Marcus Jamez Lewis v. State

Opinion

ACCEPTED 14-14-00779-cr FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 8/5/2015 10:06:13 AM CHRISTOPHER PRINE CLERK

No. 14-14-00779-CR FILED IN 14th COURT OF APPEALS In the HOUSTON, TEXAS Court of Appeals 8/5/2015 10:06:13 AM For the CHRISTOPHER A. PRINE Clerk Fourteenth District of Texas At Houston ♦ No. 1398109 In the 182nd District Court Of Harris County, Texas ♦ MARCUS JAMEZ LEWIS Appellant v. THE STATE OF TEXAS Appellee ♦ State’s Appellate Brief ♦

Devon Anderson Clinton A. Morgan District Attorney Assistant District Attorney Harris County, Texas Harris County, Texas State Bar No. 24071454 Celeste Byrom morgan_clinton@dao.hctx.net Assistant District Attorney Harris County, Texas 1201 Franklin St., Suite 600 Houston, Texas 77002 Telephone: 713.755.5826

Oral Argument Requested Regarding Appellant’s First Point Statement Regarding Oral Argument

The State believes that the issues surrounding the appellant’s first

point of error are interesting enough, and this Court’s possible holdings

various enough, that oral argument would aid this Court’s decision-

making process. Accordingly, the State requests oral argument, though

only on the appellant’s first point.

i Identification of the Parties

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Marisa Dunagan & Celeste Byrom — Assistant District Attorneys at trial

Clinton A. Morgan  Assistant District Attorney on appeal

Appellant:

Marcus Jamez Lewis

Counsel for the Appellant:

Ted Doebbler — Counsel at trial

Alexander Bunin & Jani Maselli Wood — Counsel on appeal

Trial Judges:

James Anderson  Presiding judge

ii Table of Contents

Statement Regarding Oral Argument ................................................. i Identification of the Parties .............................................................. ii Table of Contents ................................................................................ iii Index of Authorities ........................................................................... vi Statement of the Case .......................................................................... 1 Introductory Note ................................................................................. 1 Statement of Facts ................................................................................ 2 Summary of the Argument .................................................................. 4 Reply to Point One ................................................................................ 6 Because of the appellant’s bizarre pre-trial filings and disruptive courtroom behavior, the trial court did not abuse its discretion in denying his efforts at self-representation.......................................................... 6 I. Factual Background: The appellant’s pseudolegal filings and uncooperative behavior forced the trial court to remove him from the courtroom. .......................................................................................................... 6 A. The appellant’s pre-trial filings ............................................................ 6 B. The Faretta hearing................................................................................... 7 II. Legal Background: The right to self-representation can be denied if a defendant is disruptive or is not competent to represent himself. ...................................................................................................................... 15 A. The right and its limits .......................................................................... 15 B. Standard of review ................................................................................. 20 III. Argument: This Court could affirm the trial court’s ruling either on the basis that the appellant did not understand the proceedings well enough to represent himself or on the basis that the appellant was using his right to self-representation to obstruct trial proceedings. This Court should affirm on the second basis. .............. 21 A. Evidence that the appellant did not understand the proceedings ........................................................................................................ 22

iii B. Evidence that the appellant was attempting to use his right to self-representation to obstruct the proceedings ................................ 24 Reply to Point Two ............................................................................ 25 The appellant’s use of sovereign-citizen tactics does not raise a bona fide doubt about his mental competence to stand trial. ........................... 25 I. Legal Background: Absent a request from a party, a trial court’s decision not to hold a competency inquiry is an abuse of discretion only if, as a matter of law, the evidence created a “bona fide doubt” regarding a defendant’s competence to stand trial. ............................... 26 II. Argument: The only evidence of incompetence the appellant points to are his sovereign-citizen tactics, but those are evidence of obstinateness, not incompetence. ................................................................. 28 Reply to Point Three ......................................................................... 31 The appellant’s point is based on a factual mistake. On the date the appellant was stopped, the offense of improper display of a license plate was punishable by a fine of between $5 and $200, thus counsel was not ineffective for failing to file a motion to suppress based on the fact that improper display of a license plate was not a criminal offense.31 Reply to Point Four ........................................................................... 33 The trial court did not err in refusing to hold a hearing on the appellant’s motion for new trial. The motion alleged that counsel was ineffective for failure to investigate the case and call witnesses, but the only uncalled witness mentioned in the motion was the appellant’s mother, and her affidavit that she would say “good things” about the appellant was conclusory....................................................................................... 33 Reply to Point Five ............................................................................ 36 The question of fact that the appellant points out in his brief was not material to the determination of probable cause to search the appellant’s car, thus the trial court did not err in refusing to give the jury a 38.23 instruction. ......................................................................................... 36 I. This argument was not presented to the trial court ..................... 37 II. The minor discrepancy in the testimony was immaterial to the legality of the appellant’s detention or the search of the car. ............ 38

iv Conclusion .......................................................................................... 40 Certificate of Compliance and Service ........................................... 41

v Index of Authorities

Cases Alford v. State 367 S.W.3d 855 (Tex. App.— Houston [14th Dist.] 2012, pet. ref’d) .............................................................. 21 Almanza v. State 686 S.W.2d 157 (Tex. Crim. App. 1985) ........................................................... 37 Birdwell v. State 10 S.W.3d 74 (Tex. App.— Houston [14th Dist.] 1999, pet. ref’d) .............................................................. 17 Buerger v. State 60 S.W.3d 358 (Tex. App.— Houston [14th Dist.] 2001, pet. ref’d) ....................................................... 34, 35 Chadwick v. State 309 S.W.3d 558 (Tex. Crim. App. 2010) ............................................ 20, 23, 30 Collier v. State 959 S.W.2d 621 (Tex. Crim. App. 1997) ........................................................... 27 Colon v. State 717 S.W.2d 474 (Tex. App.— San Antonio 1986, no pet.) .................................................................................... 17 Cunningham v. State 11 S.W.3d 436 (Tex. App.— Houston [14th Dist.] 2000, no pet.)................................................................... 39 Ex parte Winton 837 S.W.2d 134 (Tex. Crim. App. 1992) ........................................................... 17 Faretta v. California 422 U.S. 806, 807 (1975) ....................................................................................... 15 Godinez v. Moran 509 U.S. 389 (1993) ................................................................................................. 16 Goffney v. State 843 S.W.2d 583 (Tex. Crim. App. 1992) ........................................................... 16

