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finding that defendant who told trial court he did not agree with counsel's strategy and did not want that attorney representing him, but who made no request that he be allowed to represent himself without counsel, failed to assert his right to proceed pro se
Summary of this case from Livingston v. StateOpinion
Nos. 05-04-01289-CR, 05-04-01290-CR
Opinion Filed June 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 282nd District Court, Dallas County, Texas, Trial Court Cause No. F03-58016-Ws; F03-58480-IS. Affirmed.
Before Justices MOSELEY, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
In a combined proceeding, a jury convicted Destry Earl Thomas of possession of cocaine in an amount of less than one gram and possession of cocaine in an amount of more than one gram but less than four grams. Thomas pled not true to two enhancement paragraphs in both indictments. The jury found the enhancement paragraphs true and assessed punishment at twenty years' confinement in the less than one gram case and at fifty years' confinement in the one to four grams case. The trial court ordered the sentences to run concurrently. Thomas appeals raising ten points of error. He contends: the State improperly impeached him with a prior conviction for robbery; the trial court refused his right to self-representation under the federal and state constitutions; the evidence is legally and factually insufficient to show he possessed cocaine; the trial court erred by refusing to grant a continuance; the evidence is legally and factually insufficient to show that adulterants and dilutants did not effect the controlled substance; the trial court erred in the definition of adulterant and dilutant given in the jury charge; and the trial court erred in admitting a photograph of the victim in Thomas's prior sexual assault conviction during the punishment phase. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgments. In his first point of error, Thomas argues the trial court abused its discretion by permitting the State to impeach him with a prior felony conviction for robbery. He contends the probative value of the prior robbery conviction did not outweigh its prejudicial effect. Tex. R. Evid. 609(a). Under rule 609, evidence of a prior felony conviction is admissible for impeachment if the court determines the probative value of admitting the evidence outweighs the prejudicial effect to a party. Id. We review the trial court's decision to admit evidence of a prior conviction for an abuse of discretion. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992). A trial court abuses its discretion if its decision lies outside the zone of reasonable disagreement. Id. In weighing the probative value of the prior conviction and its prejudicial effect, we apply the non-exclusive list of factors recognized in Theus: (1) the impeachment value of the prior conviction; (2) the temporal proximity of the prior conviction to the charged offense and the witness's subsequent history; (3) the similarity between the prior conviction and the charged offense; (4) the importance of the witness's testimony; and (5) the importance of the witness's credibility. Id. The record reflects that Thomas was convicted of robbery in 1993 and sentenced to ten years' confinement. He admitted in his testimony that he was released from confinement for the robbery conviction in 2003, a few months before he was arrested on the possession charges. Robbery involves theft, which is considered a crime of deception, but also involves the threat or use of violence. See Jackson v. State, 50 S.W.3d 579, 592 (Tex.App.-Fort Worth 2001, pet. ref'd). The first factor weighs against admission. The conviction was a little more than ten years before the charged offenses. However, Thomas was released from confinement for the robbery conviction only a short time before his arrests on the possession offenses. This factor weighs in favor of admission. The crimes of robbery and possession of cocaine are dissimilar, which weighs in favor of admission. See Theus, 845 S.W.2d at 881 ("If . . . the past crime and the charged crime are similar, the third factor will militate against admission."). The last two factors are related and favor admissibility in this case. Thomas relied on his own testimony to support his defense and his credibility was important to the case. Thus, based on the record and the Theus factors, we cannot say the trial court abused its discretion in allowing the impeachment evidence. We overrule Thomas's first point of error. In his second and third points of error, Thomas argues the trial court erred by not allowing him to represent himself during the guilt/innocence phase of the trial in violation of his rights under the federal and state constitutions. Because Thomas does not provide separate argument and authority for his arguments under the Texas Constitution, he has waived his third point. Rayford v. State, 125 S.W.3d 521, 534 (Tex.Crim.App. 2003); Heitman v. State, 815 S.W.2d 681, 690 n. 22 (Tex.Crim.App. 1991). We overrule Thomas's third point of error. Under the Sixth and Fourteenth Amendments, a criminal defendant has the right to waive the right to counsel and represent himself if the decision to do so is made intelligently, knowingly, and voluntarily. Faretta v. California, 422 U.S. 806, 835 (1975); Oliver v. State, 872 S.W.2d 713, 715 (Tex.Crim.App. 1994). Because the right to assistance of counsel is fundamental to our adjudicatory system, its waiver is not lightly inferred. Oliver, 872 S.W.2d at 715; Fulbright v. State, 41 S.W.3d 228, 234 (Tex.App.