Adrian Calderon v. State

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.
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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
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