Mark Dolph v. State

OPINION

Mark Dolph, who chose to represent himself for a portion of his trial during the guilt/innocence phase, was convicted by a jury for unlawful possession of a firearm by a felon, sentenced to fifty-eight years’ imprisonment, and ordered to pay a $10,000.00 fine. 1 On appeal, Dolph argues that the trial court erred in finding his waiver of counsel and election to represent himself to be knowing, voluntary, and intelligent because the court “failed to admonish him regarding the nature of the charge, the statutory offense included within it, the range of allowable punishment, the possible defenses to the charges and any mitigating circumstances.” After reviewing the trial, we find that Dolph was sufficiently admonished in accordance with Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We find that Dolph waived his right to counsel with full. knowledge of the proceedings. Further, he was assisted by counsel during the proceedings at all times. We reform the judgment to delete the assessment of a fine. Otherwise, we affirm the trial court’s judgment.

I. Dolph’s Invocation of the Right of Self-Representation Was Made Competently, Knowingly and Intelligently, and Voluntarily

“The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any *902 state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” Id. at 807, 95 S.Ct. 2525. “Those amendments also guarantee that any such defendant may dispense with counsel and make his own defense.” Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997) (citing Faretta, 422 U.S. at 818-20, 95 S.Ct. 2525); see Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (“[T]he Constitution does not force a lawyer upon a defendant.”).

"When an accused manages his own defense, he relinquishes ... many of the traditional benefits associated with the right to counsel.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. These rights must be waived “(1) competently, [2] (2) knowingly and intelligently, and (3) voluntarily.” Collier, 959 S.W.2d at 625 (citing Godinez v. Moran, 509 U.S. 389, 400-01, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 834-36, 95 S.Ct. 2525). “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams, 317 U.S. at 279); see Collier, 959 S.W.2d at 625. “The decision is made ‘voluntarily 5 if it is uncoerced.” 3 Collier, 959 S.W.2d at 625 (citing Godinez, 509 U.S. at 401,113 S.Ct. 2680).

A trial court need not follow a “formulaic questioning” or particular “script” to assure itself that an accused who has asserted his or her right to self-representation does so with “eyes open.” Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim.App.1991). Yet, from Faretta, we gather that if (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is “a mistake not to accept the assistance of counsel” and that the defendant will “be required to follow all the ‘ground rules’ of trial procedure,” the right of self-representation cannot be denied. Faretta, 422 U.S. at 835-36, 95 S.Ct. 2525.

Here, the record establishes that Dolph insisted on representing himself after the trial court warned him of the dangers and disadvantages of such a choice.

Although Dolph had the assistance of the appointed public defender, Derric McFarland, Dolph informed the court of his desire to represent himself on the day of jury selection. 4 Dolph explained, “[T]he reason I ask that is because he sometimes — or he hasn’t filed no motions or, you know, if there’s something I want him to do and he tells me he don’t want to do it during trial, I figured like that wouldn’t be a fair trial.” After the court asked Dolph why he believed self-representation would *903 benefit him, Dolph explained the he would make arguments that his counsel would not make — namely, that his bond should be reduced and that the trial court lacked subject matter jurisdiction — and that he would “bring up objections that [McFarland] wouldn’t.”

The court determined that Dolph could read and write, had a tenth-grade education, and obtained a GED and found that there were no issues relating to competency or mental disease. The court admonished Dolph, “I’m going to have to hold you to the same standard that I would attorneys, in other words, I’m going to have to expect you to follow the rules of evidence and the rules of procedure.” The court also reminded him again that he had the right to be represented by counsel. The trial court discussed at length the expectation that Dolph follow the court’s evidentiary rulings 5 and the procedures involved in the criminal proceeding and warned Dolph that he would not enjoy hybrid representation 6

Despite the court’s explanations and warnings against hybrid representation, Dolph still desired to represent himself. The court found:

Well then — what—I’ve determined that you’ve got sufficient education, I’ve determined that you’re competent and that you’re literate. I have gone over some of the issues that you’re going to have to — that, some of the rights that you have, some of the consequences of representing yourself. I will go through a few more of them. I’ve kind of explained to you the procedure with respect to the making of objections and the introduction of evidence after the court has made a ruling on the objections.

All right, so you’re electing to represent yourself. I’ve gone through the factors that the Supreme Court identified in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. If you persist in representing yourself, that’s your right. We will respect that. I’m going to designate ... standby counsel to assist you on any legal issues, legal questions that you may have. But you’ve undertaken to represent yourself in this *904 matter, and so — you have a right to do that, and so that’s what we’re going to do.

