Cline v. State

770 S.W.2d 844, 1989 Tex. App. LEXIS 912, 1989 WL 36887
CourtCourt of Appeals of Texas
DecidedApril 18, 1989
DocketNo. 6-88-042-CR
StatusPublished
Cited by3 cases

This text of 770 S.W.2d 844 (Cline v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cline v. State, 770 S.W.2d 844, 1989 Tex. App. LEXIS 912, 1989 WL 36887 (Tex. Ct. App. 1989).

Opinion

CORNELIUS, Chief Justice.

Danny Ray Cline was indicted on two counts of arson, for burning a truck and a house, arising out of a single criminal episode. The jury convicted him on both counts and assessed his punishment, en[846]*846hanced by reason of prior convictions, at seventy years’ confinement.

Cline first contends that his constitutional right to represent himself on appeal was denied. He did not request self-representation at trial.

A defendant has a constitutional right to represent himself if he is made aware of the dangers and disadvantages of self-representation and the record clearly demonstrates that he knows what he is doing and that his choice has been intelligently made. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Johnson v. State, 760 S.W.2d 277 (Tex.Crim.App.1988); Martin v. State, 630 S.W.2d 952 (Tex.Crim.App.1982).1

At the sentencing hearing Cline asked the judge for permission to represent himself on appeal. The judge questioned Cline about his experience and his knowledge of legal matters and advised him of the dangers of self-representation. The judge concluded that Cline should have appointed counsel, and then appointed counsel to fully represent Cline on appeal on an advisory basis.

Although a defendant has no right to hybrid representation, Rudd v. State, 616 S.W.2d 623 (Tex.Crim.App. [Panel Op.] 1981), both Cline and his appointed counsel have fully participated in the presentation of this appeal. Both have filed briefs. Thus, Cline has been afforded his right to self-representation, and no harm has been demonstrated. Maddox v. State, 613 S.W.2d 275, 286 (Tex.Crim.App. [Panel Op.] 1981) (opinion on motion for rehearing). Cline cannot now complain about having both the benefits of counsel and the full exercise of his right of self-representation.

Cline also contends that the court committed reversible error by permitting his wife to testify against him at the trial. At the time of trial, the then recently adopted Tex.R.Crim.Evid. 504 controlled this issue. Rule 504 contains two distinct sections which apply to spousal testimony. Section (1) grants the privilege to refuse or prevent the disclosure of confidential communications by one spouse to the other; Section (2) provides that a spouse has the privilege not to testify against the other spouse, but may voluntarily testify for the State. Cline’s wife testified voluntarily; thus, she was a competent witness. Section (1) of Rule 504 did not apply because Cline only objected to allowing his wife to testify at all. He did not object to the substance of her testimony. Error has not been preserved. Powell v. State, 742 S.W.2d 353 (Tex.Crim.App.1987).

Cline next asserts that the trial court erred in submitting a single jury charge on punishment. Rather than separate the two offenses that made up the criminal episode (arson of a habitation and a vehicle), the charge instructed the jury that they should assess punishment for the offense of arson as charged in the indictment. The various forms for the verdict allowed for a finding of only one punishment for the entire episode.

Tex.Penal Code Ann. § 3.02 (Vernon 1974) provides that a defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Joinder of offenses arising out of such a criminal episode, alleging each in a separate count of the indictment, is authorized by Tex.Code Crim.Proc.Ann. art. 21.24(a) (Vernon Supp.1989). The sentences are to run concurrently. The purpose of these statutes is to promote convenience and efficiency, permitting a single trial on the joint counts, and treating the separate offenses as one for punishment purposes. The benefit to the defendant is concurrent sentencing on the multiple offenses. Haliburton v. State, 578 S.W.2d 726, 729 (Tex.Crim.App. [Panel Op.] 1979); Tex.Code Crim.Proc.Ann. art. 37.07, § (2)(c) (Vernon 1981). However, Article 37.07, § 2(c) and Tex.Penal Code Ann. § 3.03 (Vernon 1974) mandate that when the ac[847]*847cused is found guilty of more than one offense arising out of a criminal episode, punishment shall be assessed on each count, and sentence for each offense for which he has been found guilty shall be pronounced. Submitting only one verdict for punishment was erroneous.

Our review of the error in the charge is governed by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984), and Tex.Code Crim.Proc.Ann. art. 36.19 (Vernon 1981). Cline did not object to the charge as given; thus, we must reverse only if egregious harm resulted.

We conclude that egregious harm did result. Although Cline has produced no direct evidence of harm, the fact that the jury assessed only one punishment for the two offenses indicates that Cline was deprived of the right to have the punishments run concurrently. It is possible that the jury combined two thirty-five year punishments into the one verdict. If they intended to assess thirty-five years on each count, Cline would only be required to serve thirty-five years, in any event, with the sentences running concurrently; whereas, with one sentence of seventy years the maximum time he could be required to serve is seventy years. We therefore will remand this portion of the case to the district court for a new trial on punishment. Tex.Code Crim.Proc.Ann. art. 44.29(b) (Vernon Supp.1989).

Cline further contends that the failure of the court to provide him a statement of facts from his previous trial for this offense was reversible error. The record does not show that a ruling was made on Cline’s motion in this regard. Any error has been waived by the failure to obtain a ruling. Hanner v. State, 572 S.W.2d 702 (Tex.Crim.App.1978); Tasby v. State, 679 S.W.2d 78 (Tex.App.—Texarkana 1984, no pet.). Additionally, Cline has not shown that he was harmed. The record shows that the previous testimony complained about was available to Cline and was used by his counsel in examining the witnesses at the instant trial. Ex parte Ramirez, 577 S.W.2d 261, 264 (Tex.Crim.App. [Panel Op.] 1979); James v. State, 546 S.W.2d 306, 312 (Tex.Crim.App.1977).

Cline next argues that the court erred in “changing the indictment” between the time of voir dire of the jury and the trial. Cline had been indicted for arson of a habitation in Cause No. 16,092-A. He was also indicted in Cause No.

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Bluebook (online)
770 S.W.2d 844, 1989 Tex. App. LEXIS 912, 1989 WL 36887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cline-v-state-texapp-1989.