ACCEPTED CASE NUMBER 13-15-00045-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 11/17/2015 4:02:01 PM 13-15-00445-CR Dorian E. Ramirez CLERK
CAUSES 13-15-00045-CR & 13-15-00046-CR smata IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CASE NUMBER CORPUS CHRISTI, TEXAS 11/17/2015 4:02:01 PM DORIAN E. RAMIREZ 13-15-00446-CR Clerk
smata HILBERTO MARTINEZ, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
Trial Causes 15-1-9390 & 15-1-9391
Jackson County District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
ORAL ARGUMENT NOT REQUESTED 1 IDENTITY OF PARTIES AND COUNSEL
Appellant was represented at trial by J. E. “Zeke” Ramos, Attorney at Law, POB 271931, Corpus Christi, Texas 78427. Appellant is represented on appeal by Bill White, Attorney at Law, POB 7422, Victoria, TX 77903. During trial, appellant was a resident of Jackson County, Texas. Appellant is currently incarcerated in IDTDCJ.
The State was represented at trial by Robert Bell, D.A. and Pam Guenther, A.D.A., both of the Jackson County District Attorney’s Office, located at 115 W. Main Street, 2nd Flr, Edna, TX 77957. The State’s reply brief will be handled by Jim Vollers, 2201 Westover Road, Austin, TX 78703.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case and Statement of Facts 5
Issue Presented 8
THE TRIAL COURT ERRED BY FAILING TO PROPERLY ADDRESS APPELLANT’S REQUEST FOR SELF-REPRESENTATION
Summary of Argument 9
Argument 9
Prayer 13
Certificate of Service 14
Certificate of Compliance 14
3 INDEX OF AUTHORITIES
Cases Page
Adams v. United States, 317 U.S. 269 (1942) 10,11
Collier v. State, 959 S.W.2d 621(Tex.Crim.App.1997)9,10
Faretta v. California, 422 U.S. 806 (1975) 10,11
Ford v. State, 73 S.W.3d 923 (Tex.Crim.App.2002) 11
Miles v. State, 204 S.W.2d 822 (Tex.Crim.App.2006) 11
Williams v. State, 252 S.W.3d 353(Tex.Crim.App.2008) 10,11
4 CAUSES 13-15-00045-CR & 13-15-00046-CR Trial Causes 15-1-9390 & 15-1-9391
HILBERTO MARTINEZ, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS, Appellee CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, HILBERTO MARTINEZ, through
counsel, W. A. (BILL) WHITE, Attorney at Law, showing:
STATEMENT OF THE CASE AND STATEMENT OF FACTS
Appellant was charged in January 2015 by two
indictments, each for burglary of a habitation. One
indictment alleged an offense on 11/23/14 and the other
an offense on 12/01/14. Both indictments alleged Cody
Parker as the victim. Each alleged two previous felony
convictions, both pleas being entered on the same date,
making the alleged offenses, normally second degree
felonies, into first degree felonies with punishment
5 ranges of 5 to 99 years or life in prison and up to a
$10,000 fine.
