Opinion issued October 4, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00562-CR ——————————— MARK ANTHONY ROBINSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 19th District Court McLennan County, Texas* Trial Court Case No. 2015-1085-C1
MEMORANDUM OPINION
Appellant Mark Anthony Robinson was convicted of felony assault. TEX.
PENAL CODE § 22.01(b). He chose to represent himself, and he waived his right to
* The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeals from the Tenth Court of Appeals to this Court. See TEX. GOV’T CODE § 73.001; Misc. Docket No. 17–9128 (Tex. Sept. 28, 2017). a jury trial. The court found him guilty and gave him an enhanced sentence of 15
years in prison and a $2,000 fine due to a prior conviction for a similar offense.
Robinson raises two issues on appeal. First, he contends that the trial court
violated his constitutional right to present a defense by preventing him from
recalling two of the State’s witnesses during his case-in-chief. Second, he argues
that the trial court violated his due-process right to fundamental fairness by
refusing to allow him to consult with the court-appointed standby counsel during
trial, after telling him that he could do so.
Because Robinson waived both issues by failing to preserve them for
appellate review, we affirm.
Background
Mark Anthony Robinson was charged with felony assault. See TEX. PENAL
CODE § 22.01(b). His then-girlfriend, Natasha Washington, claimed that he beat
her at an apartment building in Waco. An eyewitness, Shannon Jennings, called
911 and corroborated Washington’s story.
After a lengthy admonition by the trial court about the risks of self-
representation, Robinson expressed his desire to represent himself, waiving his
right to an attorney. He likewise attempted to waive standby counsel, but the court
appointed one anyway to give legal advice or to represent him if needed. The trial
court explained the role of standby counsel, telling Robinson: “you can consult
2 with him if you wish to, and at any time you wish to have him appointed to
represent you, you have a right to do that. He’s here to give you any legal advice
that you ask for him.” The trial court then stated that the appointed standby counsel
had no duty to answer any of Robinson’s questions.
On the morning of the trial, the court reaffirmed its instructions regarding
standby counsel, telling Robinson: “Now, from time to time if you need to confer
with [standby counsel], I’ll allow you—we can take a recess and you can talk to
him, but I’m not going to allow him to sit here at the counsel table with you.”
The State called four witnesses, including eyewitness Shannon Jennings and
the complainant, Natasha Washington, who was being held in the local jail but
appeared pursuant to a subpoena. Robinson cross-examined each of the State’s
witnesses. After he cross-examined Washington, the trial court allowed her to
leave over Robinson’s objection. The court stated that she would be subject to
recall if needed.
After the State rested, Robinson gave an opening statement. At the
conclusion of his opening statement, he asked to consult with his standby counsel
“real quick.” The trial court denied his request. The day’s proceedings then
concluded with Robinson calling two witnesses to testify.
The next morning, Robinson attempted to recall Washington, and he
mentioned his interest in recalling Jennings. The court reminded Robinson that he
3 already had the chance to—and did—cross-examine both women during the
State’s case the previous day. Robinson explained that he wanted to question
Washington about her criminal history and recent arrest for the purposes of
impeachment. He was also concerned that the prosecutor and Washington’s
defense attorney for another case were coaxing her to be dishonest. The court
refused to recall Washington, pointing out that Robinson had already questioned
her about those matters the previous day, that they were otherwise already before
the court, or that the matters were improper for examination.
Robinson then asked again to consult with standby counsel. His request was
again denied. Robinson clarified that he had wanted to ask a legal question and that
he believed standby counsel had been appointed for that reason. The trial court
made no further ruling on the matter, nor did Robinson object.
Robinson then discussed with the trial court the prospect of recalling a few
other witnesses, including Jennings. As with Washington, he sought to discredit
Jennings’s testimony. The trial court pointed out that Robinson already had
covered that subject during his cross-examination the day before. While Robinson
explained that further testimony from Jennings would benefit his case, he did not
formally request to recall her. As a result, the court never made a ruling on that
matter, and Robinson rested his case.
After closing arguments, the court found Robinson guilty felony assault.
4 Analysis
I. Attempts to recall witnesses
Robinson argues that by prohibiting him from recalling the eyewitness,
Shannon Jennings, and the complainant, Natasha Washington, during his case-in-
chief, the trial court denied his constitutional right to present a defense. The State
argues that the merits of Robinson’s first issue were not sufficiently preserved for
review.
