Troy Robinson A/K/A Troy O'Neal Robinson v. State of Texas

387 S.W.3d 815, 2012 WL 4458178, 2012 Tex. App. LEXIS 8159

Opinions

OPINION

TERRY McCALL, Justice.

Following a plea of not guilty, appellant, Troy Robinson a/k/a Troy O’Neal Robinson, was convicted by a jury of delivery of cocaine in a drug-free zone. At the punishment phase, appellant pleaded true to two prior felony convictions. The trial court assessed punishment at confinement for a term of forty years.¹

Appellant presents four issues on appeal. In his first and third issues, appellant asserts that the trial court abused its discretion by denying appellant’s request to represent himself and by denying his motion for new trial. In his second issue, appellant challenges the legal sufficiency of the evidence to support a finding of a drug-free zone. In his final issue, appellant argues that the cumulative harm of the errors denied him a fair trial. We affirm.

Background Facts

Officer Ken Robinson worked undercover in the Special Operations Division of the Abilene Police Department, making controlled purchases of narcotics. Officer Robinson contacted appellant and his son, Justin Robinson, on December 28, 2009. Two days later, Officer Robinson contacted Justin and arranged to buy cocaine in the parking lot at the intersection of 12th Street and Grape Street. There was a small shopping center there, and Franklin Middle School was located a block away.

Officer Robinson saw appellant arrive; Justin was in the passenger seat. When Officer Robinson pulled over to appellant’s car, appellant stepped out of the vehicle and opened the hood. Appellant told Officer Robinson that the cocaine was inside a cup placed on the ground. Officer Robinson refused to get out of the vehicle; appellant picked up the cup and drove to the back of the building. There, Officer Robinson pulled up next to Justin, who was still in the passenger side. Justin handed him the cup with the drugs in exchange for $150.

Appellant was indicted on two counts of delivery and possession of more than one gram but less than four grams of cocaine within 1,000 feet of a school. For enhancement purposes, the indictment included two prior felony convictions for burglary of a building. The jury found appellant guilty of count one of the indictment and, in answer to a special issue in the jury charge, found the offense was committed in a drug-free zone. Appellant elected to have the trial court assess pun ishment. Appellant pleaded true to the enhancement allegations, and the trial court assessed punishment at confinement for forty years. The trial court denied appellant’s motion for new trial after hearing evidence on the motion.

Sufficiency of the Evidence

In his second issue, appellant argues that the evidence is insufficient to support the jury’s finding that the offense of delivery of cocaine occurred in a drug-free zone. We review a sufficiency of the evidence issue, regardless of whether it is denominated as a legal or factual claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex.App.-Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found, beyond a reasonable doubt, that Franklin Middle School was a school as defined in the jury charge. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). We afford almost complete deference to the jury’s determinations of credibility and resolve any inconsistencies in the evidence in favor of the verdict. Jackson, 443 U.S. at 326, 99 S.Ct. 2781; Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008); Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007); Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). .

Appellant argues that there was insufficient evidence that Franklin Middle School was a school as defined in the jury charge because, at the time of the offense, Franklin Middle School was not in operation. The trial court’s charge to the jury gave the following definitions:

“Drug Free Zone” means in, on, or within one thousand feet (1,000’) of the premises of a school.

“Premises” means real property and all buildings and appurtenances pertaining to the real property.

“School” means a private or public elementary or secondary school.

Because the State must prove the offense occurred within 1,000 feet of a “school” for the evidence to be legally sufficient, we must define “school” before reviewing the evidence. When construing a statute, we give effect to the plain meaning of the text where possible. Clinton v. State, 354 S.W.3d 795, 800 (Tex.Crim.App. 2011). The applicable statute defines a “school” as a private or public elementary or secondary school. Tex. Health & Safety Code Ann. § 481.134(a)(5) (West Supp. 2012). Black’s Law Dictionary defines “school” as “[a]n institution of learning and education.” Blaoe’s Law DictionaRy 1463 (9th ed. 2009). Neither the dictionary nor the statutory definition of “school” depends on the school being currently in session. Therefore, the plain language of the statute makes apparent that a person need only deliver a controlled substance within 1,000 feet of a school (or its premises) to have committed the offense in a drug-free zone. “[T]he name of the premises alone may be sufficient to raise a presumption that it is a private or public elementary or secondary school.” Young v. State, 14 S.W.3d 748, 754 (Tex.Crim. App.2000). In Young, two officers testified that the premises in question were those of a school, and one of the officers testified to the distance between the premises and the offense. Id. at 753-54.

