John Anthony Adams v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00013-CR
JOHN ANTHONY ADAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court
Upshur County, Texas
Trial Court No. 16,092
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
Partial Dissenting Opinion by Justice Moseley
OPINION
Due to his uncooperative, unruly, and, at times, offensive behavior, John Anthony Adams
was removed from the courtroom before the formal commencement of his trial. Adams was not
returned to the courtroom until after he had been found guilty of two counts of indecency with a
child by contact. 1 Adams’ appointed counsel had been instructed that his role in the trial was
that of “shadow counsel.” Consequently, he did nothing during the course of Adams’ trial. In
effect, Adams was tried and convicted in absentia without the representation of counsel. The
denial of counsel violated Adams’ Sixth Amendment right to the assistance of counsel and is
presumptively harmful. See U.S. CONST. amend. VI. We further find that the evidence was
sufficient to establish Adams’ identity as the accused named in the State’s indictment and as the
individual who committed the charged offenses. We reverse the conviction and remand this case
to the trial court for a new trial.
I. Courtroom Procedure
The events that led to Adams being tried in abstentia and without the assistance of
counsel require some explanation. The charged offenses, two counts of indecency with a child
by contact, allegedly occurred November 17, 2011. Adams was arrested and placed in jail two
days later. 2 The indictment was filed February 3, 2012. On February 23, 2012, attorney Tim
Cone filed several motions as counsel for Adams. On November 19, 2012, Cone filed a motion
to withdraw as counsel. At a November 26, 2012, hearing on Cone’s motion to withdraw, Cone
1
See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
2
Adams was placed in custody in the county jail November 19, 2011, and remained there until he was sentenced
January 15, 2013.
2
identified a lack of trust and communication between Adams and himself as the primary issues
leading to his request. While acknowledging during the hearing that he had not been fully paid
for his services, Cone affirmatively stated that compensation was not a primary factor behind his
request to withdraw. On the issue of compensation, Adams, who was present at the
November 26 hearing, believed that he and Cone had agreed that Cone would be paid when the
case was resolved. On the issue of Cone’s withdrawal, Adams said that he did not disagree with
Cone’s withdrawal, but he also stated that the withdrawal would adversely affect him because it
would be difficult to find “representation as good if not better than [Cone].” Adams told the trial
court he planned to retain counsel, and the trial court specifically instructed him that he needed
to do that. However, seven days later, on December 3, the trial court appointed J. Scott Novy to
represent Adams in this case. Novy promptly filed standard pretrial motions concerning the
child-victim’s testimony and recorded statements. Then, on January 3, 2013, Adams filed a
pro se motion for a continuance alleging that counsel had withdrawn from his case and that he
was seeking counsel outside of the area. Adams’ pro se motion neither mentioned nor
acknowledged the trial court’s appointment of Novy as counsel.
The trial began January 14, 2013. Before voir dire, Adams refused to be sworn in as a
witness and invited the court to hold him in contempt. Adams stated that he had contacted some
law firms in Austin about representing him and that he had received an email from one firm, but
he acknowledged that no attorney from any of the firms he had contacted would be in court to
represent him that day. Adams complained that the trial court had not given him enough time to
retain counsel. The trial court responded that she had appointed Novy to represent him. Adams
3
then indicated that he had told Novy he would be retaining his own counsel and that Novy “was
good with that.” Adams then turned his back to the bench, prompting the following exchange
between the trial court and Adams:
THE COURT: I will go ahead and admonish you, Mr. Adams, there are
certain things, it is my understanding that -- well, first of all I appointed Mr. Novy
to represent you. You have informed the court that you do not want Mr. Novy
representing you; therefore, Mr. Novy -- Mr. Novy’s status has changed from
representing you as court-appointed counsel to being appointed as a shadow
counsel. He will not interfere with your --
[The Defendant]: He was never appointed as counsel.
THE COURT: So you are listening. Thank you. He will not interfere
with your representation of yourself which you will be doing since you have
refused to allow Mr. Novy to represent you. Am I correct, you do not want
Mr. Novy to represent you? Okay. Well, he’s been appointed . . . He will be
serving now, because of your refusal to accept him as your court-appointed
attorney, unless you tell me otherwise right now he will be acting as shadow
attorney . . . .
