La Marvin Dean Gross v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-07-00056-CR ______________________________ LEMARVIN DEAN GROSS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Third Judicial District Court Anderson County, Texas Trial Court No. 27197 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION The guilt (1) of LeMarvin Dean Gross had been adjudicated (2) for almost six months. His subsequent punishment hearing (3) was almost complete, lacking only sentencing by the trial court. Just before he was sentenced, Gross for the first time told the trial court he wanted to represent himself at that hearing. Gross' appeal asserts only that the trial court erroneously denied Gross' right to represent himself. We affirm the judgment of the trial court because Gross' assertion of the right to represent himself was untimely. The Sixth Amendment to the United States Constitution guarantees a defendant the right to self-representation in a criminal trial. Faretta v. California, 422 U.S. 806, 807, 817-18, & 829-30 (1975); see also McKaskle v. Wiggins, 465 U.S. 168, 170 (1984). This is true despite the high probability that, as one federal appellate court has noted, "pro se representation is usually inadequate and often unconducive to the orderly administration of a criminal trial." United States v. Price, 474 F.2d 1223, 1227 (9th Cir. 1973). A trial court may not deny an accused the right to self-representation merely on the basis that the accused lacks expertise in the law or professional capabilities. Id. Instead, the only proper inquiry for the court to make is whether the defendant has the capacity to assert such a right. Faretta, 422 U.S. at 835-36. Nevertheless, the right to self-representation must be made in a timely manner. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997). Generally, the assertion of one's right to self-representation must occur before a jury is empaneled. Id.; Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); see generally Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 1977) (right to self-representation asserted before jury empaneled); Price, 474 F.2d at 1227 (right to self-representation asserted before jury selection); United States v. Dougherty, 473 F.2d 1113, 1124 (D.C. Cir. 1972) (acknowledging trial court has discretion to permit self-representation if not asserted until after trial has begun); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965) (right to self-representation asserted before jury selection). "Once the right has been asserted, the trial judge is obliged to make the accused aware of the consequences of self-representation." Winton, 837 S.W.2d at 135 (citing Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984)); see also Faretta, 422 U.S. at 835. If, after receiving the appropriate admonishments regarding the consequences of self-representation, the accused continues to assert the desire for self-representation, then the court must allow the accused to proceed as long as the assertion of the right to self-representation "is unconditional and not asserted to disrupt or delay the proceedings." Winton, 837 S.W.2d at 135 (citing Blankenship, 673 S.W.2d at 585); see also Faretta, 422 U.S. at 835-36; Maldonado, 348 F.2d at 16 (trial court could have exercised discretion in denying defense continuance on day of trial, insisting on proceeding with trial, even after granting accused permission to self-represent). An accused's assertion of the right to self-representation must also be unequivocal. Maldonado, 348 F.2d at 15-16 (noting codefendant's failure to assert self-representation right unequivocally). If the attempted exercise can, at best, be characterized as equivocal (or if the assertion of the right to self-representation is later withdrawn), then the accused's assertion of the right to self-representation will be deemed inadequate under appellate scrutiny. See, e.g., Funderburg v. State, 717 S.W.2d 637, 642-43 (Tex. Crim. App. 1986) (assertion of right to self-representation withdrawn on date of trial); DeGroot v. State, 24 S.W.3d 456, 457 (Tex. App.--Corpus Christi 2000, no pet.). Moreover, the accused's assertion of the right to self-representation cannot be exercised merely to delay the orderly procedure of the courts or to interfere with the fair administration of justice. DeGroot, 24 S.W.3d at 457; Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd); cf. Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977) (discussing impropriety of substituting retained counsel for appointed counsel for purposes of delaying administration of justice). If an accused waits to assert his or her right to self-representation until the punishment portion of a trial, such a request for self-representation comes too late, even if a dispute has suddenly arisen between the accused and defense counsel concerning appropriate trial strategy. McDuff, 939 S.W.2d at 619. In the case now before this Court, Gross' appointed counsel filed a motion to withdraw shortly before the beginning of the December 13, 2006, punishment hearing. That motion did not raise Gross' right to represent himself. The trial court had revoked Gross' community supervision nearly six months earlier. At this December punishment hearing, Gross asked the trial court to let his appointed counsel withdraw from representing him. Gross explained that a conflict had arisen with the appointed counsel; Gross did not, at that time, mention to the trial court that he wished to represent himself. The trial court ultimately denied defense counsel's motion to withdraw and then heard arguments concerning punishment in the case. At the conclusion of arguments, the following exchange occurred: THE COURT: I'm not going to grant him [defense counsel] a motion to withdraw or you [Gross] a motion to have him withdraw today. We've come a long way and we've had delays and we've had this. And as far as I know, the only thing remaining today is for me to sentence you anywhere from 5 to 99 years or life and a fine up to 10,000 dollars. Anything else you want to say? I'll mark this [exhibit handed to the judge by Gross] as D-1. [Gross]: Judge, I'd like to represent myself. THE COURT: You're going to represent yourself on appeal? [Gross]: Sir? THE COURT: You want to handle your own appeal? [Gross]: This case here. THE COURT: Sir, we're here. There's no more evidence that's going to be received or offered. [Gross]: Because me and Mr. Cargill, we had a misunderstanding and I want to file a complaint to the State Bar. THE COURT: Well, I don't see that he has done anything wrong. Again, he's here today, I'm here today, and it's a simple matter. So if you have anything else you want to say. [Gross]: No, sir. The trial court then sentenced Gross to ninety years' imprisonment for attempted murder and ten years' imprisonment for possessing a firearm while a felon. The record before us is clear: Gross waited until after the initial guilty plea hearing (at which he was placed on deferred adjudication community supervision), the subsequent adjudication hearing, his adjudication of guilt, the passing of almost six months more, and almost all of the sentencing hearing, before he first asserted his desire to represent himself. Gross' decision to wait until mere seconds before the trial court was to pronounce sentence comes much too late in the proceedings. If he truly wished to represent himself, he should have asserted that right earlier. Because Gross failed to timely assert his desire to represent himself in this case, we cannot say the trial court erred by denying his request. We affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: August 15, 2007 Date Decided: September 4, 2007 Do Not Publish 1. In 2005, LeMarvin Dean Gross pled guilty to charges of attempted murder and felon in possession of a firearm. See Tex. Penal Code Ann. § 15.01 (Vernon 2003) (criminal attempt), § 19.02 (Vernon 2003) (murder), § 46.04 (Vernon Supp. 2006) (unlawful possession of firearm by felon). Gross also admitted that he had been previously and finally convicted of a felony offense. See Tex. Penal Code Ann. § 12.42 (Vernon Supp. 2006) (enhanced penalties for persons previously convicted of felony offense). Pursuant to a negotiated plea agreement, the trial court accepted Gross' guilty plea, but the court deferred a finding of guilt and released Gross to community supervision for a period of ten years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon 2006) (deferred community supervision). 2. In 2006, the State sought to adjudicate Gross' guilt. The trial court conducted a hearing on the State's motion June 21, 2006. At the conclusion of the hearing, the trial court granted the State's motion and formally held Gross guilty of the original charges. 3. For varying reasons, Gross' punishment trial was postponed until December 13, 2006. The trial court ultimately sentenced Gross to ninety years' imprisonment for the attempted murder conviction and ten years' imprisonment for Gross' conviction for unlawfully possessing a firearm.