-Fort Worth 2001, pet. ref'd). The right to self-representation does not attach until it is clearly and unequivocally asserted. Funderburg v. State, 717 S.W.2d 637, 642 (Tex.Crim.App. 1986). The record reflects that Thomas was not happy with his court-appointed counsel at the pretrial hearing. He told the trial court he did not agree with his counsel's strategy and did not want that attorney representing him. He did not, however, request to represent himself without counsel. The trial court noted that a prior appointed attorney had been dismissed at Thomas's request and stated the case was ready to proceed to trial with his current counsel. There are indications in the record that Thomas wanted to delay the trial. However, the trial court ruled that "Your request . . . not to go [to] trial with this lawyer is — is overruled." An indigent defendant does not have the right to choose a particular appointed counsel, and unless he waives his right to counsel and chooses to represent himself, or shows adequate reasons for the appointment of new counsel, he must accept court-appointed counsel. Thomas v. State, 550 S.W.2d 64, 68 (Tex.Crim.App. 1977); Burks v. State, 792 S.W.2d 835, 838 (Tex.App.-Hous. [1st Dist.] 1990, pet. ref'd). Further, personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). A trial court has no duty to search for counsel agreeable to the defendant. Id. Thomas did not invoke his right to represent himself at the pretrial hearing and the trial court did not err in refusing to dismiss Thomas's counsel. Just before his attorney was to begin voir dire, Thomas told the court he did not want his counsel to speak on his behalf and that Thomas wanted to speak on his own behalf. He also talked about his rights, including the right to represent himself if he was not comfortable with his attorney. Thomas, however, did not indicate that he wanted to waive his right to appointed counsel and proceed without an attorney. After voir dire, the trial court questioned Thomas about whether he was requesting to proceed without counsel. The trial court made clear that the trial would proceed either with Thomas representing himself or with his appointed counsel representing him. The trial court offered to allow Thomas an opportunity to put in the record anything Thomas felt was not done or should have been done on his behalf. Thomas agreed to proceed with appointed counsel under those terms. We conclude Thomas did not clearly and unequivocally assert his right to self-representation during the guilt/innocence phase of the trial. See Fundergerg, 717 S.W.2d at 642. We overrule Thomas's second point of error. In his fourth and fifth points of error, Thomas attacks the legal and factual sufficiency of the evidence to establish that he knowingly and intentionally possessed a controlled substance. We apply the appropriate standard of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (legal sufficiency); see also Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). The State was required to prove beyond a reasonable doubt that Thomas intentionally or knowingly possessed cocaine in an amount less than one gram in the first case and in an amount of one gram or more but less than four grams in the second case. Tex. Health Safety Code Ann. § 481.115(b), (c) (Vernon 2003). The State must prove Thomas exercised care, control, or management over the cocaine and knew it was contraband. See Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987). Because Thomas was not in exclusive possession of the place where the contraband was found, the State must affirmatively link him to the contraband. See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). Among the factors to be considered in determining whether an affirmative link exists are: (1) the accused's proximity to and accessibility to the contraband; (2) the quantity of the contraband found; (3) whether the contraband was in plain view; (4) whether the accused was present at the time of the search; and (5) whether the conduct of the accused with respect to the drugs indicates his knowledge and control. See Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Pettigrew v. State, 908 S.W.2d 563, 571, (Tex.App.-Fort Worth 1995, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except his guilt. See Brown, 911 S.W.2d at 748. The record indicates that on December 1, 2003, a Dallas police detective was investigating possible drug activity outside a local bar. Detective Christopher Hauffe parked in a parking lot across the street from the bar and watched the area. Around 2:50 p.m., Hauffe, using binoculars, saw a white female approach Thomas, speak to him, and give him what appeared to be money. Thomas then reached into his pants and handed the woman what appeared to be drugs. Hauffe radioed for uniformed officers to investigate, and observed Thomas walk to the back of the bar and sit on a milk crate with four or five other individuals. Officer Richard Hunt arrived and saw Thomas sitting on a milk crate with his back to the officer. As Hunt approached, he saw Thomas stand up and throw down a white paper bag. Hunt retrieved the bag, which was one to two feet away from Thomas, and found a rock-like substance in the bag that he believed to be cocaine. Hunt also found a small rock-like substance on the ground next to the bag. When officers searched Thomas, they found a blue bag attached by a string to his underwear which contained $120.00 and a white powder residue. Thomas testified that it is possible that someone approached him behind the bar on December 1 to ask for change, but denied that anyone approached him to buy drugs. He said he was "hanging out" with other homeless people behind the bar. Thomas admitted he had just finished smoking marijuana before the police arrived, but denied possessing any cocaine. On December 15, Hauffe was patrolling the same area and saw Thomas standing near a coin laundry across the street from the bar. Hauffe parked nearby, radioed to other officers, and observed Thomas. Hauffe saw a female approach and talk to Thomas. Thomas