The record does not show that Adams waived his right to counsel or that he asked to represent
himself. The trial court continued to admonish Adams, who kept arguing and interrupting.
Adams then invited the trial court to hold him in contempt because the proceedings were, in
Adams’ opinion, “ludicrous.”
A short time later, the venire was seated, and the trial court began explaining the jury
selection process. By way of introduction, the trial court informed the venire members that the
matter for trial was “Cause Number 16092, State versus John Anthony Adams.” The trial court
announced that “[Adams] has been appointed an attorney by the court as shadow counsel. He
does not wish to have counsel.” Adams interrupted, “That’s not true . . . I told them that I was
going to have my own counsel . . . .” Adams again invited the trial court to hold him in
4
contempt, stating, “[T]his is a charade.” The trial court attempted to explain to the venire that
Novy had been appointed “simply as shadow counsel” and that Novy was present in the
courtroom “in case Mr. Adams decides he has questions or if he wants assistance.” Adams again
interrupted, announcing, “I want to hire my own attorney.” A short time later, Adams
interjected, “[L]et me hire my own attorney.” As the trial court explained the voir-dire
procedure to the venire panel, Adams continued to interrupt and argue. The trial court informed
the venire that two different attorneys had represented Adams prior to the appointment of Novy
and that the case had been pending a long time. Adams once again asked to be held in contempt
of court and removed from the courtroom, saying, “This is a kangaroo [court].” At that point,
the trial court had Adams removed from the courtroom. A jury was then selected by the State
with Adams out of the courtroom and with no participation from shadow counsel. The next
morning, the trial court announced to the jury panel that Adams “refuse[d] to come over” from
the jail. The trial proceeded without Adams and with Novy sitting silently in his role as shadow
counsel.
II. Denial of Counsel
Adams was not represented by counsel at trial. Prior to the start of trial, the trial court
changed appointed counsel’s status from that of counsel to that of shadow counsel, which placed
him in the position of only assisting Adams in his self-representation. Adams was never in the
courtroom during the trial, did not actually represent himself, and was never in a position to seek
assistance from his shadow counsel. The defense did not conduct voir-dire examination, strike
5
the jury list, 3 make an opening statement, cross-examine the State’s witnesses, present evidence,
object to any evidence presented, preserve any issues for appellate review, participate in the
charge conference, or present a final jury argument. In short, Adams was denied his right to
counsel.
The State argues that the trial court did not err in denying Adams the opportunity to retain
other counsel. While that may be true, it does not completely address the issue. The State
correctly notes that a defendant does not have the right to obstruct the orderly administration of
justice by postponing a trial. See Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991).
We also agree with the State that Adams had ample opportunity prior to the beginning of his trial
to hire counsel of his choosing, assuming he had the means and the intent to do so. However, the
Court of Criminal Appeals has clearly articulated the three options available to a trial court when
faced with an eleventh hour request to change counsel:
First, at its discretion the court can appoint, or allow the accused to retain, new
counsel. Second, should the trial court deny new counsel, and the accused
unequivocally assert his right to self-representation under Faretta, persisting in
that assertion after proper admonishment, the court must allow the accused to
represent himself. Third, unless the trial court allows new counsel, it must
compel an accused who will not waive counsel and does not assert his right to
self-representation to proceed to trial with the lawyer he has, whether he wants to
or not.
Id. at 428–29 (Tex. Crim. App. 1991) (citing Thomas v. State, 550 S.W.2d 64 (Tex. Crim. App.
1977); Robles v State, 577 S.W.2d 699 (Tex. Crim. App. 1979)). None of the three acceptable
solutions was employed to manage the difficult situation that Adams created.
3
A clerk noted on the defendant’s strike list, “Defendant Did Not Participate.”
6
An accused’s right to the assistance of counsel is now a foundational element in our
criminal justice system. In the words of the Court of Criminal Appeals,
The Sixth Amendment guarantees that “[in] all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.” The
right to counsel at trial is regarded as fundamental. The assistance of counsel
protects a defendant’s right to a fair trial; counsel ensures that the prosecution’s
case is subjected to meaningful adversarial testing and safeguards the defendant’s
rights. An indigent defendant is therefore entitled to appointed counsel unless the
defendant competently, intelligently, and voluntarily waives the right to counsel.
