Osorio-Lopez v. State

Full title: EDWIN ANTONIO OSORIO-LOPEZ, Appellant v. THE STATE OF TEXAS

Court: Court of Criminal Appeals of Texas

Date published: Jun 29, 2022

No. PD-0354-21 (Tex. Crim. App. Jun. 29, 2022)

Opinion

PD-0354-21 PD-0355-21

06-29-2022

EDWIN ANTONIO OSORIO-LOPEZ, Appellant v. THE STATE OF TEXAS

HERVEY, J.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS UPSHUR COUNTY

HERVEY, J., delivered the opinion of the Court in which RICHARDSON, NEWELL, WALKER, SLAUGHTER, and MCCLURE, JJ., joined. KELLER, P.J., and YEARY and KEEL, JJ., concurred.

OPINION

HERVEY, J.

The Court of Criminal Appeals granted review to determine whether the court of appeals erred when it held that a criminal defendant can never waive the right to counsel at a retrospective competency hearing and proceed pro se. We conclude that it erred in reaching the self-representation issue because the trial court did not deny Appellant's request to represent himself; Appellant was permitted to proceed pro se. Therefore, the issue is not whether Appellant had a right to self-representation at a retrospective competency hearing but whether Appellant was competent to waive counsel and whether he voluntarily, knowingly, and intelligently did so after asserting his desire to represent himself.¹ Accordingly, we will reverse the judgment of the court of appeals and remand for the court of appeals to undertake the necessary analysis in the first instance.

1 The issue addressed by the court of appeals would have been squarely presented if the trial court had denied Appellant's request to represent himself.

BACKGROUND

a. Pretrial & Trial

Edwin Antonio Osorio-Lopez, Appellant, was accused of unauthorized use of a motor vehicle and evading arrest in November 2017. When he appeared in court to plead guilty, he changed his mind and decided to go to trial and represent himself. Before the bench trial began, the attorneys and interpreter approached the trial court with concerns about Appellant's mental health.² The trial court appointed an expert who found Appellant incompetent to stand trial, and the trial court signed an order committing Appellant to Rusk State Hospital for no more than 120 days. During that commitment, the prosecutor obtained an indictment for aggravated assault with a deadly weapon after learning that Appellant had thrown a food tray at a guard while incarcerated awaiting trial. Appellant's competency was restored using medication, and he was remanded to answer the charges against him.

2 The judge had an extended conversation with Appellant to determine whether Appellant's competency needed to be evaluated. During that discussion, the judge explained the right to counsel, how the pretrial and trial process worked, and the dangers and disadvantages of self-representation.

Once pretrial proceedings began again, trial counsel filed a motion to withdraw, citing an inability to communicate with Appellant. The trial judge denied the motion. About a week later, trial counsel asked for a continuance to reevaluate Appellant's competency. The trial judge denied that motion also. The State proceeded on the charges for evading arrest and aggravated assault with a deadly weapon,³ and Appellant was convicted. The jury sentenced him to 10 years' confinement and fined him $10,000 for evading arrest and sentenced him to 20 years' confinement and fined him $10,000 for the aggravated assault. The sentences were set to run concurrently.

3 The State declined to pursue the charge for unauthorized use of a motor vehicle once it obtained convictions for evading arrest and aggravated assault with a deadly weapon.

b. Appeal & Retrospective Competency Trial

Appellant appealed and argued that the trial court abused its discretion when it denied his motion for continuance and that the evidence was legally insufficient to prove that the food tray was a deadly weapon. The court of appeals agreed with Appellant that the trial court abused its discretion and abated the appeal for the trial court to hold a retrospective competency hearing. The court of appeals declined to reach the legal sufficiency issue. On retrospective abatement, the trial court found that holding the retrospective hearing was feasible, and it agreed to have Appellant's present competency evaluated again before holding the hearing. Appellant was found to be competent again, and the retrospective competency hearing was held a few months later, wherein he represented himself at the hearing. The following exchange occurred regarding Appellant's waiver of counsel and admonishments about proceeding pro se,

THE COURT: Is [Appellant] ready to proceed?

[DEFENSE COUNSEL]: Your Honor, can I -- can I briefly ask my client whether he wants to proceed with me or without me?

THE COURT: Yes, sir.

[DEFENSE COUNSEL]: [Appellant], will you please state your name?

[APPELLANT]: (Through interpreter) My name is Edwin Antonio Lopez.

[DEFENSE COUNSEL]: You understand that I was your trial counsel?

[APPELLANT]: Yes, I understand you were my present attorney but I had a change of attorney when he said the last court hearing when I was with the other attorney that he was going to leave when the other one returned. So my attorney sent me the last letters. And my attorney, doctor, judge told me that I was competent to be in court, to the rule of the court.

[DEFENSE COUNSEL]: Would you like for me to ask questions of the State's witness or are you wanting to ask the questions yourself?

[APPELLANT]: I want to be my own judge, my own attorney to listen to the rules to see if I'm competent for that to return under oath.

