Newkirk, Frederick Adam v. State

AFFIRMEI); Opinion Filed January 22, 2013.
In The
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No. 05-1 2-00202-CR
FREDERICK ADAM NEWKIRK, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Kaufman County, Texas
Trial Court Cause No. 10-CL-1001
OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Lang
Frederick Adam Newkirk appeals the trial court’s judgment convicting him of possession of
marijuana in an amount of two ounces or less.
1 During the trial, Newkirk represented himself. The
jury found Newkirk guilty, that the offense occurred in a drug-free zone, and assessed his
punishment at one year of confinement and a $4,000 fine. Newkirk raises two issues on appeal
arguing: (1) the trial court did not adequately advise him of the dangers and disadvantages of self-
representation; and (2) the evidence is insufficient to show that he knowingly or intentionally
possessed marijuana. We conclude the trial court was not required to advise Newkirk of the dangers
The statutolA spelling of the substance is “marihuana.” See TEx. HEALTH & SAFETY CODE ANN. § 481.002(26), .481.120.122 (West
2010); Smith v. State, 176 S.W.3d 907. 911 n.1 (Tex. App-—Dallas 2005, no pet.). The common spelling of the word is “marijuana.” See
Smith, 176 5.W.3d at 911 nI.
and disadvantages of self-representation because he had standby counsel at his disposal and the
evidence is sufficient to support Ncwkirk’s conviction. The trial court’s judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
While on patrol, Officer Dock Ballard observed a vehicle that was missing the back window.
He followed the vehicle and observed that the driver failed to signal during two turns. He pulled the
vehicle over near an elementary school. Newkirk was the driver and there were no passengers in the
vehicle. Ballard obtained Newkirk’s driver’s license and insurance, and returned to his patrol car
to run the information. He learned that there were two outstanding warrants for Ncwkirk. As a
result, Ballard arrested Newkirk and placed him in the back of the patrol car.
Meanwhile, Ballard made arrangements for Newkirk’s vehicle to be impounded. Officer
Christopher Lee, who arrived at the scene after Newkirk was pulled over, inventoried the vehicle for
impoundment. Lee found a small Ziploc bag “in a flap in front of the [driver’s] seat like a little map
packet or something like that.” Inside the bag, Lee found marijuana.
Newkirk was charged by information with possession of marijuana in an amount of two
ounces or less. Before trial, Newkirk’s defense counsel sought to withdraw. A hearing was held on
that motion and on Newkirk’s request to assert his right of self-representation. The trial court
granted defense counsel’s motion to withdraw, but appointed him to serve as Newkirk’s standby
counsel. Then, the trial court made an inquiry into Newkirk’s request to waive his right to counsel
and exercise of his right of self-representation. After the trial, the jury found Newkirk guilty; that
the offense occurred in a drug-free zone, and assessed his punishment at one year ofconfinement and
a $4,000 fine.
H. RIGHT TO SELF-REPRESENTATION
hi issue one, Newkirk argues the trial court did not adequately advise him ofthe dangers and
disadvantages of scltrepresentation. He claims that the trial court failed to advise him: (1) of the
charges against him: (2) of the possible range of punishment: (3) of his right to call witnesses: (4)
of any technical questions dealing with the definition of marijuana or drug-free zones: (5) of the
consequences ofan allegation that the offense occurred in a “drug-free zone”: and (6) that he would
not receive any special consideration because he was proceeding pro se. Also, he argues the trial
court did not inquire into his ability to make a knowing, capable, and voluntary waiver, whether he
understood the written admonishments, or whether he had any questions about the written
admonishments he was signing. Further, Newkirk clthns that the written admonishments were
inadequate and failed to conform to the statutory requirements ofarticle 1.051 ofthe Texas Code of
Criminal Procedure. He acknowledges that before trial, the that court advised him of certain
procedural rules—when to stand and when to speak. The State responds that the trial court
adequately admonished Newkirk of the dangers and disadvantages of self-representation and any
deficiency in the admonishments was not harmful error because the trial court appointed stand-by
counsel for Newkirk.