Williams v. State, 252 S.W.3d 353, 355–56 (Tex. Crim. App. 2008) (alteration in original)
(citations omitted).
The trial court interpreted Adams’ comments during the brief time he was in the
courtroom as a waiver of his right to counsel and an assertion of his right to self-representation,
but the record does not support that interpretation. To invoke the right to self-representation, an
accused must clearly and unequivocally assert that right. Scarbrough v. State, 777 S.W.2d 83,
92 (Tex. Crim. App. 1989); Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986).
Adams’ comments evince a strong desire to be represented by counsel. The trial court was not
necessarily required to grant Adams additional time to retain counsel. However, upon refusing
his request for additional time and in the absence of a clear and unequivocal waiver of the right
to counsel and assertion of the right to self-representation, the trial court was required to compel
Adams to proceed to trial with his court-appointed counsel. The failure to do this amounted to a
denial of Adams’ right to counsel.
“A complete denial of the constitutional right to counsel at trial is a structural defect that
affects the framework of the trial.” Williams, 252 S.W.3d at 357 (citing Johnson v. United
7
States, 520 U.S. 461, 468–69 (1997)). Even if Adams clearly invoked his right to self-
representation, the trial court was required to admonish him in accordance with Faretta v.
California, 422 U.S. 806, 818 (1975) (trial court must inform defendant of dangers and
disadvantages of self-representation to establish on record that defendant is aware of perils). In
such a situation, it is incumbent upon the trial court to admonish the defendant that he will
receive no special consideration due to his self-representation and that he will be required to
follow the very technical rules of procedure and evidence just as he would if had the assistance
of counsel. Williams, 252 S.W.3d at 356.
A complete denial of the right to counsel is a structural constitutional error, and, as such,
is immune from harmless-error analysis. Accordingly, we find that the trial court erred in
proceeding to trial without Adams being represented by counsel. We reverse Adams’ conviction
and remand to the trial court for a new trial. Since this error requires that we reverse and remand
for a new trial, it is not necessary to address Adams’ point of error complaining that he was
improperly excluded from the courtroom. Because Adams factual sufficiency issue, if sustained,
would entitle him to greater relief than that afforded pursuant to our representation holding, we
address it below. Rains v. State, 604 S.W.2d 118, 120 (Tex. Crim. App. 1980); see TEX. R. APP.
P. 47.1; Grotti v. State, 209 S.W.3d 747, 773 (Tex. App.—Fort Worth 2006), aff’d, 273 S.W.3d
273 (Tex. Crim. App. 2008); Sterling v. State, 200 S.W.3d 842, 844 (Tex. App.—Corpus Christi
2006, no pet.).
8
III. Sufficiency of Identification Evidence
Adams claims that the evidence was insufficient to prove either (1) that he was the person
named in the State’s indictment or (2) that he committed the charged offenses. Adams was never
in the courtroom after the jury was impaneled and sworn, and none of the testifying witnesses
directly identified Adams in the jury’s presence. The issue, then, is whether a rational jury could
have found, beyond a reasonable doubt, that Adams was the defendant named in the indictment
and that he was the person who committed these offenses.
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the jury’s verdict to determine whether any rational jury could have found beyond a reasonable
doubt the essential elements of indecency with a child by contact. Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency
under the direction of the Brooks opinion, while giving deference to the responsibility of the jury
“to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (citing Jackson, 443 U.S. at 318–19). In conducting a legal sufficiency review, we
must evaluate all of the evidence in the record, both direct and circumstantial, whether
admissible or inadmissible. Shaw v. State, 122 S.W.3d 358, 364 (Tex. App.—Texarkana 2003,
no pet.) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). We evaluate the
9
evidence in light of a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997).
The precise issue in this case is whether we can conclude from a totality of the
circumstances that the jury was adequately apprised that the witnesses’ references to
“Mr. Adams,” “John Adams,” or “Uncle John” were in fact references to the appellant, John
Anthony Adams. See Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. 1981).
