Carlos G. Lopez v. State

Affirmed and Memorandum Opinion filed March 31, 2009

Affirmed and Memorandum Opinion filed March 31, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-01019-CR

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CARLOS G. LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1076912

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Carlos G. Lopez of possession with intent to deliver at least 400 grams of methamphetamine and sentenced him to thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In a single issue, appellant asserts that the trial court erred by not adequately admonishing him concerning his right to a court-appointed attorney.  We affirm.

I.  Factual And Procedural Background

On July 17, 2006, Houston County deputy Isbel Diaz, Jr. arrested appellant for driving a stolen vehicle. Diaz searched the vehicle incident to appellant=s arrest and discovered over 750 grams of cocaine and a loaded firearm in the back seat area of the car.  Diaz also found several baggies of methamphetamine, which weighed more than 100 grams.  After appellant was arrested and transported to jail, he was more completely searched.  Officers discovered over 390 grams of methamphetamine hidden inside appellant=s clothing in his groin area.  They also found fake identification and over $1,200 in cash in appellant=s wallet.  The total weight of the methamphetamine, including adulterants and dilutants, found in the stolen vehicle and on appellant=s person was over 500 grams. 

In August, 2006, the trial court appointed an attorney for appellant.  Appellant was indicted in October 2006 for possession with intent to deliver over 400 grams of methamphetamine.  The indictment included an enhancement paragraph alleging appellant used a deadly weapon in the course of committing this offense.  Appellant moved to substitute retained counsel in January 2007, and the trial court granted the motion.  In February 2007, however, his retained counsel filed a motion to withdraw because appellant

repeatedly failed to discuss the facts of his case, has not been totally honest with his attorney, persisted on disregarding his attorney=s legal advice, and has informed []his attorney that he does not have sufficient funds to pay his legal fees, investigation fees, and so forth.

The trial court granted his retained counsel=s motion to withdraw and subsequently reset appellant=s case twice to permit him to retain new counsel.  On March 3, 2007, appellant requested and was granted a new court-appointed attorney.^[1] 

Appellant=s appointed counsel, Patricia Segura, filed numerous motions on his behalf.  Before his trial in November 2007, appellant notified the trial court that he wanted to represent himself.  The trial court conducted an admonishment hearing on November 7, 2007, at which appellant=s appointed counsel, Ms. Segura, was present.  During the hearing, the trial court admonished appellant that he would be held to the same standards as a trained legal professional and would be expected to know the Texas Rules of Evidence; the trial court also strongly advised appellant not to represent himself.  The trial court also questioned appellant about his educational background.^[2]  The trial judge informed appellant that the minimum punishment for the offense with which he had been charged was fifteen years= incarceration, and that the range of punishment extended to life in prison.

At the close of the admonishment hearing, the trial court stated, AMs. Segura, I=m going to have you stand by at counsel table to assist him, but he=s representing himself.  I think he clearly understands what he=s doing; I think it=s the wrong thing to do.  But that=s not my call, that=s [appellant=s] call.  You have a right to waive a lawyer.@ (emphasis added).  Appellant represented himself at all stages of his trial; the reporter=s record reflects that Ms. Segura also was present for his entire trial.

The jury found appellant guilty as charged in the indictment, but did not find beyond a reasonable doubt that appellant used or exhibited a firearm during the commission of the offense.  After a punishment hearing, the jury sentenced appellant to thirty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $50,000.  The trial court rendered judgment on the jury=s verdict, and this appeal timely ensued.

II.  Issue Presented

In a single issue, appellant asserts that the trial court erred in failing to adequately admonish him regarding his right to a free court-appointed attorney.

III.  Analysis

A.        Sixth Amendment Right to Counsel

The Sixth Amendment guarantees that, in all criminal cases, Athe accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.@  U.S. Const. Amend. VI; see also Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App. 2008).  Because the right to counsel is a fundamental right, an indigent defendant is entitled to appointed counsel unless he Acompetently, intelligently, and voluntarily waives the right to counsel.@  Williams, 252 S.W.3d at 356.  Of course, a defendant also is entitled to represent himself.  See id. (citing Faretta v. California, 422 U.S. 806, 818 (1975)); see also Robertson v. State, 934 S.W.2d 861, 863B64 (Tex. App.CHouston [14th Dist.] 1996, no pet.).  

Once a defendant asserts his right to self-representation, a trial court judge must ascertain that the defendant is choosing to waive the right to counsel knowingly and intelligently, and must warn the defendant about the dangers and disadvantages accompanying such a waiver.  See Faretta, 422 U.S. at 818; Williams, 252 S.W.3d at 356.  A trial judge must inform the defendant that there are technical rules of evidence and procedure, and that he will not be given any special consideration simply because he has asserted his right of self-representation.  Williams, 252 S.W.3d at 356.  The trial court, however, has no duty to question a defendant about his education, background, or mental history in every case in which a defendant states he wants to proceed pro se.  Id.  Further,  when a trial court appoints standby counsel, admonishments regarding waiver of Sixth Amendment rights are not required.  See Robertson, 934 S.W.2d at 865B66; see also Walker v. State, 962 S.W.2d 124, 126B27 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d).  But see Grant v. State, 255 S.W.3d 642, 647B48 (Tex. App.CBeaumont 2007, no pet.) (disagreeing with Robertson and Walker that appointment of standby counsel relieves the trial court of responsibility of admonishing defendant about dangers of self-representation, but determining nonetheless that defendant voluntarily and knowingly waived his right to counsel).