vi Hummel v. Com. 306 S.W.3d 48 (Ky. 2010) ....................................................................................... 18 Indiana v. Edwards 554 U.S. 164 (2008) .................................................................................. 16, 17, 30 Johnson v. State 429 S.W.3d 13 (Tex. App.— Houston [14th Dist.] 2013, no pet.)................................................................... 27 Johnson v. State 760 S.W.2d 277 (Tex. Crim. App. 1988) ........................................................... 16 Jordan v. State 883 S.W.2d 664 (Tex. Crim. App. 1994) .................................................... 33, 34 Madden v. State 242 S.W.3d 504 (Tex. Crim. App. 2007) .................................................... 37, 38 Meads v. Meads 2012 ABQB 571 (CanLII) available at http://canlii.ca/t/fsvjq ......................................................... passim Moore v. State 999 S.W.2d 385 (Tex. Crim. App. 1999) ........................................................... 28 Salahud-din v. State 206 S.W.3d 203, 207 (Tex. App.— Corpus Christi 2006, pet. ref’d) .......................................................................... 27 Smith v. State 286 S.W.3d 333 (Tex. Crim. App. 2009). ................................................... 33, 34 Strickland v. Washington 466 U.S. 668 (1984) ................................................................................................. 34 United States v. Brock 159 F.3d 1077 (7th Cir. 1998) .............................................................................. 18 United States v. Brunson 482 Fed. Appx. 811 (4th Cir. 2012) .................................................................... 18 United States v. Long 597 F.3d 720 (5th Cir. 2010)................................................................................. 18 United States v. Mosley 607 F.3d 555 (8th Cir. 2010).................................................................. 18, 19, 25

vii Washington v. State 417 S.W.3d 713 (Tex. App.— Houston [14th Dist.] 2013, pet. ref’d) .............................................................. 35

Statutes TEX. CODE CRIM. PROC. art. 46B.003 ........................................................................... 26 TEX. CODE CRIM. PROC. art. 46B.004 .................................................................... 26, 27 TEX. TRANSP. CODE § 504.943....................................................................................... 32 TEX. TRANSP. CODE § 504.948 (West Supp. 2014) ............................................... 32

Other Authorities Act of June 14, 2013, 83rd Leg. R.S., ch. 1135 2013 Tex. Sess. Law Serv. 2708 ........................................................................... 32 CRACKING THE CODE (3rd ed. 2002)........................................................................... 29

viii Statement of the Case

The appellant was indicted for possession of between 1 and 4

grams of cocaine. (CR 13). The indictment alleged two prior felony

convictions, with one of the felonies having been committed after the

conviction for the other became final. (CR 13). A jury found him guilty as

charged. (CR 121, 124). The appellant pled “not true” to both

enhancement paragraphs, but the trial court found them true and

assessed punishment at 45 years’ confinement. (CR 124). The trial court

certified the appellant’s right of appeal, and the appellant filed a timely

notice of appeal. (CR 124, 129).

Introductory Note

This is a very simple case made complex only by the appellant’s

use of sovereign-citizen tactics at trial. If this Court is confused by the

appellant’s bizarre pre-trial filings1 or courtroom discourse,2 the State’s

1 E.g., CR 40-45, which is titled “Affidavit of Marcus Jamez Lewis©, by Special Visitation.” In this document the appellant states that he “owns the name Marcus Jamez Lewis© and the trade-name MARCUS JAMEZ LEWIS©.” He then lists several people and entities (defense counsel, the foreman of the grand jury, an assistant district attorney, Harris County, the state of Texas) and specifies that he “neither granted [the people and entities] permission for using nor authorized … use of the name MARCUS JAMEZ LEWIS© also known by any and all derivatives and variations in the spelling of said name except ‘Marcus Jamez Lewis’, at any time without consideration for the use of said name.” 1 appellate counsel recommends as a resource a Canadian case, Meads v.

Meads, 2012 ABQB 571 (CanLII), available at http://canlii.ca/t/fsvjq

(last viewed on August 5, 2015), which appears to be the best

researched and most authoritative resource on these sorts of disruptive

trial tactics. Comparing the appellant’s actions at trial with the

discussion in Meads makes clear that the appellant was not attempting

to engage with the trial court but was instead seeking to undermine its

authority and thwart any effort at an orderly trial.

Statement of Facts

Houston Police Officers Krisopher Solis and Juan Diaz were on

patrol when they observed a Chevy Impala with improperly displayed

license plates. (3 RR 20). The front license plate was inside the car on

the dashboard and the rear license plate was taped to the inside of the

rear window. (3 RR 20, 70). The officers initiated a traffic stop. (3 RR

20).

As the Impala slowed down, the officers observed the driver and

passenger engaged in furtive movements toward the center console and

2E.g., 2 RR 7 (appellant: “I'm not representing myself. I'm representing myself as Paramount Security Interest Holder of all property collateral belonging to the defendant. I am the agent for Marcus Jamez Lewis.”). 2 the door panels. (3 RR 21-22, 73). When the Impala stopped and the

officers approached, Solis observed a rock of crack cocaine sitting on the

passenger’s lap. (3 RR 25). Solis asked him to step out of the car. (3 RR

26).

At that point Diaz asked the driver, the appellant, for his

identification, but the appellant had no identification on him. (3 RR 74-

75). The appellant became argumentative, so Diaz asked him to step out

of the car. (3 RR 75). The appellant did not comply but instead made a

furtive movement toward the center console, as if to hide something. (3

RR 75-76). Solis drew his TASER and ordered the appellant out of the

car; the appellant complied. (3 RR 76).

After the appellant stepped out, Solis showed Diaz the rock of

cocaine he had found on the passenger. (3 RR 78). Based on the drugs

they had already found and the appellant’s apparent attempt to hide

something, Diaz began a search of the car for additional drugs. (3 RR

81). Diaz observed a pack of Newport cigarettes in the panel

compartment of the driver’s door. (3 RR 81). Diaz knew that cigarette

boxes were common hiding places for narcotics. (3 RR 81-82). Diaz

checked the box and discovered ten baggies of powder cocaine. (3 RR

81-82). A subsequent search of the vehicle revealed a CD case that 3 contained a 9mm handgun. (3 RR 47, 89). In the truck, police found a

fireproof safe that contained the appellant’s driver license. (3 RR 51, 89-

90).

Summary of the Argument

The appellant raises five points of error. In his first point of error,

the appellant complains that the trial court erred in not letting him

represent himself at trial. However, the appellant’s pre-trial filings and

courtroom behavior show that either he did not understand the

proceedings well enough to represent himself or else he was engaged in

an intentional effort to disrupt the trial. In either of those circumstances,

the trial court was correct to deny his efforts at self-representation.

In his second point, the appellant claims that his sovereign-citizen

tactics were a sign that he was incompetent to stand trial and the trial

court erred by not having an inquiry on the matter. The State does not

believe that the disruptive trial tactics used in this case are indicative of

incompetence, but are instead signs of obstinateness that do not require

a competence inquiry.

In his third point, the appellant claims that his trial counsel was

ineffective for not filing a motion to suppress. However, the appellant’s

4 belief that a motion to suppress would have been meritorious is based

on a factual misunderstanding of the law.