A. Courtroom Occurrences
Before the jury was selected, an individual was brought before the trial court. The trial
court, at all times, referred to this individual as “Mr. Adams.” Almost immediately, Adams
began arguing with the trial court and suggesting that the court hold him in contempt. As the
trial court attempted to admonish “Mr. Adams,” he turned his back to the bench. The trial court
attempted to continue the proceedings but was hindered by continuing interruptions and
outbursts from Adams. After a brief period of this unruly behavior, the trial court stated,
“Mr. Adams should be brought back to court for jury selection at 10:25.”
As the venire from which a jury was selected was seated, Adams was returned to the
courtroom. While there, in the presence of the venire, the trial judge identified Adams by name
on four occasions as she attempted to explain to the panel (over his repeated interruptions and
complaints) how his self-representation would take place. In the process, the judge warned him
that if he did not behave appropriately, he could be sent back to the jail and held in contempt for
his behavior. Continuing, the judge attempted to explain the jury selection process to the venire
10
despite Adams’ repeated interruptions with argumentative and, at times, insulting comments.
Eventually, the trial court had Adams escorted from the courtroom.
B. Evidence At Trial
The next day, the trial court called case “Number 16,092[,] State versus John Anthony
Adams.” Even though Adams was incarcerated at the county jail, the jailers reported that Adams
refused to come to the courtroom. The trial commenced, and testimony was presented. The
child’s mother, T.H., 4 testified that she was previously married to Daniel Birch, who was related
to John Anthony Adams. According to T.H., “[H]e was my husband’s aunt’s husband.” John
Adams was married to Rebecca Adams, and they lived in Union Grove, Upshur County, Texas.
Rebecca worked with T.H. at the Kilgore newspaper. T.H. at some point disclosed to Rebecca
that she was having difficulty affording day care for her children. Rebecca volunteered her
husband to watch T.H.’s children while she was working at the newspaper. T.H. accepted
Rebecca’s offer, and shortly thereafter, T.H. began leaving her children in Adams’ care while she
worked. T.H. frequently allowed the children to remain in Adams’ care all night since she
worked until 11:00 or 12:00 at night. T.H. also allowed the children to stay with Adams at other
times. According to the evidence, the children generally stayed with John during the day. One
day, as T.H. was taking her children home, one of the children reported, “Uncle John touched my
pee pee.” The child clearly identified “Uncle John” as the only person who touched her. On
direct examination, the State asked T.H. if she advised her child to make up these allegations
against “John Anthony Adams,” which she denied. T.H. was also asked by the State on direct
4
We will use the mother’s initials rather than her name.
11
examination, “Since that day and that outcry in the car have you seen the defendant John
Anthony Adams or had any form of conversations with him.” She replied that she had not.
Chris Clark, an investigator with the Upshur County Sheriff’s Office, was assigned to
investigate the allegations of indecency with a child lodged against John Anthony Adams.
Through the use of a television monitor, Clark was able to observe the interview of the child-
victim conducted by an employee of the Children’s Advocacy Center. Clark also interviewed
T.H. Clark then located John Anthony Adams and advised him of the allegations against him.
Clark attempted to interview Adams, but as soon as the child’s name was mentioned, Adams had
nothing else to say. At that point, Clark terminated his interview with Adams. Clark testified at
trial that the child consistently identified the perpetrator as “John Adams.” He also testified that
the child “was consistent with where the abuse took place.” John Anthony Adams was arrested
and taken to jail. The child described a “hairy room” with lots of dog hair “where John Adams
had a dog in his room.” According to police reports entered into evidence at trial, officers found
the “house consistent with what [the child] described in the [CAC] interview.” Clark submitted
the findings of his investigation to the Upshur County District Attorney on November 17, 2011.
C. Analysis
The lack of a formal, in-court identification does not necessarily render the evidence
insufficient to establish identity. See Purkey v. State, 656 S.W.2d 519, 520 (Tex. App.—
Beaumont 1983, pet. ref’d). Identity may be shown by circumstantial evidence and the
reasonable inferences therefrom. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin
2000, pet. ref’d). In the absence of an in-court identification of the perpetrator, there is no
12
formula for proving the identity of the accused. Clark v. State, 47 S.W.3d 211, 214–15 (Tex.
