serious mistake on your part." At one point, appellant acknowledged that the trial judge had warned him about the dangers involved in representing himself.

The record reflects that any mention by the court of restraining appellant came in response to misconduct on appellant's part. Appellant's complaint that he was coerced into representing himself after the court refused him different counsel is his own conclusion and is not borne out by the record. It has been held that where an "eleventh hour" request for new counsel has been requested, the court may deny the request, in which case it must allow a defendant to represent himself. Burgess v. State, 816 S.W.2d 424, 428-29 (Tex. Crim. App. 1991).

Appellant's first and second points of error have no merit and we overrule them.

Point of error number three is:

The trial court denied the defendant his right to a fair trial and due process under the federal Constitution by:

(1) allowing the admission of numerous extraneous offenses

(2) failing to allow the defense to introduce evidence

(3) signing a hostile stand by counsel

(4) not submitting probation consideration to jury

(5) not submitting defensive issues of self-defense and necessity.

Point of error four alleges that the same five actions of the court denied appellant his right to a fair trial and due course of law under the Texas Constitution.

First, appellant does not claim, and the record does not support, that appellant objected to any of the evidence that he now finds objectionable, nor does it reflect that he requested probation or instructions on self-defense or necessity to the jury. If appellant did not receive what he perceives as a fair trial, it is because of his own deficient performance, which is the subject of what the court warned him about initially.

The "key piece of evidence" is referred to in the argument in his brief as "impeachment evidence." In both cases he refers to the indictment, which he claims showed "Belinda Padilla was the owner of the property not her brother Adrian." He would have used this to show that Adrian did not own the property as he claimed.⁽³⁾ Aside from the fact that the indictment was already before the jury, we note that the law defines an owner as a person who has title, possession of the property, or a greater right to possession of the property than the actor. Tex. Penal Code Ann. sec. 1007 (34)(A) (Vernon 1994).

Appellant characterizes his "standby counsel" as hostile. An overview of the record indicates that counsel was not hostile to appellant. It also suggests that any friction between her and appellant was generated by appellant. A court has the authority to appoint standby counsel even over the objection of an unwilling defendant. Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988).⁽⁴⁾

Appellant cites no authority to support either of these points other than global authority that he is entitled to a fair trial. We overrule his final two points and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish.

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 8th day of February, 2001.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. For example, while the judge and the attorneys were out of the courtroom, appellant addressed the jury panel to say that he wanted twelve good volunteers from the panel.

3. Belinda and Adrian both lived at the residence involved. Appellant had been dating Belinda and Adrian objected to this.

4. Culverhouse was a case where the defendant had physically assaulted his standby counsel during an earlier hearing.