[DEFENSE COUNSEL]: That's all the questions I have, Your Honor.

[RCH PROSECUTOR]: Your Honor, may we approach just briefly with counsel, please?

THE COURT: Yes.

(Bench conference off the record.)

THE COURT: [Appellant], do you understand that you have the right to have an attorney present with you?

[APPELLANT]: I lost him to see who I could - I'm going to be representing myself.

THE COURT: Do you want to represent yourself?

[APPELLANT]: Yes.

THE COURT: All right. That's fine.

The trial court subsequently found that Appellant was competent when he was tried for evading arrest and aggravated assault with a deadly weapon. The court of appeals then reinstated the appeal, affirmed the ruling of the trial court denying the motion for continuance, and held that the evidence was legally sufficient to show that the food tray was a deadly weapon. See Osorio-Lopez v. State, Nos. 06-18-00197-CR & 06-18-00198 (Tex. App.-Texarkana Mar. 27, 2020, no pets.) (withdrawn).

c. Rehearing

Appellant filed a motion for rehearing and asked for an opportunity to develop the record about the retrospective competency hearing and to raise possible points of error. The court of appeals granted Appellant's motion, withdrew its opinions and judgments, and the parties filed briefs. Relevant to this case, Appellant argued that defendants cannot waive counsel at a retrospective competency hearing and that even if it was possible to do so, his waiver was ineffective because it was not knowing, voluntary, or intelligent. He pointed out that "[t]here was no substantive examination of [Appellant] to see if he understood what was going on" and that "[t]here were no inquiries as to whether [Appellant] understood what a competency hearing was or whether he understood any of the consequences of self-representation. The State argued that the issue was not whether Appellant was denied the right to counsel, but whether Appellant properly asserted his right to self-representation, and it contended that the record supports Appellant's waiver of counsel.

The court of appeals held that defendants do not have a right to self-representation at a retrospective competency hearing. See Osorio-Lopez v. State, 629 S.W.3d 487, 493 (Tex. App.-Texarkana 2021). It declined to determine whether Appellant waived counsel and to address the sufficiency of the trial court's self-representation admonishments. Id. at 493. In reaching its conclusion, the court of appeals analyzed federal cases in which courts have held that defendants whose present competency is in question cannot waive the right to counsel, and it said that it found that logic compelling even though this case is about whether Appellant was previously competent, not whether he was competent at the retrospective competency hearing. Id. (citing United States v. Ross, 703 F.3d 856, 869 (6th Cir. 2012); United States v. Zedner, 193 F.3d 562, 567 (2d Cir. 1999) (per curiam); United States v. Klat, 156 F.3d 1258, 1263 (D.C. Cir. 1998); United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990)).

d. Discretionary Review

The State Prosecuting Attorney (SPA) filed a petition for discretionary review, asking whether a defendant must be represented by counsel (i.e., cannot waive the right to counsel) when the defendant, who is presumed competent, wants to proceed pro se at a retrospective competency hearing. It argues, among other things, that a defendant can waive the right to counsel at a retrospective competency hearing if the defendant is presently competent and waives the right voluntarily, knowingly, and intelligently. It further argues that Appellant's waiver was effective because he was presumed competent once his competency was restored under Article 46B.003(b) of the Texas Code of Criminal Procedure, he had been found competent again before the retrospective competency hearing, and no evidence came to light after that finding that would call the finding into question. It concludes that, the record supports a conclusion that Appellant's waiver was intelligent, knowing, and voluntary because the hearing transcript shows that Appellant was not acting bizarrely or saying irrational things, even if his statements or questions were not carefully articulated or precisely on-point.

Appellant argues that, even if the court of appeals was mistaken in creating a per se rule, the trial court nonetheless erred because Appellant was not given any substantive admonishments as required under Faretta v. California, 422 U.S. 806 (1975) and Article 1.051(f) of the Texas Code of Criminal Procedure.⁴ He also argues that articles 1.051 and 46B.006(a) required that he be appointed counsel. We granted the SPA's petition for discretionary review.

4 Appellant makes this argument for the first time on discretionary review. Turner v. State, 443 S.W.3d 128, 129 n.1 (Tex. Crim. App. 2014) (declining to address Appellant's argument raised for the first time on discretionary review). We note, however, that a violation of Article 1.051(g) is harmless so long as a reviewing court can examine the record and assess whether "the defendant was made aware of the dangers and disadvantages of the self-representation." See Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992).