App.—Beaumont 2001, no pet.).
In Purkey, the defendant was on trial for rape, and there was no in-court identification of
the defendant as the perpetrator of the rape. Purkey was introduced to the jury panel when
voir dire began as Mr. James Otis Purkey. Purkey, 656 S.W.2d at 520. However, while
questions were propounded referring to “defendant James Otis Purkey, Jr.” and to “defendant
Jimmy Purkey,” the only references by the trial witnesses were to “Mr. Purkey,” “Jimmy
Purkey,” or “Jimmy.” Id. The victim testified at trial that she had known the defendant for
many years and that he raped her. In finding the evidence sufficient to establish identity, the
Beaumont court found that there could have been no doubt in the juror’s minds that the witnesses
were referring to the defendant when they used the names “Mr. Purkey,” “Jimmy Purkey,” and
“Jimmy.” From the totality of the circumstances, the jury was adequately apprised that the
witnesses were referring to the defendant, James Otis Purkey, Jr. Id. at 520. (citing Rohlfing, 612
S.W.2d at 601); see also Meeks v. State, 897 S.W.2d 950, 955 (Tex. App.—Fort Worth 1995, no
pet.) (complainant testified that babysitter named “Johnny” sexually assaulted her; complainant’s
mother testified Johnny Meeks and his wife were in charge of babysitting complainant; “Johnny”
was identified as “Johnny Meeks”; failure of complainant to identify defendant in court pertained
only to weight and credibility of witnesses); Smallwood v. State, No. 02-02-00438-CR, 2003
Tex. App. LEXIS 7167, at *7–9 (Tex. App.—Fort Worth Aug. 21, 2003, no pet.) (mem. op., not
designated for publication) (no in-court testimony specifically identified appellant as same Tanya
Smallwood who repeatedly made harassing telephone calls and whose telephone records were
13
introduced into evidence; witnesses referred to appellant by name and as “defendant” throughout
testimony; no other “defendant” on trial); Johnson v. State, No. 14-98-01079-CR, 2000 Tex.
App. LEXIS 1607, at *9–10 (Tex. App.—Houston [14th Dist.] Mar. 9, 2000, no pet.) (not
designated for publication) (arresting officer referred to “defendant” as person he arrested, took
into custody, and found in possession of stolen jewelry; as appellant was only “defendant” on
trial and there was no indication witness was referring to someone other than appellant, evidence
sufficient to establish identity).
In this case, in the presence of the venire, the trial court addressed the accused as
“Mr. Adams.” There were other instances where the court referred to Adams and he never
disagreed with the trial court; these instances constituted circumstantial evidence that Adams was
the defendant in this case. The State argues, “Circumstantially, the jurors could gather from the
start of voir dire and the testimony from the witness stand discussing John Adams, that the man
who responded to Mr. Adams without any contention as to his identity, was the same defendant
listed in the indictment and jury charge.” The State reasons that because Adams argued
vehemently with the trial court about his attorney and offered no protestations when addressed as
“Mr. Adams,” such is a tacit admission that he was the defendant named in the indictment.
“[V]oir dire examination and opening and closing statements are not evidence.” Fuller v.
State, 73 S.W.3d 250, 264 (Tex. Crim. App. 2002). Nothing in the record suggests Adams was
under oath when he was arguing with and answering the trial court in front of the venire; nor did
the trial court ever directly ask Adams if he was the John Anthony Adams in the indictment, if he
14
understood the charges against him, or arraign him. The trial court did, however, inform the
panel that the case to be tried was the State of Texas versus John Anthony Adams.
Statements made during voir-dire examination have been considered in analyzing the
sufficiency of identifying evidence. In Purkey, the reviewing court took into consideration that
Purkey was introduced to the panel at the beginning of voir dire as Mr. James Otis Purkey. The
Beaumont court found that in the context of the trial as a whole, there could have been no doubt
in the minds of the jurors that the witnesses referred to Purkey, the defendant, in their testimony.