A. Applicable Law
Federal and state law guarantee a criminal defendant the right to the assistance of counsel as
well as the right to waive counsel and represent himself See U.S. CoNs’r. amend. VI & XIV; TEx.
CONST. art. 1 § 10; TEx. CoDE C1UM. PRoc. ANN. art. 1.05 (West 2005) (accused “shall have right
ofbeing heard by himself, counsel, or both”); Faretta v. California, 422 U.S. 806,818—820(1975);
Hatten i’. State, 71 S.W.3d 332, 333 (Ta. Crim. App. 2002). InFaretta, the U.S. Supreme Court
established the independent right ofself-representation, in addition to the previously recognized right
to waive the assistance of counsel. Faretta, 422 U.S. 806.
A defendant may choose to proceed pro se by exercising his right ofself-representation. Eg
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TEX. CONST. art. 1 § brian accused] shall have the right of being heard by himself...”); fr’aretta,
422 U.S. at 8 18-820(1975): Moore v. State, 999 S.W.2d 385. 396 (Tex. Crim. App. 1999): Collier
v. State, 959 S.W.2d 621,625 (Tex. Crim. App. 1997); Geeclin v. State. 600 S.W.2d 309.313 (Tex.
Crim. App. 1980). When the right of self-representation was established in Faretta, the Supreme
Court stated that “[a]Ithough a defendant need not himselfhave the skill and experience ofa lawyer
in order to competentLy and intelligently choose self-representation, he should be made aware ofthe
dangers and disadvantages ofself-representation. . .“ Faretta, 422 U.S. at 835; accord Blankenship
i State. 673 S.W.2d 578,583 (Tex. Crim. App. 1984); Martin it. State. 630 S.W.2d 952. 954 (Tex.
Crim. App. 1982); Collier. 959 S.W.2d at 626. Once a defendant asserts his right of
self-representation, a trial court is obligated to advise the accused ofthe dangers and disadvantages
ofself-representation. Exparte Winton, 837 S.W.2d 134, 135 (rex .Crim. App. 1992); Williams it.
State, 774 S.W.2d 703, 705-(Tex. App.—Dallas 1989. pet. ref’d).
However, when a trial court appoints standby counsel, the admonishments are not required.
Walker it. State. 962 S.W.2d 124. 126—27 (Tex. App.—Houston [1st Dist] 1997. pet. refd):
Robertson it. State, 934 S.W.2d 861, 865—66 (rex. App.—Houston [14th Dist] 1996. no pet); see
Maddox it. State, 613 S.W.2d 275, 286 (rex. Crim. App. 1980) (op. on motion for reh’g)
(admonishment required onlywhere defendants represent themselves without assistance ofcounsel);
see also Sumrell it. State, No. 05-09-00238—39-CR, 2010 WL 3123302, at 2 (rex. App.—Dallas
Jan. 26,2011, pet. refd) (not designated for publication); Blanton it. State, No. 05-05-01 060-CR,
2006 WL 2036615, at 1 n.2, 3 (Tex. App.—Dallas July 21, 2006. pet. refd)(not designated for
publication); Robinson it. State,No. 05-04-00235-CR, 2005 WL 1670626, at 2 (rex. App.—Dallas
July 19, 2005, no pet) (not designated for publication); Young v. State, No. 05-98-00036-CR, 2000
WL 2676, at * 1 (rex. App.—Dallas Jan. 4, 2000, no pet.) (not designated for publication). But see
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Grant v. State, 255 S.W.3d 642,647—48 (Tex. App.—••Beaumont 2007, no pet.) (disagreeing with
Walker and Rcthc’rtxon that appointment of standby counsel relieves trial court of responsibility to
admonish defendant about dangers and disadvantages of self-representation, but determining
defendant voluntarily and knowingly waived right to counsel). In eases where hybrid representation
is allowed or standby counsel is appointed. “no question of waiver of counsel is involved,” since
counsel remains to assist the defendant, and as a result, there is no need to admonish the defendant
ofthe dangers and disadvantages ofself-representation. See Maddox, 613 S.W.2d at 286; Robertson.