In his fourth point, the appellant complains about the trial court’s

refusal to hold a hearing on his motion to for new trial. However, the

only evidence supporting the appellant’s motion was an affidavit from

his mother stating that if she had been called as a witness she would

have said “good things” about the appellant. This conclusory affidavit

was an insufficient basis to require the trial court to hold a hearing on

the appellant’s motion.

In his fifth point, the appellant claims that the trial court erred in

not instructing the jury regarding illegally obtained evidence. However,

the conflict in the testimony that the appellant points to as creating a

question of fact was immaterial to the legality of the search that

uncovered his drugs, thus the trial court was not required to instruct the

jury as the appellant claims.

5 Reply to Point One

Because of the appellant’s bizarre pre-trial filings and disruptive courtroom behavior, the trial court did not abuse its discretion in denying his efforts at self-representation.

I. Factual Background: The appellant’s pseudolegal filings and uncooperative behavior forced the trial court to remove him from the courtroom.

A. The appellant’s pre-trial filings

In June 2014, three months before his trial, the appellant filed a

document labeled “Motion to Dismiss Court Appointed Attorney; Waiver

of the Right to Counsel; Right to Proceed Pro Se.” (CR 47-50). In this

document, the appellant asserted that, after ten months of

representation, he had lost faith in his court-appointed attorney and

wished to represent himself. (CR 47-59). There is no written order on

this document, nor does there appear to have been any on-the-record

hearing, but a month later the appellant filed a request for additional

time in the jail’s law library; the request stated that the appellant was

representing himself pro se. (CR 66).

In August 2014, a month before his trial, the appellant filed a

series of documents and affidavits that, taken together, show that for

several months the appellant had been sending letters to a prosecutor.

(See CR 71-100). These documents use the sort of pseudolegal 6 “commercial law” language used by sovereign-citizen litigants. (See, e.g.

CR 90 (“Failure of Respondents to prove their claims or charges against

the Undersigned within ten (10) days (or in the alternative cease all

collection or enforcement actions against the Undersigned) shall

constitute deliberate criminal actions and willful breach of & default of a

bilateral contract (Affidavit of Agreement) formed knowingly,

intentionally, and voluntarily & between the Undersigned and the

Respondents.”)); see also Meads, 2012 ABQB 571 at para 487-91

(“[Sovereign citizen] litigants will often claim to use foisted unilateral

agreements to discharge an obligation or end a lawsuit.”).

B. The Faretta hearing

No other pre-trial documents from the appellant appear in the

record from the period after the appellant filed his motion for self-

representation. On the day when jury selection was scheduled to begin,

the trial court advised that it had read the appellant’s pre-trial motions

and understood them to be an effort to represent himself. (2 RR 4). The

trial court originally stated that it would allow the appellant to

represent himself. (2 RR 4).

7 The trial court then began asking questions to ascertain whether

the appellant’s waiver of the right to counsel was made knowingly and

intelligently. The first question regarded the appellant’s educational

background: “How far did you go in school?” (2 RR 4). The appellant

replied: “First of all, I would like to be referred to as Paramount Security

Interest Holder and Properties collateral belonging to the defendant.” (2

RR 4-5). The trial court denied this request. After several unfruitful

exchanges with the trial court, the appellant finally revealed that he had

attended Houston Community College. (2 RR 5-6).

The trial court then asked whether the appellant was aware of the

charges against him. The appellant replied: “Is there anybody in the

courtroom who can present me with the original charging instrument?”

(2 RR 6). The trial court pointed out that “[t]he lawyers had it for almost

a year now,” but offered to make a copy for the appellant. (2 RR 6). The

appellant refused the offer and demanded to see “the original.” (2 RR 6).

The trial court refused to give the appellant the original indictment from

the clerk’s file. (2 RR 6).

The trial court announced that it would have the appellant’s

formerly appointed attorney act as standby counsel, then it continued to

advise the appellant about self-representation. (2 RR 6). The trial court 8 noted that it had found the appellant’s pre-trial filings “amusing.” (2 RR

6). However, the trial court advised that it would not allow the appellant

to use “this UCC stuff” 3 at trial. (2 RR 6).

The trial court advised the appellant that if he represented

himself, he would be “held to the exact same standard of practice as a

licensed attorney.” (2 RR 7). The trial court asked if the appellant

understood this, and he replied, “No, sir.” (2 RR 7). The trial court then

stated that the appellant could not represent himself because he

“lack[ed] the basic understanding to represent himself.” (2 RR 7). The

appellant replied:

What I understand, sir, is you keep saying “representing myself.” I’m not representing myself. I’m representing myself as Paramount Security Interest Holder of all property collateral belonging to the defendant. I am the agent for Marcus Jamez Lewis.

(2 RR 7).

The trial court replied that the appellant “shows a lack of ability to

understand the issues,” and because of this the appellant could not

3Though it does not appear that the appellant explicitly cited the Uniform Commercial Code in the pre-trial motions that made it into the record, many sovereign-citizen tactics purport to be based on the UCC; the appellant wrote “UCC- 1308 without prejudice” under his signature acknowledging the Faretta warnings and in post-conviction paperwork. (See CR 109, 129-130); see also Meads, 2012 ABQB 571 at para 150 (noting sovereign citizens’ reliance on UCC, even in Canadian courts, and finding such tactics “baffling”). 9 represent himself. (2 RR 7-8). The trial court told defense counsel to

represent the appellant, to which the appellant replied: “I do not

consent to be represented by anybody.” (2 RR 8 ). The appellant stated

that he understood that if he represented himself he would be held to

the same standard as a lawyer. (2 RR 8).

The appellant asked the judge: “[S]ir, can you identify yourself, sir?

I don’t even know who you are.” The judge identified himself: “Judge,

first name, last name, Anderson.” (2 RR 8). The appellant then asked if

the clerk and an unknown woman could identify themselves, but the

trial court replied “No” to both requests. (2 RR 8).

The trial court resumed admonishing the appellant as though he

would be able to represent himself. (2 RR 8-9). The trial court explained

again that if the appellant represented himself he would be held to the

same standard as a lawyer, and the appellant again said he understood.

(2 RR 9). The trial court noted on the record that the appellant had

signed his “Fedora motion,” which seems to be how the court reporter

transcribed “Faretta,” the seminal Supreme Court case on self-

representation. (2 RR 9; CR 108-09 (Faretta warnings signed by

appellant on day of jury selection)).

10 The trial court continued with admonishing the appellant

regarding self-representation, with mixed results in terms of getting

answers from the appellant. When the trial court advised the appellant

again that “none of this UCC stuff is getting in front of this jury,” there

was a confused exchanged in which the appellant purported not to

understand what the trial court was talking about. (2 RR 10-11).

