Martin v. State 630 S.W.2d 952

OPINION ON STATE’S MOTION FOR REHEARING

CLINTON, Judge.

Our prior opinion is withdrawn.

In light of the unorthodox way our earlier opinion was produced, the State, in effect, is urging that the Court En Banc engage in its essential function of reviewing an initial opinion on original submission to a panel of the Court.1 Through examination of portions of the record now pointed to by the State and upon further reflection we believed there is enough substance to certain grounds for rehearing formulated by the State,2 and granted leave to file to determine anew whether more than the requirements of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (Faretta), must be satisfied and, if not, whether they were met by the trial court below.

Faretta finds in the Sixth Amendment an independent constitutional right of an accused to conduct his own defense. 422 U.S. at 836, 95 S.Ct. at 2541. Thus, the right to selfrepresentation does not arise from one’s power to waive assistance of counsel. Id., at 814-820, 95 S.Ct. at 2530-2533. Therefore, it is for the accused personally to decide whether assistance of counsel in his particular case is to his advantage, and “his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law,’ ” id., at 834, 95 S.Ct. at 2541.3

To implement the right of selfrepresen-tation the Supreme Court imposed upon a trial court certain duties which, as now seen, are no more than what is expressly stated in or necessarily implied from the following paragraph:

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished *954 benefits. Johnson v. Zerbst, 304 U.S. [458], at 464-465 [58 S.Ct. 1019 at 1023, 82 L.Ed. 1461], Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, [68 S.Ct. 316, 323, 92 L.Ed. 309] (plurality opinion of Black, J.). 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.’ Adams v. United States ex rel. McCann, 317 U.S. [269] at 279 [63 S.Ct. 236 at 242, 87 L.Ed. 268].”

Id., at 835, 95 S.Ct. at 2541.4

The original opinion in the case at bar alludes to prior decisions of the Court and reiterates “requisites” that the State stoutly complains are really “suggestions” which “are not an integral part of the Far-etta rule.” (Emphasis by the State.) We agree that Faretta does not mandate, in the words of the original opinion in this cause, an “inquiry concerning appellant’s age, education, background, or previous mental health history” in every instance where an accused expresses a desire to represent himself, for the record may otherwise be sufficient for the Court to make “an assessment of his knowing exercise of the right to defend himself,” id., at 836, 95 S.Ct. at 2541.5 And in the case at bar we find that assessment is justified.

At the outset we note that the indictment alleged and the State was to prove that appellant had been twice convicted of felony offenses of burglary within six years immediately preceding the instant burglary offense. Thus, like Faretta, appellant had some familiarity with the criminal justice system. Similarly, he had made clear well before trial that he desired to represent himself, and that the judge who heard the matter had determined to honor his position was known to the trial judge.6 Still, the trial judge reprised the matter of self representation just before beginning one trial of this case October 26, 1977. In the margin we set out pertinent portions of his inquiry — reminiscent of the germane portions of colloquys in Faretta, supra, U.S. at 807-810, nn. 2 and 3, 95 S.Ct. at 2527-2529, nn. 2 and 3 — that brought the court again to respect the choice of appellant to defend himself.7

That done, a jury was selected, according to an entry by the court reporter, by Thomas Mulvaney, an assistant district attorney, and appellant, himself. Before the jury *955was seated in the box, out of stated abundance of caution the trial court arraigned appellant, and — still outside the presence of the jury — presented to appellant for execution “if it meets your approval” the written “waiver of attorney” alluded to in the original opinion of the Court.8 After appellant executed the waiver, the jurors were seated, sworn, empanelled and instructed generally as to their duties. The court announced both sides were having witness problems, and the jury was excused until the next morning.

October 27 the State moved in writing for a continuance on account of unavailability of a material witness and, without objection, a mistrial was declared and the case reset for trial November 7. In advance of that day appellant prepared a proper request for issuance of subpoenas for four witnesses. When the trial was again continued, appellant made written protest that he had not been present to object to the continuance; apparently as a consequence the record shows that November 14 appellant moved for a continuance, and that was granted. Trial commenced November 28.9

Given these facts and circumstances — from initial demand for selfrepresenta*956tion, through the confirmed admonishment by Judge Gist, the subsequent inquiry conducted by Judge Giblin, to his participation in the first aborted trial—as to the final completed trial, we find the record establishes that appellant knew what he was doing and his choice was made with eyes open. Faretta, supra, U.S. at 835-836, 95 S.Ct. at 2541.

Therefore, the State’s motion for rehearing is granted, and we proceed to consider and decide the remaining grounds of error presented by appellant.