APPELLANT'S ARTICLES 1.051(a), (c) & 64B.006 ARGUMENTS

Appellant is mistaken that articles 1.051 and 46B.006 require defendants to be represented by counsel at a retrospective competency hearing. Article 1.051(a) states in part that "[a] defendant in a criminal matter is entitled to be represented by counsel in an adversarial hearing." Tex. Code Crim. Proc. art. 1.051(a). Article 1.051(c) states in part that, "An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation." Id. art. 1.051(c). These provisions, however, address when defendants are entitled to the appointment of an attorney. They have no bearing on whether defendants can waive the right to counsel and proceed pro se. See id. art. 1.051(f) (permitting a defendant to waive counsel if the waiver is voluntary, intelligent, and in writing), 1.051(g) (stating that the trial court shall advise a defendant about the dangers and disadvantages of self-representation among other things when the defendant wishes to waive counsel and represent himself). Article 46B.006(a) states that "[a] defendant is entitled to representation by counsel before any court-ordered competency evaluation and during any proceeding at which it is suggested that the defendant may be incompetent to stand trial." Id. art. 46B.006(a). Article 46B.006(b) requires the court to appoint an attorney "as necessary to comply with Subsection (a)." Id. art. 46B.006(b).

CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION

It is well established that every criminal defendant has a constitutional right to the assistance of counsel and the constitutional right to self-representation. U.S Const. amend. VI; Tex. Const. art. I § 10; Faretta, 422 U.S. at 835. "The right to self-representation and the assistance of counsel are separate rights depicted on the opposite sides of the same Sixth Amendment coin. To choose one obviously means to forego the other." Purnett, 910 F.2d at 54; see Martin v. State, 630 S.W.2d 952, 953 (Tex. Crim. App. 1982). "While the right to counsel is in force until waived, the right of self-representation does not attach until asserted." Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982); see Williams v. State, 252 S.W.3d 353, 356, 358 (Tex. Crim. App. 2008). Assertion of the right to self-representation must be clear and unequivocal. See Faretta, 422 U.S. at 835. "When a criminal defendant chooses to waive his right to counsel and represent himself, the waiver should be made 'knowingly and intelligently,' and he should be warned of the 'dangers and disadvantages' accompanying such waiver" so that "the record will establish that 'he knows what he is doing and his choice is made with open eyes." Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002); Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. App. 1997) (citing Faretta, 422 U.S. at 834-36) (decision to waive counsel in favor of self-representation is "knowing and intelligent" if "it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation"). "'[C]ourts indulge every reasonable presumption against waiver' of fundamental constitutional rights ....." Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Whether a waiver of counsel was effective depends on the totality of the circumstances, which includes considering "the background, experience, and conduct of the accused." Id. "An invalid waiver waives nothing." Williams, 252 S.W.3d at 358. In such case, the right to counsel remains in effect, and a defendant is entitled to counsel. See id. (allowing a defendant to represent himself "without a valid waiver of the right to counsel" denies that defendant of the right to counsel). A complete denial of the constitutional right to counsel is a structural defect, and "prejudice is presumed because the trial has been rendered inherently unfair and unreliable." Id. at 357.

"The record must reflect that the trial court thoroughly admonished the defendant." Collier, 959 S.W.2d at 626 n.8 (citing Faretta, 422 U.S. at 834-36; Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984)). For example, defendants must be aware "that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights." Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988). But "a trial court need follow no 'formulaic questioning' or particular 'script' to assure itself that an accused who has asserted his right to self-representation does so with eyes open." Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). And a defendant need not have the skill and experience of a lawyer "to competently and intelligently choose self-representation," Faretta, 422 U.S. at 835. The focus is on whether the defendant is competent to choose to proceed pro se, not whether he is equipped to represent himself at trial. Godinez v. Moran, 509 U.S. 389, 400-01 (1993).

A defendant's constitutional right to self-representation is not absolute. Indiana v. Edwards, 554 U.S. 164, 178 (2008). A defendant must be competent before he can knowingly and intelligently waive his right to counsel and represent himself. Godinez, 509 U.S. at 400. The United States Supreme Court has held that the competency to waive the right to counsel is the same as the "competency to stand trial" standard: Whether the defendant has (1) "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and has (2) "a rational as well as factual understanding of the proceedings against him." Id. at 396 (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)), 399. States may adopt a higher standard, but they are not obligated to do so. See Edwards, 554 U.S. at 178 ("[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."). Texas has not adopted a higher standard. Instead, we have said that "the trial judge is in the best position to make the decision of whether a mentally ill defendant is competent to proceed pro se." Chadwick v. State, 309 S.W.3d 558, 563 (Tex. Crim. App. 2010) (citing Edwards, 554 U.S. at 177).

CONCLUSION

Having concluded that Appellant's statutory arguments regarding Article 1.05(a), (c) and Article 46B.006 are without merit, the next questions are whether Appellant was competent to waive counsel, and if so, whether he did so voluntarily, knowingly, and intelligently. Part of the latter inquiry requires examining the self-representation warnings. If they are insufficient, we have suggested that error might be subject to a harm analysis. See Williams, 252 S.W.3d at 358 n.38. We decline to address these issues in the first instance, however, because this Court reviews only decisions of the courts of appeal unless "the proper resolution of the remaining issue is clear . . .," Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013), which is not the case here. We reverse the judgment of the court of appeals and remand the cause.