To prove appellant delivered cocaine within a drug-free zone, the State elicited testimony from three police officers involved in the undercover operation. Officer Robinson purchased the cocaine and described the location where he met appellant and Justin, stating “[t]here is a school just a block west, Franklin Middle School.” Officer David “D.D.” Gray testified that the actual distance between the school and the location of the offense was approximately 228 feet. David Gage, a former sergeant with the Abilene Police Department, worked as part of the undercover team. On direct examination, he stated that Officer Robinson and appellant were “between the old Franklin Middle School and the shopping center.” Gage further verified that Franklin Middle School was still owned by the school district, even though it was not in use. As the factfinder, the jury was the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks, 323 S.W.3d at 899; Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim.App.2008). The jury was free to believe or disbelieve all or any part, of the testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App.1987). We conclude a rational jury could have determined beyond a reasonable doubt that Franklin Middle School was a school as defined in the jury charge. Appellant’s second issue is overruled.

Right of Self-Representation

In his first issue, appellant complains that he did not effectively waive his right to self-representation. The State contends that appellant never made a clear and unequivocal assertion of that right, and even if he did, appellant withdrew his request. We review the factual issue of whether a defendant has clearly and unequivocally invoked the right to self-representation for an abuse of discretion. DeGroot v. State, 24 S.W.3d 456, 457-58 (Tex. App.-Corpus Christi 2000, no pet.). We view the evidence in the light most favorable to the trial court’s ruling and will imply any findings of fact supported by the record. Chadwick v. State, 309 S.W.3d 558, 561 (Tex.Crim.App.2010).

A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App. 2008). This right of self-representation is implicit in the Sixth Amendment, but it is not absolute. Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525. The defendant must clearly and unequivocally assert the right to self-representation, thereby waiving the right to counsel guaranteed by the Sixth Amendment. Ex parte Winton, 837 S.W.2d 134, 135 (Tex.Crim.App.1992); Funderburg v. State, 717 S.W.2d 637, 642 (Tex.Crim.App.1986); see Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (holding that courts must consider every reasonable presumption against waiver of counsel). Once asserted, the trial court must advise the accused of the consequences of self-representation. Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984). If, after the trial court’s admonishments, the accused elects to continue pro se, he should be allowed to do so provided the asserted right to self-representation is unconditional and not asserted to disrupt or delay proceedings. Id. at 585.

After asserting his right to self-representation, a defendant may waive it by his subsequent conduct. Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (citing Chapman v. United States, 553 F.2d 886, 893 & n. 12 (5th Cir.1977)). The trial court may find a waiver of the right where it reasonably appears that the defendant has abandoned his initial re quest to represent himself or is vacillating on the issue. Id.

Appellant argues he did not effectively withdraw his request for self-representation. We disagree. The record shows the trial court appointed an attorney to represent appellant, but appellant subsequently submitted two motions pro se — a motion to dismiss counsel and a motion for self-representation. In his motion for self-representation, appellant only requested hybrid representation: to appear “partially pro se and partially by counsel.”² The trial court held a hearing on the matter, during which it admonished appellant according to the requirements in Faretta, to determine whether appellant was “clearly and unequivocally” asserting his right to represent himself knowing of the dangers and disadvantages. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (West Supp. 2012); Williams, 252 S.W.3d at 356; Funderburg, 717 S.W.2d at 642. During the hearing, appellant vacillated on the issue before ultimately consenting to representation:

THE COURT: All right. Mr. Robinson, I understand that you wish to represent yourself and you do not wish [to] go forward with an attorney. Is that correct?

THE DEFENDANT: Yes, sir, but I would like to have me a standby attorney.

THE COURT: All right. Now, the law says — of course, you are entitled to that. The law, though, requires that I make an inquiry of you that is fairly extensive before I decide on that request. You understand that, sir?

THE DEFENDANT: Yes, sir.

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THE COURT: Do you wish to have [counsel] represent you?

THE DEFENDANT: If he gonna act right, if he gonna do the right thing.

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THE COURT: So we are here again, one last time, do you want [counsel] to represent you at trial, or do you want to go forward on your own with just him sitting as a — to give you advice when you ask him during trial?