Ground of error number one asserts that the trial court erred in not submitting a charge on circumstantial evidence. However, appellant does not summarize the evidence to inform us of the circumstantially evidentiary nature of the facts of the matter, and, pointing to his confession to committing the offense, the State insists its case does not depend solely on such character of evidence. Be that as it may, appellant concedes that he did not object to the charge on that account nor request an instruction on circumstantial evidence. Thus, the alleged error has not been preserved for review, as required by Articles 36.14 or 36.15, V.A.C.C.P., and may not be reviewed on appeal unless it appears that his rights were injured or he did not have a fair and impartial trial. Article 36.19, V.A.C.C.P.; Mills v. State, 508 S.W.2d 823, 825-826 (Tex.Cr.App.1974); see Boles v. State, 598 S.W.2d 274, 278 (Tex.Cr.App.1980). Though it may be that failure to protect the record flowed from deficiencies in the selfrepre-sentation that appellant demanded be accorded him, such is one of the risks he assumed.10 Hawkins v. State, 613 S.W.2d 720, 72811 (Tex.Cr.App.1981); Trevino v. State, 555 S.W.2d 750, 75112 (Tex.Cr.App.1977).

The second ground of error complains that the prosecuting attorney imper-missibly commented on failure of appellant to testify. The argument now called to our attention is not, at first blush, a sure implication of a failure to testify. But, alas, we may not further analyze it for, again, the claimed error was not preserved by objection voiced at the time the comments were made. There is nothing to review. Valore v. State, 545 S.W.2d 477, 481 (Tex.Cr.App.1977).

The record with respect to the third ground of error, claiming that an account of committing an extraneous offense within appellant’s confession to the instant offense should have been excluded by the trial court, is in worse shape than the first two grounds. In a hearing outside the presence of the jury the State authenticated appellant’s full confession, but offered an abridged version which omitted appellant’s account of the extraneous offense. Appellant, however, insisted that the complete, unabridged confession be admitted in evidence. Of course, he cannot now characterize as error that which was consented to or invited by him, 5 Tex.Jur.2d 611, § 409, nor complain of material in evidence brought out by him while acting as his own attorney, Gilley v. State, 114 Tex.Cr.R. 548, 26 S.W.2d 1070 (1930).

Following Faretta, the Court has cautioned, “When an accused elects to rep*957resent himself he cannot complain that the quality of his own defense amounted to a denial of effective assistance of counsel,” Williams v. State, 549 S.W.2d 183, 189 (Tex.Cr.App.1977). Our disposition of grounds of error one, two and three are the wounds an accused may have to suffer on appeal for exercising his constitutional right to defend himself at trial, and it is little consolation to have it pointed out that they were selfin-flicted.

The State’s motion for rehearing is granted and the judgment of conviction is affirmed.

W. C. DAVIS, Judge,

concurring on State’s motion for rehearing.

I concur with the majority opinion adopting a more accurate interpretation of the requirements of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, I think it important to caution that, although the particular inquiry suggested in the opinion on original submission 1 is no longer essential in every case, the record must affirmatively reflect that the accused made a knowing and intelligent waiver of his Sixth Amendment right to counsel,2 having been informed of the dangers and disadvantages of self-representation. See Faretta v. California, supra, at 835, 95 S.Ct. at 2541.

Finally, this Court has often reiterated the United States Supreme Court’s declaration that a waiver of the right to counsel will not be “lightly inferred” nor presumed from a silent record and that courts will indulge every reasonable presumption against such a waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), accord; Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.1980); Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.1978); Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977).

ONION, P. J., joins.

TEAGUE, Judge,

dissenting on State’s motion for rehearing.

I find that a majority of the Court, through Judge Clinton, has sufficiently dealt with all of the issues raised in the appellate brief filed by appellant’s court appointed attorney.1 However, not discussed, presumably because it was not raised in the appellate brief, is an issue which I find should be reviewed in the interest of justice,2 and that issue is the applicability of the double jeopardy provisions of the Federal and State Constitutions to this cause.

The freedom from being placed twice in jeopardy, as guaranteed in the Bills of Rights of the Federal and State Constitutions, is such a basic and fundamental part of the American scheme of justice that I believe error involving this right is error usually characterized or labeled “Constitutional Error,” “Fundamental Error,” or “In the Interest of Justice Error.” Error so characterized may be raised for the first time on appeal by the appellant, or by the Court Ex Mero Motu, or may even be raised after a lengthy period of time has elapsed and after the conviction has become final. *958See Ex parte Myers, 618 S.W.2d 365 (Tex.Cr.App.1981). I believe that since the claim of double jeopardy can be raised at any time, unnecessary delay would result if this Court were to postpone at this time the inevitable. Therefore, I believe that we should resolve today, not tomorrow, the double jeopardy question that is present in this cause.3

