Johnson v. State

653 S.W.2d 324, 1983 Tex. App. LEXIS 4384
Court of Appeals of Texas·Decided April 29, 1983·No. No. 04-81-00050-CR·Published·Cited by 8 cases

Opinion

OPINION

DIAL, Justice.

This ease involves two joint appeals for burglary convictions. Appellant, Robert Darrell Stapp, received a twelve-year sentence, and appellant, Thomas Carl Johnson, was assessed a life sentence as a habitual.

The appellants were each indicted for burglary. The morning their trial was to begin, before jury voir dire, their jointly retained counsel advised the court,

Your Honor, I’ve had a problem arise this morning. After conferring with my clients I’ve discovered that they have asked me to do a number of things that I do not feel ethical that I can do. I have informed them that I will not follow their instructions and they have fired me as their attorney. However, they have stated that they wish to proceed pro se. I would state for the record that since I have participated in the case and prepared it for trial, I will be willing to sit with the defendants to protect their procedural rights, if that is acceptable with the Court and the State’s attorney.

The trial judge then verified with appellant Stapp that he had discharged his attorney [326]*326and wished to proceed pro se. The court explained the range of punishment to the appellant, and then cautioned him that there were certain rights that a non-lawyer would be unable to accomplish without some assistance. He further inquired as to the appellant’s understanding of cross-examination of witnesses and jury selection. On at least five occasions, appellant Stapp assured the court that he understood the matters about which the judge was speaking. Though appellant Johnson had been present during the discussion with Stapp, the court directed additional questions to him, emphasizing that Johnson was facing the possibility of a life sentence. To the question as to whether or not he desired to proceed without counsel, appellant Johnson answered in the affirmative. The court then advised both appellants that he would require their previous attorney to be present to consult with them and to conduct the jury voir dire. The appellants were further advised that no evidence would be received by the court until the following day, and if either of them wished to contact or retain other counsel they would be given the opportunity to do so. Both appellants were free on bond at the time. There then followed the voir dire examination of the jury panel during which Mr. Hargrove, the previously retained attorney, conducted the questioning on the appellants’ behalf.

The following morning, before any evidence was received, the court made the following inquiry of the appellants:

THE COURT: ... First of all, Mr. Stapp, yesterday I advised you that you had some extra time to obtain additional counsel if you so desired. Have you obtained additional counsel?
MR. STAPP: No, sir.
THE COURT: Is it you desire to proceed without counsel, with Mr. Hargrove acting in an advisory capacity?
MR. STAPP: Yes, sir.
THE COURT: Mr. Johnson, I want to ask you the same question. Have you obtained additional counsel?
MR. JOHNSON: No, sir.
THE COURT: Is it your desire still to proceed without counsel, with Mr. Har-grove acting in an advisory capacity?
MR. JOHNSON: Yes, sir.
THE COURT: All right. Mr. Stapp and Mr. Johnson, the State has pointed out, but first of all, I understand that Mr. Hargrove was retained counsel and that both of you are out on bond. However, should you not have funds with which to retain counsel and can show that you are not sufficiently able to retain counsel financially, that you have the right to have counsel appointed to represent you. Do you understand this, Mr. Stapp?
MR. STAPP: Yes, sir.
THE COURT: Mr. Johnson?
MR. JOHNSON: Yes, sir.
THE COURT: I assume, since you were able to retain Mr. Hargrove and that you are out on bond, that you are able to retain counsel but chose to proceed without counsel. Is that correct?
MR. JOHNSON: Yes, sir.
MR. STAPP: Yes, sir.
* * * * * *
THE COURT:' I think this is the order. We may change it, but I think the order in which we will proceed, is that during the State’s case I will allow Mr. Sutton to call his witness and question his witness. I will accept objections both from Mr. Hargrove and from either defendant. In other words, either one of you may object to anything during the proceedings, rather than requiring the one person to make objections. Then when on cross-examination, let me suggest to the defendants, and you may do it otherwise. Let me suggest to the defendants that you allow Mr. Hargrove to do the cross-examination of the State witnesses, and if you have any additional questions you will be allowed to ask them, but handle your defense in any manner you see fit.
[327]*327MR. JOHNSON: If we have other questions can we ask him? (Referring to Mr. Hargrove.)
THE COURT: Yes. You may be as liberal in asking questions as you need. You are not a lawyer and you are not prepared to understand the procedure.

MR. JOHNSON: Well, we are close to it. During the trial that followed Johnson made an opening statement, he questioned the defense witnesses, and gave a jury argument at the end of the guilt phase of the trial. Stapp testified on both the guilt and punishment phases but declined to make an opening statement or give jury argument, even though he was given the opportunity to do so. Attorney Hargrove cross-examined the State’s witnesses, made various objections throughout the trial, requested that the jury be polled after returning the findings of guilty, and argued for the defense on punishment. The record does not reflect what private consultations may have taken place between attorney Hargrove and the two appellants during the trial.

Appellants have filed very similar briefs containing identical grounds of error. Each contends that the trial court inadequately questioned and warned the appellants about their Sixth Amendment right to an attorney. The appellants rely on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). That case involved a criminal defendant who requested that he be permitted to represent himself. The trial judge conducted a hearing on the defendant’s ability to conduct his own defense and questioned him specifically about various rules of law.

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Johnson v. State, 653 S.W.2d 324, 1983 Tex. App. LEXIS 4384 (Tex. Ct. App. 1983).

653 S.W.2d 324 (Johnson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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