The appellant asked about his “three-step administration process

that I tried to handle with the district attorney[4] who I don’t even know

where she is.” (2 RR 11). The trial court pointed out that the prosecutor

was standing next to the appellant, after which the appellant replied,

“Where? She didn’t identify herself.” (2 RR 11). After another exchange

in which the appellant purported not to know that the prosecutor was

the person trying the case against him, the trial court refocused the

conversation: “I understand what you’re doing here, sir. It’s just

nonsense.” (2 RR 11).

The trial court returned to admonishing the appellant. The trial

court advised that if the appellant represented himself he was waiving

his right to effective counsel. (2 RR 12). The appellant replied: “I reserve

4Neither the State’s appellate nor trial counsel knows what the appellant was referring to here. Presumably the appellant thought it had something to do with his pre-trial filings. 11 all of my legal rights.” (2 RR 12). The trial court asked the question

again, and this time the appellant stated that he waived his right to

effective representation. (2 RR 12).

The trial court asked if the appellant was familiar with the Penal

Code and knew the charges against him. (2 RR 12). The appellant said

that he was familiar with the Penal Code, but he was not aware of the

charges. (2 RR 12). The trial court repeated the charges the appellant

faced and asked if he understood; the appellant said that he did not. (2

RR 12-13).

At this, the trial court announced that the appellant could not

represent himself because he did not understand the charges. (2 RR 13).

The court recessed for lunch.

Something appears to have happened during the lunch break,

because when the record resumes the trial court announces that there is

“a significant security team in court.” (2 RR 13). The trial court advised

the appellant that it wanted him to “join us for your trial,” but that the

appellant was free to remain in a holding cell if he preferred. (2 RR 14).

The trial court asked if the appellant wanted to be part of the trial, to

which the appellant replied: “For the record you keep referring to me as

someone else. I am the Paramount Security Interest Holder and 12 collateral belonging to the defendant, Marcus Jamez Lewis. And the

Court can refer to as Marcus.”5 (2 RR 14). The appellant advised that he

did not consent to having defense counsel represent him, and that he

had “never consented to be represented by anybody else other than

Marcus.” (2 RR 14-15).

The trial court then asked “Marcus” whether he wanted to sit in on

the trial, and the appellant replied: “I do not consent.” (2 RR 15).

Defense counsel asked if the appellant wanted to represent himself, but

the trial court advised that “that’s not going to happen” because it had

no intention “to spend two days referring to Mr. Marcus Lewis as

Paramount Security Interest Holder in all Parties and properties of

Marcus Jamez Lewis.” (2 RR 15). The trial court characterized the

appellant’s name preference as “just silly.” (2 RR 15).

The trial court advised the appellant that he could watch the trial

so long as he was “non obstructive.” (2 RR 15). The appellant continued

to state that he did not consent to defense counsel representing him and

asked whether anyone could “show me where I consented to voluntary

waive my right to represent myself.” (2 RR 16).

5This seems to be the appellant’s take on the classic sovereign-citizen trope that each person is, in fact, two persons, one an actual person and the other a non- corporeal legal entity. Meads discusses this concept and its manifestations with some detail. Meads, 2012 ABQB 571 at paras 417-46. 13 The trial court again asked the appellant whether he wanted to

observe and participate in the trial, to which the appellant replied: “I

have issue with subject matter jurisdiction.” (2 RR 17). The appellant

then asked the trial court whether its name, “Judge,” was “in your

physical capacity or primatial capacity.” (2 RR 17). The trial court said

that was in its physical capacity. (2 RR 17). The appellant followed that

up by asking, “So you’re the judge of who and what?” (2 RR 17). The trial

court replied, “You today, sir …” (2 RR 17). From this exchange, the trial

court concluded that the appellant was “not going to participate in his

trial.” (2 RR 17). The appellant was then taken to a holding cell. (2 RR

18). The appellant was brought back at the beginning of voir dire but

was eventually removed from the courtroom again after causing

numerous disruptions. (2 RR 52).6

At some point that day, the trial court entered a written order

denying the appellant’s request to represent himself. (CR 109). The trial

court made the following handwritten notation:

6 When the guilt phase of the trial started the next day, the appellant resumed his sovereign-citizen talking points (e.g., when the trial court asked whether he pled guilty or not guilty, the appellant replied, “Judge, there’s the issue of subject matter jurisdiction.”), so the trial court had him removed from the courtroom before the jury was brought out. (3 RR 5-9). Later, the appellant was able to disrupt the trial by shouting from the holding cell, which prompted the trial court to have him removed to a different holding cell. (3 RR 28-31). 14 [Defendant] is confrontational, obstructive and chooses to assert issues not relevant to this case. He insists on using the name “Paramount Security Interest Holder in all party Properties.” He insists he is a sovereign state and not subject to any laws of this Country and the state has not filed a UCC lien — utter nonsense. No understanding of rules of evidence / relevancy [illegible].

(CR 109).

II. Legal Background: The right to self-representation can be denied if a defendant is disruptive or is not competent to represent himself.

A. The right and its limits

The Sixth and Fourteenth Amendments to the federal constitution

give criminal defendants in state court a right to represent themselves at

trial. Faretta v. California, 422 U.S. 806, 807 (1975). However, there are

two limitations on this right that are relevant to this case.

First, because a defendant who represents himself gives up “many

of the traditional benefits associated with the right to counsel” (such as

the right to effective assistance of counsel), a defendant’s decision to

represent himself must be made “knowingly and intelligently.” Id. at 835.

While the case law does not require “formalistic questioning” of the

defendant by the trial court, for a defendant to represent himself the

record must establish that “he knows what he is doing and his choice is

15 made with open eyes.” Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim.

App. 1988) (plurality op.); see Goffney v. State, 843 S.W.2d 583, 585 (Tex.

Crim. App. 1992).

In Indiana v. Edwards, 554 U.S. 164 (2008), the Supreme Court

addressed the question of what level of competence was required for a

defendant to intelligently and knowingly waive his right to counsel and

represent himself. The state trial court in Edwards had found that the

defendant was competent to stand trial, but not competent enough to

represent himself. Edwards, 554 U.S. 167. The state appellate courts

reversed the conviction, holding that the level of competence to

represent oneself was no higher than the level required to stand trial. Id.

at 169.