The United States Supreme Court, see Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), has ruled that the prohibition against placing a person in Double Jeopardy, as guaranteed under the Federal Constitution, attaches when a jury has been empaneled and sworn. This decision drastically changed Texas law. Needless to say, the Supreme Court did not tarry long when it came to a case from Texas, see McElwee v. Texas, 439 U.S. 949, 99 S.Ct. 344, 58 L.Ed.2d 340 (1978), for it vacated by a per curiam decision, in McElwee, Id., this Court’s judgment, and remanded the case back to this Court for reconsideration in light of Crist v. Bretz, supra. This Court on remand, because of the Supremacy Clause of the United States Constitution, see therein Art. VI, ruled that the defendant McElwee was entitled to relief, and reversed his conviction. See McElwee v. State, 589 S.W.2d 455 (Tex.Cr.App.1979). This Court has held since McElwee was decided that Crist v. Bretz, Id., is retroactive to those convictions which had become final prior to the decision by the Supreme Court. See Ex parte Myers, supra.4

From the facts in this cause, and by the above cases, it is obvious that jeopardy attached in appellant’s case once the jury was sworn on October 26, 1977. See Crist v. Bretz, supra. When the trial court declared a mistrial on October 27,1977, a trial with a different jury was thereafter barred unless the appellant consented to the mistrial, or it was shown that the mistrial was mandated by some form of manifest necessity. See Torres v. State, 614 S.W.2d 436 (Tex.Cr.App.1981). I do not concern myself with the latter as the record neither expressly nor impliedly indicates that the mistrial was mandated by some form of manifest necessity. It is, however, apparent from the record that the trial judge declared a mistrial because the State was unable to procure one of its witnesses, a peace officer who was then hospitalized for reasons not stated in the record.5 Under the above cases, I do not find this was a sufficient reason to authorize the trial judge to declare a mistrial — unless appellant consented to the act of the trial judge. E.g., Torres, Id.

The question, whether or not the appellant consented to the mistrial, however, is another and different matter. In Torres, Id., this Court stated:

Consent need not be expressed, but may be implied from the totality of circumstances attendant to a declaration of mistrial. (Citations omitted.) But before a failure to object constitutes an implied consent to a mistrial, a defendant must be given an adequate opportunity to object to the court’s motion. (Citations omitted.) Id. at -441-42).

I find that the record is incomplete at this time, which incompleteness prevents this Court from resolving the question, whether *959or not the appellant consented to the trial court’s declaration of a mistrial on October 27, 1977.

A supplemental statement of facts6 was filed in the trial court on May 30, 1978. It reflects the events that occurred on October 26, 1977. As to October 27, 1977, the only thing that is shown to have occurred is reflected by a short conclusory statement of the court reporter:

(WHEREUPON, on Thursday, October 27th 1977 at 10:00 the State made a Motion for Continuance and it was granted by the Court and the ease was reset for the month of November, 1977).

As easily seen, nothing is expressly stated in the court reporter’s notes concerning either the trial court’s declaration of a mistrial or whether the appellant was present when the motion for continuance was made by the State and granted by the trial court. In fact, the only place in the entire record on appeal, where anything is stated which concerns the trial judge’s declaration of a mistrial, is the docket sheet, and it reflects only the following: “10/27/77 State moved for a cont. Judge granted cont. & case declared a mis-trial. Indictment had not been read and the def. had not answered to it.”7

As noted, the record does not affirmatively reflect whether the appellant was present on the morning of October 27,1977, when the trial judge declared the mistrial and discharged the jury. As to the State’s Motion for Continuance containing a statement, that the appellant did not object to the trial court’s granting the State’s motion, I do not believe that this is the equivalent of him consenting to the trial judge’s declaring a mistrial. The appellant’s consent to the State’s Motion for a Continuance may well have contemplated having the trial recommence with the same jury at a later date.

If the appellant was not present in court on October 27, 1977, when the trial judge declared the mistrial, he was not “given an adequate opportunity to object to the court’s motion.” Torres, supra.

Since the record on appeal is insufficient at this time to permit this Court to make a determination whether appellant’s failure to object constituted an implied consent to the mistrial, and since neither the State8 nor the appellant have had an adequate opportunity to supplement the record on appeal to demonstrate whether consent, either express or implied, may in fact have existed, I would abate this appeal to allow both the State and the appellant the opportunity to supplement the record,9 and to show whether or not the appellant consented to the mistrial. If such consent cannot be demonstrated, I would hold that the appellant’s conviction in this cause was barred by the Federal and State Constitutional provisions of Double Jeopardy.

For failure of the majority not to abate the appeal, I respectfully dissent.