THE DEFENDANT: (Crying.) I guess I’ll let him represent me.

Appellant’s dissatisfaction with appointed counsel and his request for hybrid representation did not establish a clear and unequivocal assertion of his right to self-representation. See Saldaña v. State, 287 S.W.3d 43, 55 (Tex.App.-Corpus Christi 2008, pet. ref'd); Cain v. State, 976 S.W.2d 228, 235-36 (Tex.App.-San Antonio 1998, no pet.). Viewing the motion and the hearing as a whole, appellant did not clearly and unequivocally assert his right to self-representation. Appellant requested standby counsel and subsequently withdrew that request, consenting to representation by appointed counsel. In the absence of a clear and unequivocal assertion of his right to self-representation, the trial court did not abuse its discretion in denying appellant’s request. Appellant vacillated on the issue and ultimately chose representation. Appellant’s first issue is overruled.

Denial of Appellant’s Motion for New Trial

In his third issue, appellant argues that the trial court erred in denying his motion for new trial. After hearing evidence on his motion, the trial court denied the motion. We review a trial court’s ruling on a motion for new trial for an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906-07 (Tex.Crim.App. 2007).

Appellant contends that the prosecution prevented a material witness, Justin, from testifying. Under Rule 21.3(e) of the Texas Rules of Appellate Procedure, a defendant must be granted a new trial “when a material defense witness has been kept from court by force, threats, or fraud.” Tex. R. App. P. 21.3(e). However, there is nothing in the record suggesting the prosecution breached its duties. See Tex. Code Crim. Proc. Ann. art. 2.01 (West 2005) (a district attorney “shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused”). Appellant’s son invoked his Fifth Amendment right and did not testify at appellant’s trial. A prosecutor risks reversible error by calling a witness who has invoked the privilege. See Namet v. United States, 373 U.S. 179, 188-89, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). A defendant has no right to have a witness assert his Fifth Amendment privilege against self-incrimination in the presence of the jury. Ellis v. State, 683 S.W.2d 379, 382 (Tex. Crim.App.1984). Neither the prosecution nor the defense could call Justin to testify once he invoked his right against self-incrimination.

At the hearing on the motion for new trial, appellant questioned the prosecutor regarding the plea bargain offered to Justin. The prosecution admitted to withholding a final plea agreement until hearing Justin’s testimony at appellant’s trial. Such actions are within the broad discretion of the prosecution. See Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). We view the evidence in the light most favorable to the trial court’s ruling and find an abuse of discretion only when no reasonable view of the record could support that ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim.App.2006). Appellant has failed to show that the trial court abused its discretion when it denied his motion for new trial. Appellant’s third issue is overruled.

Cumulative Error Doctrine

Appellant argues in his last issue that the cumulative effect of the errors resulted in an unfair trial. We have found no errors affecting appellant’s substantial rights. While a number of errors may be harmful in their cumulative effect, non-errors cannot in their cumulative effect cause error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999).

Appellant argues in the alternative that the prosecutor improperly questioned him on cross-examination in violation of Texas Rule of Evidence 609(b) because the prosecutor asked him about prior felony convictions that were over ten years old. Tex. R. Evid. 609(b). Appellant did not preserve this complaint for appeal. To preserve a complaint for our review, a timely and specific request, objection, or motion is required. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235, 238 (Tex.Crim.App.2009). Moreover, appellant’s argument is without merit. Once appellant took the witness stand in his own defense, he was subject to the same rules as any other witness and could be “impeached, contradicted, made to give evidence against himself, cross-examined on new matters, and treated in every respect as any other witness.” Harper v. State, 980 S.W.2d 625, 630-31 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Appellant’s counsel opened the door to the prosecutor’s line of impeachment questioning when his counsel asked whether appellant had “prior problems with the law.” Appellant’s fourth issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

Footnotes

1

. We note that the judgment incorrectly states that the jury assessed appellant's punishment. The record reflects that the trial court assessed punishment.

2

. The Texas Court of Criminal Appeals has held that there is no constitutional right in Texas to hybrid representation; however, a trial court has the discretion to allow standby counsel. Landers v. State, 550 S.W.2d 272, 280 (Tex.Crim.App.1977) (op. on reh’g); Webb v. State, 533 S.W.2d 780, 784 n. 2 (Tex.Crim.App.1976); see also McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (stating there is no constitutional right to hybrid representation).