Jury selection began on 8/24/15, with trial on the
merits immediately following. After the jury had been
selected and merits began, appellant and his attorney
raised the issue of appellant representing himself at
trial, well into the guilt phase. Appellant vacillated
between just cross-examining some witnesses himself and
representing himself alone, without legal counsel.(RR
Vol. 4, p. 150, lines 7-11)
The State’s prosecutor quickly and correctly argued
that appellant had no right to hybrid representation,
where appellant and his lawyer work together as co-
counsel at trial.(RR Vol. 4, p. 150, lines 12-14)
The trial judge then changed the subject to another
issue that the parties had been arguing about, not
related to any issue of self-representation.(RR Vol. 4,
p. 150, line 15 through p. 151, line 16). Appellant’s
trial counsel then redirected the conversation back to
his client’s desire for self-representation, adding
6 however that, at this late point in the trial, it might
be “too late to do that”.(RR Vol. 4, p. 151, lines 17-
20)
The trial judge immediately agreed, stating, “I
think it’s too late to do that, yes, we’re in the
middle of a jury trial.”(RR Vol. 4, p. 151, lines 21-
22). Appellant then drifted back to a desire for
hybrid representation, although not by name.(RR Vol. 4,
p. 151, line 23 through p. 152, line 2)
Appellant then referenced a motion to withdraw
overruled at a pretrial hearing during the previous
week, reminding the court that he had stated at same
that he was “willing to --- and ready to testify myself
and to represent myself”.(RR Vol. 4, p. 152, lines 3-
7). Appellant went on to refer to this motion to
withdraw as “my motion”, indicating that it may have
been a pro se motion filed by him to remove his trial
counsel. Appellant explained that his lawyer wanted
more time to prepare for trial in light of “evidence
that Mr. Bell had just gave him” (possibly discovery),
7 but that he as the accused wanted no more delays in
reaching trial.(RR Vol. 4, p. 152, lines 8-21)
The trial judge then referenced his earlier denial
of the motion to withdraw during the previous week and
said, “So we’ll just need to move forward.”(RR Vol. 4,
p. 152, lines 22-23). Appellant then asked again for
hybrid representation, but was told this would not be
allowed by the trial judge.(RR Vol. 4, p. 152, line 24
through p. 153, line 2)
Appellant was convicted as charged on 8/27/15 in
both indictments. At the punishment phase, appellant
pled true to both enhancements. After evidence was
presented, the jury assessed punishment in each cause
on 8/27/15 at 99 years in prison, plus fines of
$10,000. The sentences ran concurrently.
ISSUE PRESENTED
THE TRIAL COURT ERRED BY FAILING TO PROPERLY ADDRESS APPELLANT’S REQUEST FOR SELF-REPRESENTATION
8 SUMMARY OF ARGUMENT
Appellant, after trial began, asserted his
constitutional right of self-representation to the
trial judge. This assertion was not addressed by the
trial court as required by law. As a result, appellant
was denied his right to self-representation. The trial
court did not properly admonish appellant on the
dangers and disadvantages of self-representation to
allow him to further make a knowing and intelligent
decision as to this federal constitutional right.
ARGUMENT
The decision to waive counsel, to be
constitutionally effective, must be made (1)
competently, (2) knowingly and intelligently, and (3)
voluntarily. The decision to … proceed pro se is made
“knowingly and intelligently” if it is made with a full
understanding of the right to counsel, which is being
abandoned, as well as the dangers and disadvantages of
9 self-representation. Collier v. State, 959 S.W.2d 621,
625-626 (Tex.Crim.App. 1997).
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED CASE NUMBER 13-15-00045-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 11/17/2015 4:02:01 PM 13-15-00445-CR Dorian E. Ramirez CLERK
CAUSES 13-15-00045-CR & 13-15-00046-CR smata IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CASE NUMBER CORPUS CHRISTI, TEXAS 11/17/2015 4:02:01 PM DORIAN E. RAMIREZ 13-15-00446-CR Clerk
smata HILBERTO MARTINEZ, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
Trial Causes 15-1-9390 & 15-1-9391
Jackson County District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
ORAL ARGUMENT NOT REQUESTED 1 IDENTITY OF PARTIES AND COUNSEL
Appellant was represented at trial by J. E. “Zeke” Ramos, Attorney at Law, POB 271931, Corpus Christi, Texas 78427. Appellant is represented on appeal by Bill White, Attorney at Law, POB 7422, Victoria, TX 77903. During trial, appellant was a resident of Jackson County, Texas. Appellant is currently incarcerated in IDTDCJ.
