Artavias Chovan Cole v. State

• Court: Court of Appeals of Texas
• Decided: November 13, 2019
• Docket: 09-18-00124-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00124-CR NO. 09-18-00125-CR __________________

ARTAVIAS CHOVAN COLE, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 17-26949, 17-26950 __________________________________________________________________

OPINION

The Sixth Amendment allows a criminal defendant to represent himself at

trial.1 The right to choose (or to reject) counsel is a personal right. And the

defendant’s choice must be honored.2

1 U.S. CONST. amends. VI, XIV, § 1. 2 See McCoy v. Louisiana, 138 S.Ct. 1500, 1507 (2018). 1 That said, an individual’s right to elect to represent himself is not absolute.

When appropriate, a trial court may refuse a defendant’s election to represent

himself.3 But when the defendant elects to proceed without the benefit of counsel,

the trial court may not require the defendant to be represented at trial by counsel

merely because the court believes the defendant does not have the legal training

needed to conduct his defense. 4

Here, the record shows the trial court did just that. As a result, we must reverse

the defendant’s convictions and award the defendant new trials in trial court cause

numbers 17-26949 and 17-26950.

Background

Because we resolve the appeal on the self-representation issue, we limit the

background to the facts relevant to that issue. In March 2017, a grand jury indicted

Artavias Chovan Cole 5 for committing two aggravated robberies. 6 The cases were

assigned cause numbers 17-26949 and 17-26950, and they were consolidated for

3 Faretta v. California, 422 U.S. 806, 834 n.46 (1975). 4 Id. at 835. 5 The record shows that Artavias Chovan Cole is also known as Telismar Semien, Joseph Carrier, Marcus Dean, and Elmo Willard. 6 See Tex. Penal Code Ann. § 29.03(a)(2).

2 trial. In the pretrial proceedings, the trial court appointed the first of what would later

be three attorneys to represent Cole in the cases. At an April 2017 pretrial hearing,

Cole told the trial court he did not want the first attorney to represent him in his case.

The trial court agreed and replaced Cole’s first attorney with someone else.

In August 2017, the trial court conducted another pretrial hearing. In that

hearing, Cole’s second attorney told the court that Cole wanted to represent himself.

According to the attorney, Cole could “do a better job himself on presenting his . . .

rather novel defense.” Then, the trial court determined Cole was not familiar with

the Rules of Evidence, told Cole he needed a lawyer, and explained to Cole he was

facing charges that, if they resulted in conviction, the convictions could lead to two

life sentences. The court informed Cole that “only the foolish” represent themselves,

and in the court’s experience, they lose “every time.”

Then, Cole’s second attorney summed up his views regarding why Cole

desired to represent himself. He explained: “Mr. Cole’s position is the only way that

he can be assured that the proper defense is conveyed [] is that if he does it himself

and that, really, there isn’t any lawyer that would be able to competently represent

him because he needs to make these arguments himself and he can do that with a

standby counsel[.]”

3 After that, the trial court explained why it felt it was not in Cole’s interest to

represent himself. The court said: “[I]f you want this thing heard in the appropriate

fashion, you need a lawyer to guide you; and you can get your voice heard. But if

you don’t know how to do it, you can sit there and I’ll say, [s]orry. You are not doing

it in the correct way. You can’t be heard.”

Cole persisted, however, and he told the court that his second attorney had

“done nothing.” At that point, the court asked Cole if he wanted another attorney.

Cole responded: “Yeah. I would take another one.” The trial court granted the

request, appointing Cole’s third attorney in his cases.

On the morning of Cole’s trial in March 2019, the trial court heard Cole’s

pretrial motions. In the hearing, Cole asked to speak to the court. But the court told

Cole if he had something to say, he needed to “go through the attorney.” At that

point, Cole’s third attorney explained he and Cole could not agree on some matters

and that Cole wanted another lawyer. The trial court responded, stating that Cole’s

third attorney was competent. Then, the trial court and Cole engaged in the following

discussion:

[COLE]: I don’t want him as my lawyer.

THE COURT: We are going to be trying this case on Monday.

4 THE COURT: I’m resetting until Monday, okay? Anything else.

[COLE]: So, you’re going to make me have him as my lawyer if I’m saying I want to fire my lawyer? Then I want to fire my lawyer.

THE COURT: Then you can represent yourself.

...

THE COURT: Only one person can talk at one time for the court reporter who by law must take down everything in this courtroom. [The third attorney] is your attorney or you can represent yourself.