For a party to preserve a complaint for appellate review, the record must
show that a complaint was made to the trial court “by a timely request, objection,
or motion” that complies with the rules of evidence. TEX. R. APP. P. 33.1(a)(1)(B).
The trial court then must rule on the objection, or the complaining party must
object to the court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). Even constitutional
errors may be waived if the complaining party failed to object at trial. Broxton v.
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). The purpose of requiring an
objection is to put the trial court on sufficient notice to give it the opportunity to
remove the basis of the objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex.
Crim. App. 2000). In certain circumstances, an issue can be preserved even when
the complaining party fails to object. See Proenza v. State, 541 S.W.3d 786, 796
(Tex. Crim. App. 2017). However, Robinson does not argue that in this
circumstance he was excused from the requirement of objecting to preserve error.
5 We conclude that Robinson has waived his first issue by his failure to object
to the trial court’s ruling. A claim of error cannot be preserved for appeal when
there is no objection stating the grounds for the complaining party’s desired ruling
with “sufficient specificity to make the trial court aware of the complaint.” TEX. R.
APP. P. 33.1(a)(1)(A). With respect to both witnesses identified on appeal,
Robinson attempted to express reasons why he should be able to recall the
witnesses, but he actually requested to recall only Washington. He discussed
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Opinion issued October 4, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00562-CR ——————————— MARK ANTHONY ROBINSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 19th District Court McLennan County, Texas* Trial Court Case No. 2015-1085-C1
MEMORANDUM OPINION
Appellant Mark Anthony Robinson was convicted of felony assault. TEX.
PENAL CODE § 22.01(b). He chose to represent himself, and he waived his right to
* The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeals from the Tenth Court of Appeals to this Court. See TEX. GOV’T CODE § 73.001; Misc. Docket No. 17–9128 (Tex. Sept. 28, 2017). a jury trial. The court found him guilty and gave him an enhanced sentence of 15
years in prison and a $2,000 fine due to a prior conviction for a similar offense.
Robinson raises two issues on appeal. First, he contends that the trial court
violated his constitutional right to present a defense by preventing him from
recalling two of the State’s witnesses during his case-in-chief. Second, he argues
that the trial court violated his due-process right to fundamental fairness by
refusing to allow him to consult with the court-appointed standby counsel during
trial, after telling him that he could do so.
Because Robinson waived both issues by failing to preserve them for
appellate review, we affirm.
Background
Mark Anthony Robinson was charged with felony assault. See TEX. PENAL
CODE § 22.01(b). His then-girlfriend, Natasha Washington, claimed that he beat
her at an apartment building in Waco. An eyewitness, Shannon Jennings, called
911 and corroborated Washington’s story.
After a lengthy admonition by the trial court about the risks of self-
representation, Robinson expressed his desire to represent himself, waiving his
right to an attorney. He likewise attempted to waive standby counsel, but the court
appointed one anyway to give legal advice or to represent him if needed. The trial
court explained the role of standby counsel, telling Robinson: “you can consult
2 with him if you wish to, and at any time you wish to have him appointed to
represent you, you have a right to do that. He’s here to give you any legal advice
that you ask for him.” The trial court then stated that the appointed standby counsel
had no duty to answer any of Robinson’s questions.
On the morning of the trial, the court reaffirmed its instructions regarding
standby counsel, telling Robinson: “Now, from time to time if you need to confer
with [standby counsel], I’ll allow you—we can take a recess and you can talk to
him, but I’m not going to allow him to sit here at the counsel table with you.”
The State called four witnesses, including eyewitness Shannon Jennings and
the complainant, Natasha Washington, who was being held in the local jail but
appeared pursuant to a subpoena. Robinson cross-examined each of the State’s
witnesses. After he cross-examined Washington, the trial court allowed her to
leave over Robinson’s objection. The court stated that she would be subject to
recall if needed.
After the State rested, Robinson gave an opening statement. At the
conclusion of his opening statement, he asked to consult with his standby counsel
“real quick.” The trial court denied his request. The day’s proceedings then
concluded with Robinson calling two witnesses to testify.
The next morning, Robinson attempted to recall Washington, and he
mentioned his interest in recalling Jennings. The court reminded Robinson that he
3 already had the chance to—and did—cross-examine both women during the
State’s case the previous day. Robinson explained that he wanted to question
Washington about her criminal history and recent arrest for the purposes of
impeachment. He was also concerned that the prosecutor and Washington’s
defense attorney for another case were coaxing her to be dishonest. The court
refused to recall Washington, pointing out that Robinson had already questioned
her about those matters the previous day, that they were otherwise already before
the court, or that the matters were improper for examination.