B.        Application

Appellant asserts that the Atrial court erred in not adequately admonishing appellant that he was entitled to a free court appointed attorney.@  In making this argument, appellant further contends that the trial court did not inform him of the Apitfalls inherent in self-representation.@  The trial court=s error in failing to admonish appellant was compounded, according to appellant, by the fact that appellant did not understand the nature of the charges against him because there were two indictments pending against him.  Finally, appellant argues that his confusion was exacerbated by a significant language barrier.  We conclude appellant=s issue is without merit for several reasons.

First, appellant=s reliance on Williams v. State is misplaced.  See Williams, 252 S.W.3d at 355.  In Williams, the appellant pleaded guilty and Awhen she appeared for trial, she did not have counsel.@  Id.  But here, as noted above, appellant was provided with a court-appointed attorney twice before his trial.^[3] Appellant=s second appointed counsel, Ms. Segura, was present during the hearing at which the trial court admonished appellant and was ordered by the trial court to remain as appellant=s standby counsel during his trial.  Thus, Williams is readily distinguishable.

Second, the trial court repeatedly suggested to appellant that representing himself was not in his best interests.  The following colloquy between the trial judge and appellant is but one of numerous times that the trial court suggested appellant needed assistance in pursuing his case:

[Trial Court]:  If you ask inappropriate questions, the State will object; and if they=re inappropriate, I=ll grant their objection.  You have to know how to question witnesses, you have to know what the rules are.  You do not know those things.  I can=t - - I=m not allowed to make allowances for you because you don=t know.

[Appellant]:                I understand.  I understand everything.  I=m in the hands of God, that=s all.

[Trial Court]:  Everybody=s in the hands [of] God, sir; but in this courtroom you can use a little help.

Further, the trial court informed appellant that he would receive no Aspecial treatment@ because he was not a lawyer.  In response to appellant=s question regarding the stolen car, the trial judge reminded appellant that he was not charged with stealing the car, but with possession of drugs.  When appellant asserted that the plea bargain sentence proposed by the State was Atoo much for a stolen car,@ the trial judge informed appellant that

What you think and what the law says are not the same.  The law says it=s 15 to life.  What you think is not consistent with what the law is.  You may not agree with it, but that=s the law.  What you=re charged with is a 15-to-life case.  Period, that=s a fact.  You=re not charged with a stolen car.  You=re charged with drug possession. 

(emphasis added). Appellant repeatedly acknowledged that he understood the charge against him.

Third, the Alanguage barrier@ about which appellant complains was alleviated by the presence of a court interpreter during all stages of the proceedings, including the admonishment hearing.  Further, at the beginning of the admonishment proceedings, the trial judge informed appellant that he could speak in Spanish because there was an interpreter present.  Several times during the admonishment hearing, the trial court asked the translator to translate her questions and the statements made by appellant. 

In sum, the trial court admonished appellant about the nature of the offense with which he was charged and the possible punishment, informed him he would receive no Aspecial treatment@ and would be required to abide by the rules of evidence, and unequivocally advised him that he should not represent himself.  Thus, we cannot say that these admonishments were insufficient, or that appellant was not informed about the Adangers and disadvantages of self-representation.@  See, e.g., Williams, 252 S.W.3d at 356 (quoting Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) (en banc)).  Moreover, the trial court ordered his appointed counsel to standby at counsel table to assist him.  When the trial court appoints standby counsel, admonishments about the waiver of the right to counsel are not required.  See Robertson, 934 S.W.2d at 865B66.  Thus, even if the admonishments provided by the trial court in this case were in any way insufficient, they were not necessary because the trial court appointed standby counsel. 

For these reasons, we overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  On the preprinted order appointing counsel, appellant signed the following request:

[T]he DEFENDANT in the above styled and numbered cause respectfully petitions the Court to appoint counsel to represent him / her in this cause and would show the Court that he / she is financially unable to hire an attorney.

^[2]  For example, the trial court inquired whether appellant had any legal training; appellant stated he had attended both high school and some nursing school in Mexico, and had studied AAmerican law@ in the jail law library.  During the proceedings, appellant further affirmed that he had attended Asome college@ and indicated that he had studied AMexican law@ at the University of Tamaulipas in Mexico.

^[3]  In fact, as discussed supra, appellant substituted retained counsel in place of his first court-appointed attorney. After his retained counsel withdrew, the trial court appointed new counsel on appellant=s request.