The totality of the circumstances established that “the jury was adequately apprised that the
witnesses were referring to appellant.” Purkey, 656 S.W.2d at 520 (quoting Rohlfing, 612
S.W.2d at 601). In Wiggins v. State, 255 S.W.3d 766 (Tex. App.—Texarkana 2008, no pet.), we
considered occasions in voir dire when the State and defense counsel referred to Wiggins as the
defendant; however, there was also a video recording of Wiggins at the scene of the DWI stop
which of itself we found sufficient evidence of identification. Id. at 771.
We believe that the jury ultimately selected, having been in the courtroom while Adams
was protesting to the trial judge, could conclude that the man standing before the judge was
indicted for this particular offense and was the defendant in this case. The remaining question is
whether there is evidence that the John Anthony Adams who was the defendant in this cause and
who appeared, albeit briefly, in court is the same person that the victim referred to as her
assailant. We conclude that there is sufficient evidence to connect the two.
The victim’s mother knew a man named John Anthony Adams and his wife Rebecca.
T.H. worked with Rebecca Adams and was distantly related to John Anthony Adams. At some
15
point, Rebecca volunteered her husband, John, to babysit for T.H. So, the John Anthony Adams
who lived in Union Grove in Upshur County, Texas, began watching the child-victim. One day
as T.H. was driving the child from Adams’ home, the child said to her mother, “Uncle John
touched my pee-pee.” The next day, T.H. reported this to the Upshur County Sheriff’s Office.
Officer Chris Clark talked with T.H., and based on her report and the child’s interview, Clark
contacted and ultimately arrested John Anthony Adams. Adams was indicted for this offense
and placed in jail where he remained until trial. Throughout the trial, witnesses referred to John
Anthony Adams as the offender in this case. Finally, T.H. connected the offense to the
defendant when she acknowledged that she had not been in contact with “the defendant John
Anthony Adams” since the day of the outcry. There was only one defendant in the case.
In addition, the one law enforcement witness, Investigator Chris Clark testified about the
investigation. He was asked about a statement made by the child-victim in her video-recorded
interview in which she described the alleged inappropriate touching. The child said something
about “Uncle John’s hairy room” where Adams’ dog shed hair. Clark testified that the officers
who searched Adams’ home found a room consistent with this description.
It is the responsibility of the jury to weigh the evidence, resolve any conflicts in
testimony, and “draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214
S.W.3d at 13 (quoting Jackson, 443 U.S. at 318–19). Texas courts are directed to apply the
standard enunciated in Jackson to “determine whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the evidence when viewed in the light most
16
favorable to the verdict.” Id. at 16–17 (citing Jackson, 443 U.S. at 318–19). An inference is “a
conclusion reached by considering other facts and deducing a logical consequence.” Id. at 16.
Based on the totality of the circumstances, it was reasonable for a jury to conclude that
the person in the courtroom referred to as “Mr. Adams” by the trial court and who had been
arguing with the trial judge in the courtroom was the same person—John Anthony Adams—that
the victim reported to her mother touched her private parts. Viewed in the light most favorable
to the verdict, “the necessary inferences are reasonable based on the combined and cumulative
force of all the evidence.” Id. at 16–17. The evidence is sufficient to support the jury’s finding
that the appellant, John Anthony Adams, was the individual charged in the indictment.
We reverse the judgment of the trial court and remand the cause for further proceedings.
Jack Carter
Justice
PARTIAL DISSENTING OPINION
Although I completely concur with the majority that reversible error occurred because
there is no evidence that John Anthony Adams elected to represent himself in his trial, I
reluctantly disagree that the State took the requisite steps to provide the evidence of Adams’
identity, a necessary element of its case.
The majority opinion correctly describes the standard for the measure of legal sufficiency
and restating it would be redundant.
17
In taking the position that Adams has been sufficiently identified at trial, the majority
relies heavily on the events that occurred before and during voir dire of the jury panel.
Assuredly, Adams was present in the courtroom before commencement of voir dire and
both the trial court and the prosecutor made reference to him before the jury panel as “Mr.