Dolph’s brief admits that the “trial judge’s inquiry into Appellant’s education, literacy and competency was proper for a Faretta hearing, as was the judge’s summary of the trial process and warnings that Appellant would be held to the same standards as appointed counsel.” We find that the record contains proper admonishments concerning pro se representation and all necessary inquiries to enable the trial court to assess Dolph’s knowing exercise of the right to defend himself. See Gaffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992). Dolph’s persistence in asserting his right of self-representation despite the court’s admonishments was all that was required in order for the court to determine that the assertion was made purposefully. See Burgess, 816 S.W.2d at 426, 429; 7 Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984) (quoting United States v. Tompkins, 623 F.2d 824, 825 (2d.Cir.1980)).

Dolph’s only complaint, then, is that there is “insufficient evidence that Appellant knowingly, intelligently, and voluntarily waived his right to counsel.” He asserts that “the admonishments that were crucial to Appellant’s case were those related to the range of punishment, possible defenses to the statutory offense, and any mitigating circumstances.”

II. Waiver of Counsel — Hybrid Representation

A. Summary of the Proceedings

During the proceedings, Dolph utilized his standby counsel. The record reflects that McFarland “briefly whisper[ed] to the defendant” during voir dire. McFarland expended effort to secure a witness allegedly favorable to Dolph, issued a subpoena for Dolph, and otherwise advised Dolph when asked for assistance during trial. Most importantly, Dolph stepped aside in the middle of the guilt/innocence phase, and McFarland resumed his place as active counsel for the remainder of the proceeding.

These efforts failed Dolph since the evidence of his guilt was strong. Officer Kelly Dial of the Nash Police Department testified that he witnessed a vehicle pull into “the parking lot of the Country Store” at night to “make a real quick transaction without going inside the store, kind of a hand to hand with another occupant outside — or another person outside of the store, and then they drove away.” Dial suspected drug activity. He noticed that the vehicle had an expired tag and made a traffic stop. Dolph “was the passenger in the rear of the vehicle.”

Dial testified that the driver of the vehicle gave consent to search. According to Dial, the driver “said that he thought there may be some crack cocaine in a towel in the back seat.” Dolph was asked to exit the vehicle. Dial testified, “[Dolph] ad *905 vised me that there was a gun in the back seat. Or pistol, excuse me, . .■. that he was holding ... for a friend.” Dial recovered a “Jimenez Arms .380” semi-automatic pistol that was loaded with “seven rounds, including one in the chamber.”

After Dial testified, Dolph argued that the testimony was inadmissible because he believed his Miranda rights were violated. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court ruled that the objection was waived because the testimony was previously introduced without objection. This prompted Dolph to ask that McFarland be allowed to represent him. After further discussion and admonishments, the trial court allowed stand-by counsel to resume the role of active trial counsel. McFarland conducted the remainder of the trial, which included Officer Scott Eudy’s testimony that Dolph said he was holding the gun for a friend. 8 McFarland also represented Dolph during the punishment phase, wherein Dolph pled true to the State’s enhancement allegations.

B. Dolph’s Arguments

“A judge must investigate as long and as thoroughly as the circumstances of the case before him demand” prior to determining that the right to counsel has been waived. 9 Blankenship, 673 S.W.2d at 683 (quoting Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948)). “To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments, thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” Id. (quoting Von Moltke, 332 U.S. at 723, 68 S.Ct. 316).

Dolph complains that “the admonishments that were crucial to [his] case were those related to the range of punishment, possible defenses to the statutory offense, and any mitigating circumstances.” 10 “To assess whether a waiver [of the right to counsel] is- effective, courts consider the totality of the circum *906 stances. This means that courts must examine “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App.2008). 11 At a pretrial hearing, the trial court instructed Dolph that he was “charged by indictment ... with the unlawful possession of a firearm by a felon, with two prior felony convictions.” At that time, Dolph, represented by counsel, expressly waived the reading of the entire indictment. The State explained the range of punishment Dolph would face at trial:

For the record, Your Honor, the State made an offer to drop Mr. Dolph’s enhancement paragraphs. He is double enhanced as an habitual offender, making his punishment range a minimum of 25 years to 99 or life. The State offered to drop those two enhancement paragraphs and plead Mr. Dolph to eight years. That offer expired last Friday. The State now makes an offer to plead him to ten years today. Otherwise, his minimum will be 25 at trial.

McFarland asked Dolph if he understood the statement, and the court asked if he understood the offer. Dolph responded affirmatively. 12 Thus, the record shows that Dolph was aware of the charges against him as well as the range of punishment. 13 Although Dolph complains that the trial court failed to admonish him about possible defenses to the charges and circumstances in mitigation thereof, there is no argument or evidence that any viable defense or mitigating evidence existed or that the trial court had any information regarding possible defenses or mitigating circumstances.