[COLE]: I guess I’m going to have to do that then.

THE COURT: Well, really? Well, you know what is said? Only a fool does that.

[COLE]: Well, I’m going to have to be that fool, sir.

THE COURT: In 40 years, everyone who has tried that, everyone in my 40 years of extensive trial work, has failed miserably.

[COLE]: Okay. Now, I understand that but at the same time --

THE COURT: [Cole] if you want to represent yourself, that’s fine. [The third attorney] will be appointed though to sit next to you; and if you need to refer to anything, fine. You will follow the Code of Criminal Procedure. You will follow the Rules of Evidence. You will follow The Penal Code and all other codes. Now, maybe you’re up to that --

[COLE]: Can we start now?

THE COURT: -- but that’s not the way it works.

THE COURT: Doing what? 5 [COLE]: Following the Code of Criminal Procedure.

THE COURT: We’re in recess. You’re not going to sit there and insult this Court, sir. We’ll see you-all Monday.

[THE THIRD ATTORNEY]: Are we – is he representing himself?

THE COURT: If he wants to, fine. I’ll ask you to sit next to him and we will follow the rules and we will move forward.

Although Cole at that point represented himself, the court and Cole’s standby

counsel agreed to select the jury that day and to start the guilt-innocence phase of

Cole’s trial two days later.

At that point, Cole asked if he could go to the law library to prepare his

defense. The trial court then reversed course. To explain why, the court told Cole

[t]hat’s why [your third attorney] is going to continue to represent you because that

is in your best interest[.] You don’t have a clue about the rules and the proceedings,

and that would only devastate any chance you have.”

The parties completed jury selection that afternoon. Two days later, the guilt-

innocence phase of Cole’s trial began. Cole’s third attorney represented Cole in the

trial, and the jury found Cole guilty of simple—not aggravated—robbery in cause

6 numbers 17-26949 and 17-26950. When the punishment phase of the trial ended, the

jury gave Cole a twenty-five-year sentence in each case.7

In his appeal, Cole asks for new trials in cause numbers 17-16949 and 17-

26950. Cole directs his main complaint in his brief to the trial court’s decision

denying Cole the right to represent himself. 8

Standard of Review

We review a trial court’s decision denying a defendant’s right to represent

himself under an abuse-of-discretion standard.9 Under that standard, we view the

evidence in the light most favorable to the trial court’s ruling. When, as here, the

trial court has not provided the parties with written findings, we imply whatever

findings that we can reasonably imply from the evidence to support the trial court’s

ruling.10

7 A conviction for robbery is a second-degree felony. See id. § 29.02. Cole’s indictments, however, include an enhancement paragraph alleging he had a previous conviction for the crime of deadly conduct, a felony. See id. § 22.05(b). The jury found the respective enhancement paragraphs to be true, enhancing the range of punishment in Cole’s cases to the range that applies to first-degree felonies. See id. § 12.42(b). 8 See U.S. CONST. amend. VI. 9 See Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010) (reviewing whether the defendant was competent to conduct his own defense). 10 See id. 7 A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without

reference to any guiding rules or principles.11 If the record shows the trial court

abused its discretion by refusing to honor a defendant’s decision to represent

himself, the error is structural, not subject to harmless error review, and requires the

appellate court to reverse the judgment. 12

Analysis

In Faretta, the U.S. Supreme Court recognized that a criminal defendant has

a constitutional right to conduct his own defense if the defendant has voluntarily,

knowingly, and intelligently elected to do so.13 The Faretta Court explained it “is

undeniable that in most criminal prosecutions defendants could better defend with

counsel’s guidance than by their own unskilled efforts.”14 But the “right to defend is

personal.”15 According to the United States Supreme Court, “forcing a lawyer upon

11 Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). 12 McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (“Since the right of self- representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.”). 13 Faretta, 422 U.S. at 835-36; see U.S. CONST. amends. VI, XIV, § 1.