Robinson then asked again to consult with standby counsel. His request was
again denied. Robinson clarified that he had wanted to ask a legal question and that
he believed standby counsel had been appointed for that reason. The trial court
made no further ruling on the matter, nor did Robinson object.
Robinson then discussed with the trial court the prospect of recalling a few
other witnesses, including Jennings. As with Washington, he sought to discredit
Jennings’s testimony. The trial court pointed out that Robinson already had
covered that subject during his cross-examination the day before. While Robinson
explained that further testimony from Jennings would benefit his case, he did not
formally request to recall her. As a result, the court never made a ruling on that
matter, and Robinson rested his case.
After closing arguments, the court found Robinson guilty felony assault.
4 Analysis
I. Attempts to recall witnesses
Robinson argues that by prohibiting him from recalling the eyewitness,
Shannon Jennings, and the complainant, Natasha Washington, during his case-in-
chief, the trial court denied his constitutional right to present a defense. The State
argues that the merits of Robinson’s first issue were not sufficiently preserved for
review.
For a party to preserve a complaint for appellate review, the record must
show that a complaint was made to the trial court “by a timely request, objection,
or motion” that complies with the rules of evidence. TEX. R. APP. P. 33.1(a)(1)(B).
The trial court then must rule on the objection, or the complaining party must
object to the court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). Even constitutional
errors may be waived if the complaining party failed to object at trial. Broxton v.
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). The purpose of requiring an
objection is to put the trial court on sufficient notice to give it the opportunity to
remove the basis of the objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex.
Crim. App. 2000). In certain circumstances, an issue can be preserved even when
the complaining party fails to object. See Proenza v. State, 541 S.W.3d 786, 796
(Tex. Crim. App. 2017). However, Robinson does not argue that in this
circumstance he was excused from the requirement of objecting to preserve error.
5 We conclude that Robinson has waived his first issue by his failure to object
to the trial court’s ruling. A claim of error cannot be preserved for appeal when
there is no objection stating the grounds for the complaining party’s desired ruling
with “sufficient specificity to make the trial court aware of the complaint.” TEX. R.
APP. P. 33.1(a)(1)(A). With respect to both witnesses identified on appeal,
Robinson attempted to express reasons why he should be able to recall the
witnesses, but he actually requested to recall only Washington. He discussed
obtaining further testimony from Jennings with the trial court, but he never
requested to recall her. As a result, the court ruled only on his request to recall
Washington, and Robinson did not object based on his constitutional right to
present a defense.
Robinson argues that while a self-represented defendant must follow the
same rules of evidence and procedure as an attorney, a court should still “listen
carefully” to a pro se defendant’s statements to “determine what claim he is
making or what relief he is requesting.” However, even giving great latitude to the
meaning of Robinson’s words, he did not say anything that put the court on notice
of a constitutional objection such that the court had an opportunity to correct the
ruling. Therefore, by failing to first raise his constitutional argument in the trial
court, Robinson waived his first issue.
6 II. Refusal to allow consultation with standby counsel
Robinson also argues that the trial court violated his due-process right to
fundamental fairness by refusing to allow him to confer with his standby counsel
on two occasions. Although Robinson admits that a self-represented defendant has
no constitutional right to standby counsel, he argues that it was fundamentally
unfair for the trial court to tell him standby counsel would be available, only to
later deny him access to the lawyer. The State again argues that Robinson failed to
preserve error.
The first time Robinson asked to consult his standby counsel, at the
conclusion of his opening statement, he did not object or make any statement on
the record to indicate that he believed his constitutional rights were being violated
when the trial court declined permission to consult with standby counsel. Since
Robinson neither objected nor raised a constitutional issue, he did not preserve
error.
The second time Robinson asked to consult his standby counsel was during
his case-in-chief, after the trial court refused to allow him to recall Washington and
also denied his request to consult standby counsel. Robinson tried to clarify that he
wanted to ask standby counsel a legal question, but the court denied his request
again. Robinson did not object to continuing with the trial, nor did he raise a
constitutional issue about the fundamental fairness of the court’s ruling. As a
7 result, Robinson’s failure to object is determinative, resulting in his waiver of his
second issue.
Conclusion
Since Robinson has failed to preserve either of his issues for review, we
affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Jennings, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).