934 S.W.2d at 865.
B. Application ofthe Law to the Facts
The record shows that Newkirk signed a one-page document titled “Notice Concerning
Dangers and Disadvantages of Self-Representation and Notice Concerning Financial Inability to Hire
An Attorney” on two separate occasions before his trial. The first notice was signed on September
2,2010, and the second was signed on January 13,2011. Then, on March 31,2011. the trial court
signed an order that determined Newkirk was indigent and appointed him trial counsel. Newkirk’s
trial counsel sought to withdraw. On November 16, 2011, a hearing was held on that motion and
on Newkirk’s request to assert his right of self-representation. After the trial court granted defense
counsel’s motion to withdraw, it appointed standby counsel forNewkirk. Then, the trial court made
an inquiry into Newkirk’s desire to represent himself and standby counsel assisted Newkirk during
the trial court’s inquiry. Newkirk’s trial began on December 5,2011. During voir dire, Newkirk
stated that he was a “college student,” and he “majored in psychology” and “minored in criminal
justice.” During his opening statement, Newkirk stated he was “ex-military” and a “war vet.”
Consistent with Walker, Robertson, and Maddat, this Court has previously held that when
a defendant has standby counsel at his disposal, the trial court is not required to admonish the
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defendant on the dangers and disadvantages of self—representation. See Surnrell, 201 () WL 3 123302,
at *2; B/anton, 2006 WL 2036615, at * I n2, 3; Robinson, 2005 WL 1670626, at *2; Young, 2000
WL2676,at*l.
We cannot conclude the trial court did not adequately advise Newkirk of the dangers and
disadvantages of self-representation because Newkirk had standby counsel at his disposal and, as a
result, the trial court was not required to admonish Newkirk. Issue one is decided against Newkirk.
III. SUFFICIENCY OF THE EVIDENCE
In issue two, Newkirk argues the evidence is insufficient to show that he knowingly or
intentionally possessed marijuana. Newkirk claims there are no links connecting him to the
marijuana, The State responds that Newkirk was in sole possession of the vehicle in which the
marijuana was found and his testimony confirmed his knowledge of the illegal nature of the
marijuana. Also, the State argues it adduced sufficient facts and circumstances to link Newkirk to
the marijuana.
A. Standard of Review
When reviewing the sufficiency of the evidence, an appellate court considers all of the
evidence in the light most favorable to the verdict to determine whether the jury was rationally
justified in finding guilt beyond a reasonable doubt. See Jackcon v. Virginia, 443 U.S. 307, 318—19
(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323 S.W.3d
893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to determine whether
any rational juror could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An appellate court is required to
defer to the jury’s credibility and weight determinations because the jury is the sole judge of the
witnesses’ credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319,
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326: Merritt, 368 S.W.3d at 525; Brooks, 323 S.W3d at 899. All evidence, whether properly or
improperly admitted, will be considered when reviewing the sufticiency of the evidence. See
McDaniel v. Brown, 558 U.S. 120, 130 S. Ct, 665, 672 (20! 0) (per curiam); Lockhart v. Nelson, 488
U.S. 33, 41—42 (1988); Jackson, 443 U.S. at 319.
B. Applicable Law
The Texas Controlled Substances Act provides in relevant part that a person commits an
offense if he knowingly possesses marijuana in an amount of two ounces or less. See TEx. HEALT[1
& SAFETY CODE ANN. § 481. I 02(3)(D), 481.121 (West 2010). An offense otherwise punishable
under section 48 1 12 l(b)( 1) is a class A misdemeanor if it is shown the offense was committed in
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a drug-free zone. See TEx. HEALTH & SAFETY Cooi ANN. § 481 .134(f) (West 2010).