14 Faretta, 422 U.S. at 834.

8 an unwilling defendant is contrary to his basic right to defend himself if he truly

wants to do so.”16

When the defendant elects to represent himself, he necessarily waives his right

to assistance of counsel.17 And due to the consequences likely to result from the

election, Faretta requires trial courts to conduct an inquiry and determine whether

the defendant is voluntarily, knowingly, and intelligently waiving his right to

counsel. 18 When the defendant clearly and unequivocally invokes his right to

represent himself, the trial court must inform the defendant of the disadvantages and

dangers of proceeding without counsel. 19 This inquiry is required so the record

shows the defendant “knows what he is doing” and making the choice with his “eyes

open.”20

Generally, when the defendant voluntarily and intelligently waives his right

to counsel after being admonished about the danger and disadvantages of doing so,

15 Id. 16 Id. at 817. 17 Id. at 835; Austin v. Davis, 876 F.3d 757, 764 (5th Cir. 2017). 18 Faretta, 422 U.S. at 835. 19 Id. 20 Id. (cleaned up). 9 the trial court must honor the defendant’s choice.21 And no set formula or script

exists for trial courts to follow when admonishing the defendant about the dangers

of representing himself. Nonetheless, the trial court must take an active role when

assessing if the defendant made a voluntary, knowing, and intelligent decision to

waive counsel. 22

Exceptions exist to the general rule requiring trial courts to honor a

defendant’s election to represent himself. The State argues that two of those apply

here. According to the State, the trial court might have found in the hearing that Cole

made a conscious effort to delay and obstruct the proceedings by invoking his right.

Second, the State claims the trial court might have found that Cole suffered from a

severe mental illness, which made him incapable of representing himself.

21 Faretta, 422 U.S. at 835-36; Burgess v. State, 816 S.W.2d 424, 428-31 (Tex. Crim. App. 1991). 22 Blankenship v. State, 673 S.W.2d 578, 583 (“While Faretta does not mandate 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, the record must contain proper admonishments concerning pro se representation and any necessary inquiries of the defendant so that the trial court may make an assessment of his knowing exercise of the right to defend himself.”) (cleaned up).

10 Certainly, trial courts may deny a defendant the right to represent himself if

the request is conditional, untimely, or represents a calculated attempt to delay or

obstruct the proceedings. 23 Such requests may also be denied when the defendant is

suffering from a severe mental illness.24 Nonetheless, when faced with a defendant

who clearly invoked his right, the request cannot be denied based on the defendant’s

lack of the legal education or training needed for the defendant to act as his own

lawyer. 25

When the defendant has made an informed choice, the decision must be

honored even if honoring the decision will likely work against the defendant’s best

interests.26 And the trial court must defer to a defendant’s election, if valid, even

though the defendant’s decision will cause inconvenience that maybe somewhat

23 Faretta, 422 U.S. at 834 n.46; Blankenship, 673 S.W.2d at 584-85. 24 Indiana v. Edwards, 554 U.S. 164, 178 (2008); Chadwick, 309 S.W.3d at 562-63. 25 Faretta, 422 U.S. at 835; Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989). 26 Faretta, 422 U.S. at 834 (“[A]lthough a defendant may conduct his own defense ultimately to his own detriment, his choice must be honored out of that respect for the individual which is the lifeblood of the law.”) (cleaned up); Scarbrough, 777 S.W.2d at 92 (“While the choice must be knowingly and intelligently made, it need not be wise. Indeed, the accused must be permitted to conduct his own defense ultimately to his own detriment, if that is his informed decision.”) (cleaned up). 11 disruptive of the trial. As long as the inconvenience and disruption do not represent

a calculated effort to obstruct the trial, the fact that some inconvenience will result

is insufficient to allow a trial court to reject a defendant’s valid election of his right.27

In its brief, the State concedes Cole made a clear and unequivocal election to

represent himself. Cole’s election was timely—he made it before the jury was

selected in his case.28 Initially, the trial court granted Cole’s request. But when Cole

asked the trial court if he could go to the law library to prepare a defense, the trial

court reversed course.29 Explaining why, the trial court told Cole that having counsel

was in his best interest because his lack of knowledge would “devastate any chance

you have.” The transcript from the hearing does not reflect the trial court rejected

27 Scarbrough, 777 S.W.2d at 92. 28 McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997) (“An accused’s right to self-representation must be asserted in a timely manner, namely, before the jury is impaneled.”). 29 Although the State did argue that the defendant conditioned his decision to represent himself on being given access to the law library, the record does not show that Cole did so to prevent the trial court from proceeding with jury selection that day. Had the trial court thought Cole was attempting to delay jury selection, it could have explained that the court wanted to select a jury that day and discussed with Cole whether he would have access to the law library before the guilt-innocence phase of his trial began two days later. Or the trial court could have simply asked Cole if he wanted to represent himself even though the court intended to reject his request for the court’s assistance to gain access to the law library. See, e.g., Scarbrough, 777 S.W.2d at 93-94; Blankenship, 673 S.W.2d at 584-85. 12 Cole’s election over its concern that Cole was intentionally trying to delay or

obstruct his trial. And when Cole tried to explain his position to the court, the court

cut him off.

