Lars Axel Theorine v. the State of Texas ( 2023 )

NO. 12-22-00058-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LARS AXEL THEORINE, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Appellant, Lars Axel Theorine, appeals his conviction for murder. In one issue, he
challenges the trial court’s denial of his motion to represent himself at trial. We affirm.
BACKGROUND
On March 17, 2020, Appellant was indicted for the offense of murder. 1 The indictment
alleged that on January 2, 2020, Appellant intentionally and knowingly caused the death of
Michael Reed by stabbing and cutting him with a sharp object and striking him in the head with a
blunt object, and used or exhibited a deadly weapon in committing the offense. Appellant
pleaded “not guilty,” and this matter proceeded to a jury trial.
Appellant was represented by appointed counsel during jury selection on March 21, 2022
(as he had been during the approximately two years following his indictment for murder), and a
jury was selected and sworn. On the following day, before the jury was brought into the
courtroom to begin hearing evidence, Appellant informed his attorney that he wished to proceed
pro se. Consequently, Appellant’s appointed counsel made an oral motion to the trial court that
Appellant be allowed to represent himself. The trial court took judicial notice of prior
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TEX. PENAL CODE ANN. § 19.02 (West 2023).
proceedings in the case at which Appellant was represented by appointed counsel, stated that
Appellant’s invocation of his right to self-representation was untimely, and denied the motion.
Trial proceeded as scheduled, with appointed counsel representing Appellant. The jury
found Appellant “guilty,” and imposed a sentence of life imprisonment. This appeal followed.
SELF-REPRESENTATION
In his sole issue, Appellant contends that the trial court abused its discretion in refusing to
allow him to represent himself at trial.
In all criminal prosecutions, the accused has the right to have the assistance of counsel for
his defense. U.S. CONST. amend VI. If a criminal defendant elects to proceed without counsel, he
has a constitutional right to do so. See Indiana v. Edwards, 554 U.S. 164, 170, 128 S. Ct. 2379,
2383, 171 L. Ed. 2d 345 (2008); Faretta v. California, 422 U.S. 806, 819-20, 95 S. Ct. 2525,
2533, 45 L. Ed. 2d 562 (1975). While a criminal defendant’s right to counsel remains in effect
until the defendant waives it, the defendant’s right to self-representation is not triggered until it is
asserted. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; see also Lathem v. State, 514 S.W.3d 796,
802 (Tex. App.—Fort Worth 2017, pet. ref’d). An accused must assert his right to self-
representation in a timely manner, namely, before a jury is impaneled. McDuff v. State, 939
S.W.2d 607, 619 (Tex. Crim. App. 1997); Blankenship v. State, 673 S.W.2d 578, 585 (Tex.
Crim. App. 1984); Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] 1999,
pet. ref’d)). A jury has been impaneled when those who have been chosen to serve have been
selected and sworn. Lathem, 514 S.W.3d at 810. We review the denial of a defendant’s request
to represent himself for abuse of discretion, viewing the evidence in the light most favorable to
the trial court’s ruling. Id. at 802.
In this case, after voir dire on March 21, 2022, the trial judge brought the twelve chosen
jurors into the courtroom and instructed them to stand and raise their right hands. The trial judge
administered the oath to the twelve jurors, and thereafter stated, “The record will reflect all 12
jurors have just stood, raised their right hand, [and] taken the oath as a juror.” Finally, the judge
gave the jury further instructions, gave the jurors an opportunity to ask questions, and released
them for the day. Appellant’s request for self-representation did not occur until the next
morning, just before the jury was brought into the courtroom. He acknowledges in his brief that
his request was made after the jury was selected and sworn. Therefore, Appellant’s assertion of
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his right to self-representation was untimely. See McDuff, 939 S.W.2d at 619; Blankenship,
573 S.W.2d at 585; Birdwell, 10 S.W.3d at 77; see also Rodriguez v. State, No. 2-07-332-CR,
2008 WL 5057028, at *1 (Tex. App.—Fort Worth Nov. 26, 2008, pet. ref’d) (mem. op., not
designated for publication) (no abuse of discretion when appellant requested self-representation
the morning after jury was impaneled, just before beginning of trial). Because Appellant did not
timely assert his right to represent himself, the trial court did not abuse its discretion by denying
his motion. See McDuff, 939 S.W.2d at 619; Blankenship, 673 S.W.2d at 585; Lathem, 514
S.W.3d at 802-03; Birdwell, 10 S.W.3d at 77. Accordingly, we overrule Appellant’s sole issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
GREG NEELEY
Justice
Opinion delivered September 6, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 6, 2023
NO. 12-22-00058-CR
LARS AXEL THEORINE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-0470-20)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, for which execution may issue, and that this
decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.