Waiver of counsel is valid only if the defendant has a broad understanding of the entire matter. Dolph had full knowledge of the entire proceeding and waived counsel after extensive warnings informed him of the possible consequences of his choice.

C. Dolph Received Assistance of Counsel at all Times

The United State Supreme Court wrote in Faretta:

[The Sixth Amendment] speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. *907 The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.

Faretta, 422 U.S. at 819, 95 S.Ct. 2525.'

“The term ‘standby counsel’ usually describes situations when, in response to a defendant’s request for self-representation, the trial court instead allows the defendant’s attorney to remain as counsel and be available to advise the defendant and participate in the case, or not, as requested by the defendant.” Walker v. State, 962 S.W.2d 124, 126 (Tex.App.Houston [1st Dist.] 1997, pet. ref'd) (citing Faretta, 422 U.S. at 834, 95 S.Ct. 2525). “In such a case, if the defendant thereafter invokes the participation of standby counsel, the representation becomes hybrid, which has been described as ‘partially pro se and partially by counsel.’ ” Id. (citing Landers v. State, 550 S.W.2d 272, 280 (Tex.Crim.App.1977)). “The Faretta admonishments for pro se defendants are not required for defendants engaged in hybrid representation.” Id. (citing Maddox v. State, 613 S.W.2d 275, 286 (Tex.Crim.App.1980) (op. on reh’g)); Robertson v. State, 934 S.W.2d 861, 865-66 (Tex.App.-Houston [14th Dist.] 1996, no pet.).

We find that Dolph engaged in hybrid representation (partially pro se and partially by counsel) in this case. McFarland represented Dolph during all pretrial proceedings, a portion of the guilt/innocence phase, and all of the punishment phase. During the time Dolph conducted the voir dire, McFarland was present, as stand-by counsel, to answer Dolph’s questions. The record shows McFarland continued to participate in the trial — he conferred with Dolph, and the trial court recessed to allow “[t]he attorney[s] ... to exercise their strikes,” affording Dolph another opportunity to confer with McFarland. Dolph also conferred with McFarland during the portions of the guilt/innocence phase which Dolph conducted. The record shows that McFarland explained to the trial court that the State was about to stipulate to certain redactions to the videorecording of Dolph’s arrest prior to Dolph’s assertion of self-representation. Because the stipulation had not yet been entered, McFarland urged the trial court to secure it. McFarland also informed the court that there might be a witness favorable to Dolph and issued a subpoena to secure her presence. After Dial’s testimony, the court allowed McFarland to conduct the remainder of the trial.

In cases where hybrid representation is allowed, “no question of waiver of counsel is involved.” See Maddox, 613 S.W.2d at 286 (quoting Phillips v. State, 604 S.W.2d 904, 908 (Tex.Crim.App.1979)). Thus, we reject Dolph’s complaint that his waiver of the right to counsel was involuntary because the court failed to give the requested admonishments. 14 See id. (ad *908 monishment required only where defendants represent themselves without assistance of counsel); Phillips, 604 S.W.2d at 907-08 (Tex.Crim.App.1979) (concluding there was no waiver of counsel where counsel remained to assist defendant when necessary, “Appellant was not prohibited from conferring with his attorney,” “counsel continued to make objections throughout the trial,” and counsel “made the majority of the closing argument at the guilt or innocence phase and all of the argument at the punishment phase”). 15 We overrule Dolph’s point of error.

III. Reformation of the Judgment

The Texas Rules of Appellate Procedure give this Court authority to reform judgments when necessary. Tex.R.App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex.App.-Texarkana 2009, no pet.). “Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.-Dallas 1991, writ ref'd)).

Dolph’s punishment was within the range of punishment set forth in Section 12.42(d) of the Texas Penal Code. See Tex. Penal Code Ann. § 12.42(d) (West Supp.2013). This section does not contain provisions allowing imposition of the $10,000.00 fine assessed in this case. See id.; Harris v. State, 903 S.W.2d 514, 515 (Tex.App.-Texarkana 1995, no pet.) (“[T]here is no statutory provision for a fine as habitual offender.”); Goodwin v. State, 694 S.W.2d 19, 29 (Tex.App.-Corpus Christi 1985, pet. ref'd) (holding trial court erred by assessing fine under Section 12.42(d)); Carey v. State, 677 S.W.2d 821, 823 (Tex.App.-Fort Worth 1984, no pet.) (concluding similarly). Thus, we modify the judgment to delete the $10,000.00 fine.

IV. Conclusion

We modify the judgment to delete the assessment of a fine. As modified, we affirm the trial court’s judgment.