Under the circumstances shown in this record, the trial court could not rely on

Cole’s lack of technical legal knowledge to reject Cole’s decision to represent

himself.30 Nor was the trial court entitled to rely on its own view of what, more likely

than not, was in Cole’s best interest. 31 Had Cole’s choice been honored, we

acknowledge the trial court’s view would likely have proven to be correct. But it

was not for the trial court (or this Court) to judge whether Cole would be better

served by the trial court forcing him to be represented by counsel in his trial.32

The State also cites no authorities that are based on a record like the one before

us here. The State argues that the circumstances surrounding Cole’s election are like

those in Lewis v. State.33 But in Lewis, the trial court expressly found that Lewis was

being confrontational, obstructive, and sought to raise issues irrelevant to his case.34

30 See Faretta, 422 U.S. at 835. 31 Id. at 834. 32 Id.; Scarbrough, 777 S.W.2d at 92. 33 532 S.W.3d 423 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d.). 34 Id. at 432. 13 We do not have a similar finding here. And the record does not support an implied

finding that Cole intentionally elected the right to represent himself to obstruct his

trial. In Lewis, Lewis repeatedly asked the trial court address him as “Paramount

Security Interest Holder of all Property Collateral Belonging to the Defendant.”35

And Lewis insisted he did not understand the charges against him even after the trial

court read them aloud. 36 The record from Lewis’s trial also demonstrates that Lewis

was disruptive in trial, but the record in this case does not. And Cole never denied

that he understood the charges or severity of the punishment he faced if convicted.

There is also nothing in the record to suggest the trial court could have

reasonably found that Cole suffered from a severe mental illness that interfered with

his ability to make a voluntary, intelligent and knowing choice. Cole gave the court

responsive answers when questioned in court. Here, the record simply shows that

Cole and his attorney could not agree on whether it was in Cole’s interest to present

what the attorney believed to be a meritless defense. But Cole’s right to present his

defense was a choice that was personal, and regardless of whether the defense had

any merit, Cole had the right to pursue it in his trial. Earlier in the proceedings, the

35 Id. at 428. 36 Id.

14 trial court appointed a psychiatrist who, after evaluating Cole, concluded that Cole

was competent to stand trial. No one questioned Cole’s competency the morning the

parties selected a jury in his case. And the Court never mentioned in the hearing that

the court thought Cole to be mentally ill.

Importantly, the trial court’s decision recognizing Cole’s third attorney as

standby counsel implies the trial court thought Cole made a voluntary, knowing, and

intelligent election to represent himself and that he was not mentally ill. The trial

court only revoked its decision when Cole asked if he could go to the law library to

prepare his defense. But the trial court did so without determining if Cole was

making a conditional waiver of counsel. That is, whether Cole wanted to represent

himself only if the trial court first allowed him to go to the law library before the

trial began. Moreover, the court never stated it decided to reverse course because the

court believed Cole was intentionally attempting to delay or disrupt his trial. Instead,

the record shows that the court expressed concern over Cole’s chances without the

benefit of counsel, explaining that Cole needed counsel if he wanted to have any

chance whatsoever in his trial.

In conclusion, the record shows the trial court denied Cole the right to

represent himself based on the court’s concern about Cole’s lack of legal training

and knowledge to present meritorious defenses in his trial. But refusing an election

15 for that reason was an abuse of discretion.37 We sustain Cole’s first issue in each of

his appeals.

Conclusion

We hold the trial court abused its discretion by denying Cole’s election to

represent himself at trial. The trial court’s judgments in cause numbers 17-26949

and 17-26950 are reversed. The cases are remanded to the trial court for further

proceedings consistent with the opinion.38

REVERSED AND REMANDED.

_________________________ HOLLIS HORTON Justice

Submitted on January 29, 2019 Opinion Delivered November 13, 2019 Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

37 See Faretta, 422 U.S. at 835, Scarbrough, 777 S.W.2d at 92. 38 We need not reach Cole’s other issue, common to both appeals, complaining that the trial court erred by assessing costs twice when the two causes were consolidated for trial. Because reviewing this issue would afford Cole no greater relief than the relief we have granted, we need not address the issue complaining of costs. See Tex. R. App. P. 47.1. 16