The Supreme Court reversed that decision. It noted that the test

for competence to stand trial involves asking whether the defendant can

assist counsel, which is a significantly different level of competence than

being able to be one’s own counsel.7 Id. at 174-75. Ultimately, the court

7 In his brief, the appellant points out that the level of competence required for waiving the right to counsel is the same, minimal requirement as the level of competence to stand trial. (Appellant’s Brief at 23-24); see Godinez v. Moran, 509 U.S. 389, 399 (1993). However, the Supreme Court in Edwards distinguished Godinez, noting that its holding related only to the level of competence required to waive the right to counsel when entering a plea of guilty. Edwards, 554 U.S. at 173. While the appellant’s statement of the law here is technically accurate, it is off point. The 16 concluded that, while not required to do so by the Constitution, a state

court could apply a higher standard of competence for self-

representation than is required to stand trial. Id. at 177-78. That is, if a

defendant is competent to stand trial but the trial court found that his

level of competence was low enough that allowing him to represent

himself would turn the trial into a farce, a state trial court could force

the defendant to be represented by counsel. Id. at 175-77.

The second relevant limitation on the right to self-representation

is that it cannot be used “to abuse the dignity of the courtroom.” Faretta,

422 U.S. at 835 n.46. While the State can find no Texas cases upholding a

trial court’s decision to deny self-representation based on disruptive

courtroom behavior, 8 federal courts and courts in others states have

held that a trial court may force counsel upon disruptive pro se

defendants. See United States v. Brock, 159 F.3d 1077, 1080 (7th Cir.

appellant sought not only to waive the right to counsel, he sought to conduct a trial while acting as his own counsel. It is his competence to do the latter that is at issue.

8Texas courts have not disputed that this is a viable basis for denying the right of self-representation, but in the particular circumstances of the cases that have been appealed, appellate courts have held that trial courts’ decisions on this basis were not supported by the record. See, e.g., Birdwell v. State, 10 S.W.3d 74, 78 (Tex. App.— Houston [14th Dist.] 1999, pet. ref’d); Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); Colon v. State, 717 S.W.2d 474, 475 (Tex. App.—San Antonio 1986, no pet.).

17 1998) (defendant effectively waived right to self-representation through

disruptive, non-cooperative behavior); United States v. Long, 597 F.3d

720, 729 (5th Cir. 2010) (disruptive behavior combined with vacillating

response to judicial questioning constituted waiver of right to self-

representation);9 United States v. Brunson, 482 Fed. Appx. 811, 818 (4th

Cir. 2012) (upholding trial court’s decision to appoint counsel for

previously pro se defendants after defendants “had filed numerous

nonsensical pro se motions” and asserted such arguments at hearings);

see also Hummel v. Com., 306 S.W.3d 48, 53 (Ky. 2010) (stating “the rule

in other jurisdictions is that a request for self-representation may be

properly denied if the defendant is unable or unwilling to act with

decorum in court as he conducts his own defense and instead seeks only

to disrupt or delay proceedings,” and collecting sources).

The most on-point case is United States v. Mosley, 607 F.3d 555

(8th Cir. 2010). Mosley was charged with being a felon in possession of a

firearm and the trial court originally allowed him to represent himself.

9 Of note, Long displayed certain indicia of being a sovereign-citizen litigant. When the trial court asked Long whether he wanted to represent himself, Long replied: “For the record, Your Honor, your offer of contract is accepted for value and returned with consideration for discharge, settlement, and closure.” Long, 497 F.3d at 723; see Meads, 2012 ABQB 571 at para 223, 249 (identifying similar phrases as being strong indication of a sovereign-citizen litigant).

18 Mosley, 607 F.3d at 557. Mosley filed a pre-trial motion and made

courtroom statements indicative of being a sovereign-citizen litigant.

Ibid. (“I am a live and living, flesh and blood breathing man, who is a

secured party who is sovereign. I am not a corporation.”). 10 At one

hearing Mosley “read from a prepared statement making claims that

were unrelated to his case.” Ibid. At other hearings, when the trial court

would attempt to engage him about self-representation Mosely was

“completely unresponsive to the Court.” Id. at 558. Sometime during this

process the trial court appointed counsel for Mosley, who continued

representing him through trial over Moseley’s objection. Ibid. 11

On appeal, Mosley’s only complaint was the denial of his right to

self-representation. The Eighth Circuit held that Mosley, through his

“obstreperous conduct” had forfeited his right to proceed pro se. Id. at

559. The appellate court noted that the trial court’s decision to

terminate Mosley’s self-representation was based on its belief that

10See Meads, 2012 ABQB 571 at para 221 (stating that documents filed by sovereign-citizen litigants “frequently refer to the litigant as having a particular status or characteristic,” and listing several possibilities, including “a ‘flesh and blood man’” and that “the litigant is a person or a natural person, but not a corporation,” or that “the litigant is … [a] ‘secured party.’”).

11 Like the appellant, Mosley continued being disruptive during jury selection and trial, at one point interrupting trial to advise the court that the name on the indictment was not his name but that of a corporation. Mosley, 607 F.3d at 559. 19 either Mosley did not understand the proceedings or that he was not

willing to participate in them. Id. at 559. This belief, the trial court noted,

was based on Mosley’s refusal to answer questions and participate in

proceedings. Ibid. Because this was well supported by the record, the

trial court did not err. Ibid.

B. Standard of review

A ruling on a defendant’s motion for self-representation is a mixed

question of law and fact that turns on an evaluation of credibility and

demeanor. Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App.

2010). As such, the trial court’s ruling is reviewed for an abuse of

discretion. Ibid. On review, appellate courts afford almost total deference

to the trial court when the resolution turns on an evaluation of

credibility and demeanor. Ibid. An appellate court is to view the

evidence in the light most favorable to the trial court’s ruling. Ibid. If the

trial court failed to make necessary findings, appellate courts are to

imply any findings that are supported by the evidence and necessary to

support the trial court’s ruling. Ibid

If a trial court abuses its discretion in denying a motion for self-

representation, the error is not subject to harm analysis and requires

20 reversal. Alford v. State, 367 S.W.3d 855, 865 (Tex. App.—Houston [14th

Dist.] 2012, pet. ref’d).

III. Argument: This Court could affirm the trial court’s ruling either on the basis that the appellant did not understand the proceedings well enough to represent himself or on the basis that the appellant was using his right to self- representation to obstruct trial proceedings. This Court should affirm on the second basis.

The record in this case could support findings that the appellant

did not understand the charges against, and that he was using his right

to self-representation to disrupt the trial. In Mosely, the Eighth Circuit

responded to a sovereign-citizen litigant by affirming the trial court’s

ruling on both grounds. Mosley, 607 F.3d at 559.

However, that sort of holding does not get at the core of what

occurred in this case. To the degree that the appellant gave vacillating

answers as to whether he understood the proceedings, he did so as part

of his general effort to disrupt and disrespect the proceedings. A finding

that a defendant is competent to stand trial but incompetent to

represent himself at trial, as the courts made in Edwards and Chadwick,

should be reserved for cases in which there is solid evidence of an actual

mental disorder. The appellant had no mental disorder. (See CR 24-

21 29).12 He was using the right of self-representation to abuse the system.