To prove unlawful possession of a controlled substance, the State must demonstrate that (1)
the defendant exercised care, custody, control. or management over the substance; and (2) the
defendant knew the matter possessed was contraband. See TEx. HEALTH & SAFETY CODE ANN. §
48 1.002(38); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexterv. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether direct or circumstantial, the evidence must
establish that the defendant’s connection with the controlled substance was more thanjust fortuitous.
See Evans, 202 S.W.3d at 161; Poindexter, 153 S .W.3d at 405.
Mere presence at the location where the controlled substance was found is insufficient, by
itself’, to establish possession. See Evans, 202 S.W.3d at 162. However, when a defendant is
exerting exclusive control over a vehicle, it may be inferred that he has knowledge of what is in that
vehicle and he may be deemed to have possessed any contraband found in it. See Menchaca v. State,
901 S.W.2d 640, 652 (Tex. App.—E1 Paso 1995, pet. ref’d); Castellano v. State, 810 S.W.2d 800,
806 (Tex. App.—Austin 1991, no pet.) (citing United States v. Richardson, 848 F.2d 509, 513 (5th
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Cir. 1988)). Although knowledge ofthe contraband may be inferred from the defendant’s exclusive
control of the vehicle, sonic courts have cautioned that sole reliance on the defendant’s control of
the vehicle should not he used to show knowledge when the contraband is found in a hidden
compartment. Set’ CaslL’IkIna, 810 S.W.2d at 806: United Stales it 011Wer—Becerril, 861 F.2d 424.
426—27(5th (‘ir.l988): United Slates it DeIAguila—Rcycc. 722 F.2d 155, 157 (5th Cir.1983). When
contraband is found in a hidden compartment of a vehicle in which the defendant was the sole
occupant, courts have often required a showing of“additional factors indicating knowledge such as
circumstances indicating a consciousness ofguilt on the part ofthe defr,ndant.” See Menchaca, 901
S.W.2d at 652.
C Application ofthe Law to the Facts
The record shows that Newkirk was driving the vehicle and alone. Because Newkirk had
exclusive control of the vehicle, it maybe inferred that he had knowledge ofwhat was in it, i.e., the
marijuana. Sec Mc’nchaca, 901 S.W.2d at 652: Caslellano, 810 S.W.2d at 806. Nevertheless,
reliance solely on Newkirk’s control ofthe vehicle should not be used to infer knowledge when the
contraband is found in a hidden compartment. See Castellano, 810 S.W.2d at 806. However, in this
case, the marijuana was not found in a hidden compartment Instead, the police officer testified he
found it “in a flap in front of the [driver’s] seat like a little map packet or something like that”
Further, during his opening statement and testimony at trial, Newkirk stated he had “been using pot
since [he was] thriteen years old” and “if [he] had [known] S about [the marijuana] . . . [he] would
have smoked it. it wouldn’t have been sitting in [his] car.” Accordingly, we conclude that the
evidence is sufficient to show Newkirk knowingly or intentionally possessed the marijuana. Issue
two is decided against Newkirk.
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IV. CONCLUSION
The trial court was not required to advise Newkirk of the dangers and disadvantages otselt
representation because he had standby counsel at his disposal. Also, the evidence is sufficient to
support Newkirk’s conviction.
The trial court’s judgment is affirmed.
DGLAWS. LAIN(i
JUST ic/
Do Not Publish
Tx, R. App. P.47
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JUDGMENT
FREI)ERICK ADAM NEWKIRK. Appeal from the County ( ourt at Law of
Appellant Kaufman County, Texas. (Tr.Ct,No. 10—CL—
1001).
No. O512-OO2O2(R V. Opinion delivered by Justice Lang, Justices
Moseley and Francis participating.
THE STATE OF TEXAS, Appellee
I3ascd On thc C unit s OifllOfl of this datc thc judgmcnt of thc tn ii court is Au FIRMED
Judgment entered January 22, 2013.
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DOUGLAS S. LANG
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JUSTICE
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