Adams.” By his contumaciously contemptible behavior, Adams must have drawn a great deal of
attention to himself at that time. Due to his outbursts, Adams was removed from the courtroom
and then returned for a short while in the presence of the panel before he caused himself to be
ejected from the courtroom once again. Even though he practiced conduct which would have
had the impact of indelibly stamping himself on the minds of almost anyone who would have
been in attendance, this unforgivable conduct occurred before the jury was actually empaneled
and before any evidence could have been provided to the jury. Pointing out that the jury was
drawn from the panel who witnessed all of these things, the State says that “[c]ircumstantially,
the jurors could gather from the start of voir dire and the testimony from the witness stand
discussing John Adams, that the man who responded to Mr. Adams without any contention as to
his identity, was the same defendant listed in the indictment and jury charge.” Contrarily, we
must take into account that “voir dire examination and opening and closing statements are not
evidence.” Fuller v. State, 73 S.W.3d 250, 264 (Tex. Crim. App. 2002).
The majority opinion relies chiefly on the fact that the trial judge made reference at that
time to the accused as “Mr. Adams” and announced that the case was styled, The State versus
John Anthony Adams, together with the fact that the State’s attorney treated him as the person on
trial. Should we ignore the fact that these statements were made before commencement of the
18
trial, we are still faced with the fact that such statements by the trial court and the State would
need to be included in the evidence upon which the jury relied. Surely though, no one should be
able to attribute statements made by the trial judge or the State’s attorney as evidence of the
identity of the defendant (whether during voir dire or after commencement of the trial) because
that would put the trial court and the State’s attorney in the posture of (unsworn) fact witnesses.
After the trial actually commenced, the State presented three fact witnesses: (1) Tara
Hamblen, the mother of the victim; (2) Martha Dykes, who interviewed the child victim; and
(3) Chris Clark, an investigator with the Office of the Upshur County Sheriff.
Hamblen (the niece of Adams’ wife) testified that Adams tended the child while
Hamblen worked. She related that the child had told her that Adams (to whom the child made
reference as “Uncle John”) had touched her inappropriately. Adams was not in the courtroom
during this testimony and Hamblen did not identify him to the jury. No attempt was made to tie
“Uncle John” to the man who had previously been in the courtroom.
Dykes, a trained child forensic interviewer, testified about having talked with the child
and a video recording of that interview was admitted into evidence. Even so, no attempt was
made to have Dykes identify Adams as the perpetrator to whom the child made reference.
Clark testified that he had contacted Adams about the allegations made against him
regarding the child but that Adams refused to cooperate with him. Clark provided no testimony
that would aid to identify Adams, the person on trial, as being the accused.
This case can be contrasted with this Court’s case of Smith v. State, 51 S.W.3d 806 (Tex.
App.— Texarkana 2001, no pet.). In Smith. the defendant became upset with his counsel at the
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beginning of voir dire. He became disruptive, asked to leave the courtroom, refused to follow
the trial court’s instructions, and was finally removed from the courtroom. Id. at 810. Being
returned to the courtroom a short time later, Smith “strenuously requested” a new appointed
counsel, became very disruptive, and refused to assure the trial court he would behave
appropriately if allowed to remain in the courtroom, whereupon he was once again removed. Id.
The similarities to the Smith case now cease. In Smith, a witness who had witnessed some of the
events leading to the charges against Smith, went to the cell where Smith was then being held
during a trial break, and identified Smith as the perpetrator. The witness also identified a
photograph of Smith. We have none of that here.
As mentioned before, my position on this matter is taken very reluctantly because I
realize that this failure to identify Adams can only be counted as a failure of the State to prove a
necessary element of its case with the ineluctable conclusion that there was a legal insufficiency
of the evidence to sustain the conviction. The reluctance on my part springs from the fact that it
appears that the general chaos that brought about the errors in this case were precipitated by the
inexcusable conduct of Adams himself. Therefore, it would seem that the position I take would
reward Adams for his own bad behavior by directing an acquittal.
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Even so, I would hold that the State failed to prove its case and order Adams’ acquittal.
Bailey C. Moseley
Justice
Date Submitted: September 18, 2013
Date Decided: December 13, 2013
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