The State was represented at trial by Robert Bell, D.A. and Pam Guenther, A.D.A., both of the Jackson County District Attorney’s Office, located at 115 W. Main Street, 2nd Flr, Edna, TX 77957. The State’s reply brief will be handled by Jim Vollers, 2201 Westover Road, Austin, TX 78703.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case and Statement of Facts 5
Issue Presented 8
THE TRIAL COURT ERRED BY FAILING TO PROPERLY ADDRESS APPELLANT’S REQUEST FOR SELF-REPRESENTATION
Summary of Argument 9
Argument 9
Prayer 13
Certificate of Service 14
Certificate of Compliance 14
3 INDEX OF AUTHORITIES
Cases Page
Adams v. United States, 317 U.S. 269 (1942) 10,11
Collier v. State, 959 S.W.2d 621(Tex.Crim.App.1997)9,10
Faretta v. California, 422 U.S. 806 (1975) 10,11
Ford v. State, 73 S.W.3d 923 (Tex.Crim.App.2002) 11
Miles v. State, 204 S.W.2d 822 (Tex.Crim.App.2006) 11
Williams v. State, 252 S.W.3d 353(Tex.Crim.App.2008) 10,11
4 CAUSES 13-15-00045-CR & 13-15-00046-CR Trial Causes 15-1-9390 & 15-1-9391
HILBERTO MARTINEZ, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS, Appellee CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, HILBERTO MARTINEZ, through
counsel, W. A. (BILL) WHITE, Attorney at Law, showing:
STATEMENT OF THE CASE AND STATEMENT OF FACTS
Appellant was charged in January 2015 by two
indictments, each for burglary of a habitation. One
indictment alleged an offense on 11/23/14 and the other
an offense on 12/01/14. Both indictments alleged Cody
Parker as the victim. Each alleged two previous felony
convictions, both pleas being entered on the same date,
making the alleged offenses, normally second degree
felonies, into first degree felonies with punishment
5 ranges of 5 to 99 years or life in prison and up to a
$10,000 fine.
Jury selection began on 8/24/15, with trial on the
merits immediately following. After the jury had been
selected and merits began, appellant and his attorney
raised the issue of appellant representing himself at
trial, well into the guilt phase. Appellant vacillated
between just cross-examining some witnesses himself and
representing himself alone, without legal counsel.(RR
Vol. 4, p. 150, lines 7-11)
The State’s prosecutor quickly and correctly argued
that appellant had no right to hybrid representation,
where appellant and his lawyer work together as co-
counsel at trial.(RR Vol. 4, p. 150, lines 12-14)
The trial judge then changed the subject to another
issue that the parties had been arguing about, not
related to any issue of self-representation.(RR Vol. 4,
p. 150, line 15 through p. 151, line 16). Appellant’s
trial counsel then redirected the conversation back to
his client’s desire for self-representation, adding
6 however that, at this late point in the trial, it might
be “too late to do that”.(RR Vol. 4, p. 151, lines 17-
20)
The trial judge immediately agreed, stating, “I
think it’s too late to do that, yes, we’re in the
middle of a jury trial.”(RR Vol. 4, p. 151, lines 21-
22). Appellant then drifted back to a desire for
hybrid representation, although not by name.(RR Vol. 4,
p. 151, line 23 through p. 152, line 2)
Appellant then referenced a motion to withdraw
overruled at a pretrial hearing during the previous
week, reminding the court that he had stated at same
that he was “willing to --- and ready to testify myself
and to represent myself”.(RR Vol. 4, p. 152, lines 3-
7). Appellant went on to refer to this motion to
withdraw as “my motion”, indicating that it may have
been a pro se motion filed by him to remove his trial
counsel. Appellant explained that his lawyer wanted
more time to prepare for trial in light of “evidence
that Mr. Bell had just gave him” (possibly discovery),
7 but that he as the accused wanted no more delays in
reaching trial.(RR Vol. 4, p. 152, lines 8-21)
The trial judge then referenced his earlier denial
of the motion to withdraw during the previous week and
said, “So we’ll just need to move forward.”(RR Vol. 4,
p. 152, lines 22-23). Appellant then asked again for
hybrid representation, but was told this would not be
allowed by the trial judge.(RR Vol. 4, p. 152, line 24
through p. 153, line 2)
Appellant was convicted as charged on 8/27/15 in
both indictments. At the punishment phase, appellant
pled true to both enhancements. After evidence was
presented, the jury assessed punishment in each cause
on 8/27/15 at 99 years in prison, plus fines of
$10,000. The sentences ran concurrently.