He was not insane, he was obstreperous. This Court should not dignify

the appellant’s conduct by attributing it to a legitimate cause. Instead,

this Court should affirm the trial court’s explicit finding that the

appellant was being “obstructive” and therefore waived his right to self-

representation.

A. Evidence that the appellant did not understand the proceedings

The appellant vacillated in his answers to the trial court’s

questioning, sometimes indicating that he understood the proceedings

and what self-representation entailed (see 2 RR 9), sometimes

indicating that he had no understanding whatsoever of what was

occurring (see 2 RR 6 (did not understand charges), 7 (did not

understand being held to same standard as attorney), 11 (seemed to

believe there was a “three step administration process” to resolve

charges, then seemed not to know that prosecutor was trying the case

against him), 12-13 (repeatedly disavowed knowing of charges against

12From the appellant’s competency examination: “Findings on this competency examination indicated that the [appellant] exhibited rational thought and calm/cooperative demeanor with the capacity to communicate in a reasonable and rational manner.” (CR 28). 22 him)), and sometimes he answered the trial court with nonsense (see,

e.g., 4-5).

At one point, the trial court found that the appellant “ha[d] no

perception of what he’s doing down here.” (2 RR 7). Later in the hearing,

the final straw for the trial court was when the appellant repeatedly

stated that he did not understand what he was charged with. (2 RR 12-

13). Whether the appellant was being sincere in his claims of ignorance

or whether he was using false claims of ignorance to be obstructive, the

record supports the trial court’s explicit and implicit findings that the

appellant did not understand the nature of the charges against him.

In abuse-of-discretion review, this Court defers to a trial court’s

findings if there is conflicting evidence on the matter, particularly where

those findings are based on credibility and demeanor. Chadwick, 309

S.W.3d at 561. While the appellant provided a couple of answers

indicating that he understood the nature of the proceedings, the bulk of

his answers (and his bizarre pre-trial filings) indicated, as the trial court

found, a complete lack of perception of what was going on. Accordingly,

this Court could affirm the trial court on the basis that the appellant did

not have sufficient understanding of the proceedings to conduct a trial.

23 B. Evidence that the appellant was attempting to use his right to self-representation to obstruct the proceedings

The appellant’s interactions with the trial court during the Faretta

hearing consisted largely of inappropriate answers to simple questions.

After the Faretta hearing, the appellant’s conduct became even more

disruptive, indicating that the trial court was correct in its belief that the

appellant’s aim was to disrupt the proceedings. (See 3 RR 6 (when asked

to plead guilty or not guilty, appellant brought up “the issue of subject

matter jurisdiction”), 8-9 (when presented with last-minute plea offer,

appellant responded by requesting trial court refer to him as “Marcus”

instead of “Mr. Lewis,” and then questioned whether “anyone in this

courtroom … can present me with an original charging instrument or a

claim against me”)).

In his brief, the appellant asserts that at the Faretta hearing he

“was cooperative and answered all of the trial court’s questions.…”

(Appellant’s Brief at 34). The appellant further asserts that “[t]here is no

evidence in the record to suggest that [his] behavior was a deliberate

attempt to obstruct the trial court proceedings.” The State respectfully

disagrees with these characterizations, as did the trial court. Based on

the appellant’s courtroom demeanor, the trial court found that the

24 appellant was “confrontational” and “obstructive.” (CR 109). Considering

the nature of the answers the appellant provided, along with his bizarre

pre-trial filing (see CR 71-99 (lengthy handwritten documents, the gist

of which is that the prosecutor’s failure to respond to appellant’s claims

with sworn affidavit would constitute “default” and acceptance of

appellant’s claims)), the trial court was well within its discretion to

conclude, based on the appellant’s demeanor, that the appellant

intended to use his right to self-representation to obstruct the

proceedings. See Mosley, 607 F.3d at 558-59. Therefore, this Court

should reject the appellant’s first point.

Reply to Point Two

The appellant’s use of sovereign-citizen tactics does not raise a bona fide doubt about his mental competence to stand trial.

In his second point of error, the appellant argues that his

disruptive sovereign-citizen tactics were bizarre enough that they

should have prompted the trial court to make inquiry into his

competence to stand trial. The appellant is arguing that if he did not

have an understanding of the proceedings against him to allow him to

represent himself, then he may not have had a sufficient understanding

25 of the proceedings to go to trial. This point illustrates why it is

important that this Court address the appellant’s first point by affirming

the trial court’s finding that the appellant was too disruptive to

represent himself.

I. Legal Background: Absent a request from a party, a trial court’s decision not to hold a competency inquiry is an abuse of discretion only if, as a matter of law, the evidence created a “bona fide doubt” regarding a defendant’s competence to stand trial.

A defendant is not competent to stand trial if he does not have

sufficient present ability to consult with his attorney with a reasonable

degree of rational understanding, or if he does not have a rational and

factual understanding of the proceedings against him. TEX. CODE CRIM.

PROC. art. 46B.003(a). Either party may suggest, or the trial court may

suggest on its own motion, that the defendant may be incompetent to

stand trial. TEX. CODE CRIM. PROC. art. 46B.004(a) . If evidence suggesting

that the defendant may be incompetent to stand trial comes to the

attention of the trial court, the court must suggest that the defendant

may be incompetent. Id. at 46B.004(b). Upon such a suggestion, the trial

court must determine by informal inquiry whether there is some

evidence that would support a finding that the defendant may be

26 incompetent. Id. at 46B.004(c). If there is such evidence, the trial court

must stay the proceedings in order to have the defendant examined. TEX.

CODE CRIM. PROC. art. 46B.005(a).

If a trial court does not conduct a competency inquiry but, on

appeal, a defendant suggests that one was appropriate, an appellate

court reviews the trial court’s actions (or lack thereof) for an abuse of

discretion. Salahud-din v. State, 206 S.W.3d 203, 207 (Tex. App.—Corpus

Christi 2006, pet. ref’d). “Evidence sufficient to prompt a competency

hearing or inquiry must raise a ‘bona fide doubt’ in the mind of the trial

judge as to the defendant’s competency to stand trial; a bona fide doubt

exists if the evidence indicates recent severe mental illness, or at least

moderate mental retardation, or truly bizarre acts by the defendant.” Id.

at 208 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App.

1997)).

However, bizarre, obscene, or disruptive comments by a defendant

during court proceedings do not necessarily constitute evidence

supporting a finding of incompetency. Johnson v. State, 429 S.W.3d 13, 18

(Tex. App.—Houston [14th Dist.] 2013, no pet.). “If such actions were

[necessarily] probative of incompetence, one could effectively avoid

27 criminal justice through immature behavior.” Moore v. State, 999 S.W.2d

385, 395 (Tex. Crim. App. 1999).

