Opinion
No. 05-18-01116-CR
03-25-2020
BRANDON CLYDE KING, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1776511-M
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Schenck
Appellant Brandon Clyde King appeals the trial court's judgment convicting him of Murder. During voir dire and opening statement, King represented himself, aided by standby counsel. Thereafter, appellant was represented by counsel. The jury found appellant guilty and assessed his punishment at life imprisonment and a fine of $10,000. In his sole issue, appellant contends the trial court did not adequately advise him of the dangers and disadvantages of self-representation and ensure that he voluntarily, intelligently, and knowingly waived his right to counsel. We conclude the trial court was not required to advise appellant of the dangers and disadvantages of self-representation and ensure a voluntary, intelligent, and knowing waiver of his right to counsel because during the portion of the trial in which appellant represented himself he had standby counsel at this disposal. We affirm the trial court's judgment. Because all issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Following appellant's arrest and arraignment for the underlying offense, the trial court appointed trial counsel to represent him. During a pretrial hearing, appellant's counsel represented to the trial court that appellant is a high school graduate, he can read and write English, he has never been diagnosed with a mental illness, and was not under the effect of any medication. Within a month of the pretrial hearing, appellant filed a pro se motion to dismiss his appointed counsel. He also sent a letter to the trial court explaining he had filed a grievance against his attorney and thought there was a conflict of interest. In the same letter, appellant asked to be released on a personal recognizance bond, and enclosed a completed personal data sheet in support of his request. The date sheet listed appellant's birthday as "11-04-1984."
Prior to the commencement of trial, appellant announced to the court that he wished to represent himself. Before ruling on the issue of self-representation, the court inquired about appellant's educational background, whether he was familiar with the rules of evidence and procedure, and whether he thought he could do a better job than his attorney. Appellant responded that he had completed two years of college, was not at all familiar with the rules of evidence and procedure, and that he was not saying he could do a better job than his lawyer, just that he would rather put his faith in himself. The court explained to appellant that if he persisted in self-representation, the court could not assist him in the trial and that he would not be given any special consideration, but he would be held to the same standards of conduct as an attorney. The only protection the court would afford appellant would be to prevent the State from overstepping its boundaries. Appellant indicated that he understood.
The court found appellant competent to proceed pro se and granted appellant's demand for self-representation. The court ordered counsel to remain in the courtroom for the entire trial as standby counsel to assist appellant as needed. Just before the commencement of voir dire, the court warned appellant he would be at a disadvantage because he was not an attorney, had not studied the law, and was not familiar with either the rules of evidence or the code or criminal procedure. Appellant indicated he understood and wished to proceed to represent himself.
Appellant conducted voir dire and made an opening statement. Standby counsel was engaged throughout that process. Thereafter, appellant asked the trial court to allow counsel to take over the trial. The trial court granted appellant's request. Appellant's counsel represented appellant for the remainder of the trial.
Standby counsel asked for juror numbers and helped calculate the strike zone. He also helped appellant address an evidentiary matter, respond to the State's offer of an exhibit for record purposes, and swear in a witness.
DISCUSSION
Federal and state law guarantee a criminal defendant the right to assistance of counsel as well as the right to waive counsel and represent himself. See U.S. CONST. amend.VI & XIV; TEX. CONST. art. I § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05; Faretta v. California, 422 U.S. 806, 818-820 (1975). In Faretta, the U.S. Supreme Court established the independent right of self-representation, in addition to the previously recognized right to waive the assistance of counsel. Faretta, 422 U.S. 806.
A defendant may choose to proceed pro se by exercising his right of self-representation. Eg. TEX. CONST. art. 1 § 10 ("[an accused] shall have the right of being heard by himself . . ."); Faretta, 422 U.S. at 818-820 (1975); Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999). When the right of self-representation was established in Faretta, the Supreme Court stated that "[a]lthough a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation . . ." Faretta, 422 U.S. at 835; accord Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). Once a defendant asserts his right of self-representation, a trial court is obligated to advise the accused of the dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); Williams v. State, 774 S.W.2d 703, 705 (Tex. App.—Dallas 1989, pet. ref'd).
However, when a trial court appoints standby counsel, the admonishments are not required. Newkirk v. State, No. 05-12-00202-CR, 2013 WL 222278, at *2 (Tex. App.—Dallas Jan. 22, 2013, no pet.) (not designated for publication); Walker v. State, 962 S.W.2d 124, 126-27 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd); Robertson v. State, 934 S.W.2d 861, 865-66 (Tex. App.—Houston [14th Dist.] 1996, no pet.); see Maddox v. State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1980) (op. on motion for reh'g) (admonishment required only where defendants represent themselves without assistance of counsel); see also Sumrell v. State, No. 05-09-00238-39-CR, 2010 WL 3123302, at *2 (Tex. App.—Dallas Aug. 19, 2010, pet. ref'd) (not designated for publication). In cases where hybrid representation is allowed or standby counsel is appointed, "no question of waiver of counsel is involved," since counsel remains to assist the defendant, and as a result, there is no true waiver of counsel and no need to admonish the defendant of the dangers and disadvantages of self-representation. See Maddox, 613 S.W.2d at 286.
Consistent with Walker, Robertson, and Maddox, this Court has previously held that when a defendant has standby counsel at his disposal, the trial court is not required to admonish the defendant on the dangers and disadvantages of self-representation. See Bradford v. State, No. 05-14-01610-CR, 2016 WL 326631, at *3 (Tex. App.—Dallas Jan. 27, 2016, pet. ref'd) (mem. op., not designated for publication); Newkirk, 2013 WL 222278, at *2; Sumrell, 2010 WL 3123302, at *2; Blanton v. State, No. 05-05-01060-CR, 2006 WL 2036615, at *1 n.2, 3 (Tex. App.—Dallas July 21, 2006, pet. ref'd) (not designated for publication); Robinson v. State, No. 05-04-00235-CR, 2005 WL 1670626, at *2 (Tex. App.—Dallas July 19, 2005, no pet.) (not designated for publication); Young v. State, No. 05-98-00036-CR, 2000 WL 2676, at *1 (Tex. App.—Dallas Jan. 4, 2000, no pet.) (not designated for publication). When an accused has standby counsel, a hybrid representation occurs, and the accused is not self-representing. Newkirk, 2013 WL 22278, at *2.
We cannot conclude the trial court did not adequately advise appellant of the dangers and disadvantages of self-representation or assess whether appellant voluntarily, knowingly, and intelligently waived his right to counsel because appellant had standby counsel at his disposal and, as a result, the trial court was not required to admonish appellant. We overrule appellant's sole issue.
By cross-issue, the State requests that this Court reform the judgment to speak the truth. Under the entry of "Fine:", the judgment notes "Time Served" and then $10,000. The jury assessed a fine in the amount of $10,000. A trial court has no authority to alter a jury's lawful verdict on punishment. Ette v. State, 559 S.W.3d 511, 513 (Tex. Crim. App. 2018). A life sentence with a $10,000 fine is a lawful punishment for murder. See TEX. PENAL CODE ANN. §§ 12.32, 19.02(c).
We have the authority to modify the trial court's judgment to make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we sustain the State's cross-issue and modify the trial court's judgment to delete the notation "Time Served" in connection with the fine.
CONCLUSION
As modified, we affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47
181116F.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1776511-M.
Opinion delivered by Justice Schenck. Justices Osborne and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
Delete the notation "Time Served" in connection with the fine. As REFORMED, the judgment is AFFIRMED. Judgment entered this 25th day of March, 2020.