ISSUE PRESENTED
THE TRIAL COURT ERRED BY FAILING TO PROPERLY ADDRESS APPELLANT’S REQUEST FOR SELF-REPRESENTATION
8 SUMMARY OF ARGUMENT
Appellant, after trial began, asserted his
constitutional right of self-representation to the
trial judge. This assertion was not addressed by the
trial court as required by law. As a result, appellant
was denied his right to self-representation. The trial
court did not properly admonish appellant on the
dangers and disadvantages of self-representation to
allow him to further make a knowing and intelligent
decision as to this federal constitutional right.
ARGUMENT
The decision to waive counsel, to be
constitutionally effective, must be made (1)
competently, (2) knowingly and intelligently, and (3)
voluntarily. The decision to … proceed pro se is made
“knowingly and intelligently” if it is made with a full
understanding of the right to counsel, which is being
abandoned, as well as the dangers and disadvantages of
9 self-representation. Collier v. State, 959 S.W.2d 621,
625-626 (Tex.Crim.App. 1997).
The Constitution does not force a lawyer upon a
defendant. Adams v. United States, 317 U.S. 269, 279
(1942). The Sixth Amendment right to counsel implies
also a “correlative right to dispense with a lawyer’s
help.” Id. The right of self-representation finds
support in the structure of the Sixth Amendment, as
well as the English and colonial jurisprudence from
which the Amendment emerged. Faretta v. California, 422
U.S. 806, 818 (1975).
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 at 279. Once the
issue of self-representation is raised, a trial judge
has an absolute duty to determine whether any waiver of
10 the right is knowing, intelligent, and voluntary.
Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App.
2008). Once asserted, the trial court must conduct a
Faretta hearing and admonish the defendant to “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 at 835 [quoting Adams v. United States, 317
U.S. 269, 279 (1942)].
Texas jurisprudence holds that constitutional
errors are only immune to harmless error analysis if
classified as structural defects by the United States
Supreme Court. Ford v. State, 73 S.W.3d 923, 925 n. 4
(Tex.Crim.App. 2002). The Court of Criminal Appeals
has recognized that violations of a defendant’s right
to self-representation are immune from harmless error
because of their classification as structural defects.
See Miles v. State, 204 S.W.2d 822, 827 (Tex.Crim.App.
2006).
11 The State in the case at bar cannot credibly argue
that appellant asked during his guilt phase to defend
himself to foster delay or slow the proceedings against
him because, as noted earlier, he asked to have his
hired counsel removed only a week before because he
wanted no more delays. Only his trial lawyer wanted
more time. The State cannot ask this Honorable Court
to assume that appellant wanted to represent himself in
order to generate courtroom antics which might derail
his trial, without evidence in the record of same.
When appellant was refused his request to represent
himself or question some witnesses personally, he
answered the judge with, “All right” and behaved
thereafter.(RR Vol. 4, p. 153)
The trial judge in this cause should have taken the
time to review with appellant the inherent dangers and
disadvantages of self-representation, then asked
appellant if he still wished to defend himself without
legal counsel. This would have also served to clarify
appellant’s confusion on the difference between self-
12 representation and hybrid representation. However,
after first trying to ignore the subject and move to
another issue, the trial court merely repeated its
stale ruling from one week prior and stated, “So we’ll
just need to move forward.”(RR Vol. 4, p. 152)
The trial judge should have inquired further,
outside the jury’s presence, whether conflicts of any
kind had arisen between appellant and his trial counsel
which might have affected counsel’s exercise of a
vigorous defense or his effectiveness as counsel in
general.
PRAYER
Appellant prays that these convictions be reversed.
Respectfully submitted,
/s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELLANT POB 7422, Vict., TX 77903 (361) 575-1774 voice/fax TBN 00788659
13 CERTIFICATE OF SERVICE
I certify that a true and correct copy or duplicate
original of the foregoing has been provided to Robert
Bell, Jackson County District Attorney’s Office, 115 W.
Main St., 2nd Flr, Edna, TX 77957 via U.S. mail, fax,
electronic delivery, or hand-delivery on this the 17th
day of November 2015.
/s/ W. A. White W. A. White
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 1,665 words.