A defendant’s obstinate refusal to work with his trial counsel is

not evidence that he is incompetent to stand trial. Turner v. State, 422

S.W.3d 676, 691 (Tex. Crim. App. 2013). Such obstinateness is only

indicative of a lack of competence if there is evidence showing that it is

the result of a mental illness.

II. Argument: The only evidence of incompetence the appellant points to are his sovereign-citizen tactics, but those are evidence of obstinateness, not incompetence.

Very early in the proceedings, defense counsel presented the trial

court with a suggestion that the appellant was incompetent, and that,

specifically, “he does not recall why he is in custody.” (CR 21). The court

ordered a psychological evaluation, and the psychologist found that the

appellant understood the proceedings, understood why he was in jail,

and was capable of assisting his counsel. (CR 24-29). Nothing in the

record suggests that anyone questioned the appellant’s competency at

any other point in the proceedings.

On appeal, the appellant points to his bizarre pre-trial filings and

courtroom discourse as evidence that he was incompetent to stand trial.

28 (Appellant’s Brief at 38-41). But the appellant’s sovereign-citizen tactics

were not the result of mental illness, they were plainly the result a

conscious plan to disrupt his trial. As Meads makes clear, sovereign-

citizen tactics are not the result of insane individuals making delusional

filings, they are the result of programs that are sold and marketed by

gurus to individuals who believe they can use certain tactics skirt their

legal obligations to society. Meads, 2012 ABQB 571 at paras 81-86

(discussing how sovereign citizen tactics “appear to be developed in

social groups”). Indeed, as bizarre as the appellant’s pre-trial filings

might seem, the State’s appellant counsel was able to find a template for

one these filings with a simple google search. Compare CR 40-44 to

CRACKING THE CODE, 310-14 (3rd ed. 2002) (free preview available from

Google at https://goo.gl/5rW6zo).13

In his brief, the appellant points to the trial court’s determination

that his understanding of procedure was not sufficient to allow him to

represent himself. (Appellant’s Brief at 40-41). At the end of the Faretta

13This book, which seems to be by an anonymous author, states that its purpose is to help people avoid ordinary legal obligations. The preface of the book describes its purpose as “showing anyone how to successfully withstand and nullify unsolicited demands for payment/performance from attorneys, banks, judges, clerks of court, police, taxmen, and government agents (and anyone else who would casually and unjustly damage one’s life) and cease being muscled into ‘doing business’ with such parties against his will.” CRACKING THE CODE, xix. 29 hearing, the trial court found that the appellant “showed a lack of

understanding of what he’s charged with and procedures of the Court.”

(2 RR 13). The trial court continued: “I don’t think for a second that he

can represent himself.…” (2 RR 13).

This finding by the trial court, by its terms, related to the

appellant’s ability to represent himself as counsel, not his competence to

stand trial. See Indiana v. Edwards, 554 U.S. 164, 173, 176-78 (2008)

(noting distinction between those two types of competence). As the

holding in Edwards makes clear, a defendant can be competent to stand

trial but not competent to represent himself as counsel. Id. at 177-79;

see Chadwick 309 S.W.3d at 563 (affirming court of appeals’s conclusion

that trial court did not abuse discretion in finding defendant was

competent to stand trial but incompetent to represent himself). The

trial court in this case observed the appellant’s demeanor in the

courtroom and came to the conclusion that it was only his competence

to represent himself that was at issue.

The appellant was not incompetent to stand trial, he merely

subscribed to some peculiar pseudolegal theories and sought to put

those theories into action. Allowing a competent defendant with no

mental illness to grant himself the protections afforded to the 30 legitimately incompetent by consciously adopting a disruptive trial

strategy would make an utter mockery of the system. The appellant’s

conduct was an effort to “avoid criminal justice through immature

behavior.” See Moore, 995 S.W.2d at 395. This Court should thwart that

effort by denying the appellant’s second point.

Reply to Point Three

The appellant’s point is based on a factual mistake. On the date the appellant was stopped, the offense of improper display of a license plate was punishable by a fine of between $5 and $200, thus counsel was not ineffective for failing to file a motion to suppress based on the fact that improper display of a license plate was not a criminal offense.

The appellant’s third point is quite long, but it can be addressed

quite briefly because it is based on a factual mistake. In his third point,

the appellant argues that his trial counsel was ineffective because trial

counsel did not file a motion to suppress the evidence in this case. The

appellant asserts that the police stop that led to his arrest was illegal

because at that time there was no statutory penalty attached to the

failure to properly display a license plate, meaning that it was not a

criminal offense for which an officer could lawfully stop a vehicle. (See

Appellant’s Brief at 44-60). The State does not substantially disagree

31 with most of the appellant’s legal points, and were it not for a factual

error his argument might well have merit.

However, at the time of the stop the legislature had assigned a

penalty to the failure to properly display license plates, meaning that it

was a criminal offense and the officers’ stop of the appellant was lawful.

In 2013, apparently realizing that the prior legislature had accidentally

repealed the penalty for failure to properly display license plates, the

83rd Legislature enacted Transportation Code § 504.948, which

establishes that the penalty for violating any provision of Chapter 504

for which no other penalty is specified is a fine of between $5 and $200.

TEX. TRANSP. CODE § 504.948 (West Supp. 2014). The enacting legislation

made this provision effective immediately upon approval of the

legislation, which occurred on June 14, 2013. Act of June 14, 2013, 83rd

Leg. R.S., ch. 1135 §§ 84, 144, 2013 Tex. Sess. Law Serv. 2708, 2724,

2739-40. The stop in this case occurred on August 15, 2013. (3 RR 17).

The proper display of license plates is a requirement imposed in

Chapter 504 of the Transportation Code. See TEX. TRANSP. CODE §

504.943. Therefore, Section 504.948 applied to it. Trial counsel was not

ineffective for not raising this matter in a motion to suppress, thus this

Court should reject the appellant’s third point. 32 Reply to Point Four

The trial court did not err in refusing to hold a hearing on the appellant’s motion for new trial. The motion alleged that counsel was ineffective for failure to investigate the case and call witnesses, but the only uncalled witness mentioned in the motion was the appellant’s mother, and her affidavit that she would say “good things” about the appellant was conclusory.

The appellant filed a timely motion for new trial alleging that trial

counsel was ineffective for failing to investigate the case and call

witnesses in the punishment phase. (CR 149-160). The motion was

presented to the trial court, but the trial court denied the appellant’s

request for a hearing on the motion. (CR 163). In his fourth point of

error, the appellant claims that this was error. (Appellant’s Brief at 61-

64).

The denial of a defendant’s request for hearing on a motion for

new trial is reviewed for an abuse of discretion. Smith v. State, 286

S.W.3d 333, 339 (Tex. Crim. App. 2009). A defendant is entitled to a

hearing on his motion for new trial so long as his motion asserts, and

properly supports, reasonable grounds for relief that are not

determinable from the record. Jordan v. State, 883 S.W.2d 664, 665 (Tex.

Crim. App. 1994). Appellate review of a trial court’s decision to deny a

hearing on a motion for new trial is limited to the trial court’s

33 determination of whether the defendant raised grounds that (1) are

undeterminable from the record and (2) could entitle the defendant to

relief. Smith, 286 S.W.3d at 340.

To prevail on a motion for new trial based on a claim of ineffective

assistance, a defendant must show that his trial counsel’s performance

was deficient, and that this deficiency prejudiced the defendant. Ibid.

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove

prejudice, a defendant must show that there is “a reasonable probability

that, but for his counsel’s unprofessional errors, the result of the

proceeding would have been different.” Ibid. (quoting Strickland, 446 U.S

at 694). To be entitled to a hearing on motion for new trial that is based

on a claim of ineffective assistance, a defendant must allege sufficient

facts from which the trial court could reasonably conclude that the

defendant could meet both parts of the Strickland test. Id. at 341.

Affidavits that are conclusory in nature and unsupported by facts are

not sufficient to put the trial court on notice that reasonable grounds for

relief exist. Buerger v. State, 60 S.W.3d 358, 362 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d); see Jordan v. State, 883 S.W.2d 664, 665

(Tex. Crim. App. 1994).

34 Regarding the claim that counsel was ineffective for failing to

conduct an investigation, the appellant produced no evidence at the

motion for new trial or on appeal regarding what an effective

investigation would have uncovered. Thus the appellant failed to make

the required showing that this was a viable basis for a new trial, and the

trial court did not abuse its discretion in not holding a hearing on this

ground. See Washington v. State, 417 S.W.3d 713, 725 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d).

Regarding the allegation that trial counsel was ineffective for

failing to call a witness, the only witness identified in the appellant’s

filings is his mother. Attached to the motion was an affidavit from the

appellant’s mother stating that she was available to testify, and if called

she “would have told the jury good things about [the appellant].” (CR

173). The affidavit does not state what “good things” the appellant’s

mother would have testified about, thus it is a conclusory affidavit that

did not apprise the trial court of a basis to believe the appellant could

meet the Strickland standard. See Buerger, 60 S.W.3d at 363 (trial court

did not err in denying hearing on motion for new trial that was

supported only be conclusory affidavit). This Court should reject the

35 appellant’s fourth point because he failed to submit sufficient affidavit

evidence to justify a hearing on his motion for new trial.

Reply to Point Five

The question of fact that the appellant points out in his brief was not material to the determination of probable cause to search the appellant’s car, thus the trial court did not err in refusing to give the jury a 38.23 instruction.

At trial, both of the officers testified that they observed the

appellant and his passenger make furtive movements after the officers

activated their emergency lights to initiate a traffic stop. (3 RR 21-22,

73). Officer Solis characterized the furtive movements in terms of the

driver making movements toward the door and center console, and the

passenger making movements toward the glove compartment. (3 RR 22,

56). Officer Diaz characterized the movements by noting that he saw

“[b]oth heads in the vehicle … started kind of ducking to the side,

leaning forward …” (3 RR 73). On cross examination, Diaz said that he

did not see either the driver or passenger “do anything” because during

the pursuit he could only see them “from the shoulders up.” (3 RR 93).

In his fifth point of error, the appellant asserts that there is a

“direct conflict between the two officers’ testimony” and that this

36 conflict justified submitting to the jury an instruction on illegally

obtained evidence. (Appellant’s Brief at 65-72).

I. This argument was not presented to the trial court

At trial, the appellant requested that the jury be charged on

illegally obtained evidence, though it was on an entirely different basis:

Trial counsel requested the instruction because he did not believe there

was probable cause for the search at all. (4 RR 5-11). At one point, the

trial court treated trial counsel’s request as a motion to suppress. (4 RR

10 (“I am not going to suppress the discovery of the substance in this

case)). 14 At no point did trial counsel point out any question of fact to

the trial court. Thus, the charge error that the appellant is alleging on

appeal should be reviewed only for “egregious harm” under Almanza v.

State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Madden v. State, 242

S.W.3d 504, 513 (Tex. Crim. App. 2007) (where 38.23 instruction is

requested on one basis in trial court but appellate argument alleges

different basis for 38.23 instruction, Almanza’s “egregious harm”

standard applies).

14Defense counsel had made a motion to suppress earlier, but the trial court advised that he would carry the motion until the end of the State’s case. (3 RR 77). 37 II. The minor discrepancy in the testimony was immaterial to the legality of the appellant’s detention or the search of the car.

Not every question of fact requires the trial court to instruct the

jury on illegally obtained evidence. To obtain a jury instruction under

Article 38.23(a), the disputed fact must be one that affects the

determination of the legal issue. Madden, 242 S.W.3d at 517.

In this case, the differences between the officers’ testimony that

the appellant points to is extremely marginal. Both officers testified that

they saw both occupants moving around in a manner that caused them

to believe the occupants may have been hiding something. (3 RR 21-22,

3 RR 73-76). The only difference is that one officer believed that he

could tell that the passenger was reaching into the glove compartment,

but the other officer did not have that belief and characterized the

movements more generally.

But probable cause to search the car did not hinge on whether the

passenger reached into the glove compartment (as Solis said) or

whether the passenger was making generalized furtive movements and

“leaning forward” (as Diaz said). (3 RR 79). At the time that Diaz

searched the car, he had several clues that there was contraband inside:

38 • After officers tried to initiate a traffic stop, the driver continued driving for about 1/5 of a mile as both occupants made furtive movements as though to hide something. (3 RR 73).

• Once the car was stopped, the passenger was found with what appeared to be crack cocaine on his lap. (3 RR 25).

• The appellant, the driver, became agitated when asked to produce identification. (3 RR 74-75).

• When asked to step out of the car, the appellant made a “quick movement” toward the center console. (3 RR 75).

These factor gave Diaz probable cause to believe that there was

additional contraband in the vehicle, thus the search was lawful. See

Cunningham v. State, 11 S.W.3d 436, 440 (Tex. App.—Houston [14th

Dist.] 2000, no pet.) (where officer observed driver make furtive

gestures when officer initiated traffic stop, and then officer observed

marihuana residue in car, officer had probable cause to search for

additional contraband). Whether the passenger reached into the glove

compartment was immaterial, thus the trial court was correct not to

instruct the jury on Article 38.23. This Court should overrule the

appellant’s fifth point.

39 Conclusion

The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.

DEVON ANDERSON District Attorney Harris County, Texas

/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 713.755.5826 Texas Bar No. 24071454

40 Certificate of Compliance and Service

I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 8,541 words.

I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

Jani Maselli Wood jani.maselli@pdo.hctx.net

/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454

Date: August 5, 2015