then walked along the side of the building near some exhaust pipes, picked up a brown paper bag, and returned. The female handed Thomas money and Thomas handed her something out of the bag. She immediately put it in her mouth and left. Thomas returned the bag to the area near the pipes. No one else was in the area near the bag. Hauffe and another detective observed two more drug transactions. Hunt arrived and detained Thomas. Hauffe directed Hunt to the location of the bag. Hunt retrieved the bag and found what appeared to be several rocks of cocaine. Thomas testified that on December 15 he was hanging out with associates at the coin laundry. One of his associates placed a bag of groceries on the side of the building and went inside to use the restroom. The police then arrived and began questioning Thomas. Thomas denied walking to the exhaust pipes along the side of the building and picking up a bag. He denied possessing or selling cocaine. Thomas argues the evidence is insufficient in both cases because there were other people in the area, the drugs were not in plain view, he did not have contraband on his person, he did not flee, and he was not in close proximity to the bag retrieved on December 15. There is, however, other evidence linking Thomas to the drugs found in the bags. On both occasions, police observed him making transactions consistent with narcotics sales. On December 1, they observed him throw down a bag containing cocaine; the bag was retrieved from within a few feet of Thomas; and Thomas admitted he had smoked marijuana before police arrived. On December 15, police observed Thomas retrieve and return a bag containing cocaine several times; police did not see anyone other than Thomas approach or touch the bag in which the drugs were found. Having considered all of the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found the elements of the two offenses beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Margraves, 34 S.W.3d at 917. Further, reviewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determinations or that the proof of guilt is greatly outweighed by contrary proof. See Zuniga, 144 S.W.3d at 484-85; Johnson, 23 S.W.3d at 10-11. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We overrule Thomas's fourth and fifth points of error. In his sixth point of error, Thomas argues the trial court abused its discretion in denying his oral motion for continuance. During the punishment phase, Thomas asserted his right to self-representation and was allowed to represent himself after the trial court advised him of the dangers and disadvantages of doing so. Thomas made an oral motion for continuance in order to call his witnesses and present his evidence. The trial court denied the motion. Thomas did not challenge the denial of the motion for continuance in his motion for new trial. The code of criminal procedure provides that "[a] criminal action may be continued on the written motion . . . of the defendant, upon sufficient cause shown." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). A motion for continuance that is not in writing preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex.Crim.App. 1999). To preserve error in the denial of a motion for continuance, an appellant must make a motion for a new trial raising the denial of the motion for continuance supported by sworn evidence that the absent witness would actually testify to the facts set out in the motion for new trial. Varela v. State, 561 S.W.2d 186, 191 (Tex.Crim.App. 1978); Franklin v. State, 858 S.W.2d 537, 539 (Tex.App.-Beaumont 1993, pet. ref'd). We conclude Thomas did not preserve error and overrule his sixth point of error. In points seven and eight, Thomas contends the evidence is legally and factually insufficient to prove that the adulterants and dilutants in the substance did not effect the chemical composition of the alleged controlled substances. In point ten, he contends the trial court submitted an improper definition of adulterant and dilutant to the jury. Thomas relies on Hickman v. State, 835 S.W.2d 244, 247 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd), for each of these points. Hickman and the authorities it relied on were superseded by statute in 1994. See Warren v. State, 971 S.W.2d 656, 660 (Tex.App.-Dallas 1998, no pet.). The State is not required to prove that adulterants and dilutants were added to the controlled substance with the intent to increase the bulk or quantity or that the adulterants and dilutants did not affect the chemical activity of the controlled substance. See Tex. Health Safety Code Ann. § 481.002(49) (Vernon Supp. 2005); Melton v. State, 120 S.W.3d 339, 344 (Tex.Crim.App. 2003) ("The Legislature did away with the requirement for this sort of hyper-technical analysis when it amended the definition of `adulterant or dilutant.'"). The trial court instructed the jury with the proper statutory definition of adulterant or dilutant. We overrule points seven, eight, and ten. In his ninth point of error, Thomas asserts the trial court erred during the punishment phase by admitting a photograph of the victim in his prior sexual assault conviction. The State offered a photograph of the victim of the sexual assault alleged in one of the two enhancement paragraphs in the indictments against Thomas. The photograph depicted the victim's face after the assault and showed her face was bruised and her eyes were swollen shut. Thomas objected to the photograph saying, "I do not know that person." The trial court overruled the objection and admitted the photograph. On appeal, Thomas asserts the photograph was inadmissible under evidence rule 403 because its probative value was substantially outweighed by its prejudicial effect. Tex. R. Evid. 403. To preserve error that the trial court erroneously admitted evidence, an appellant must make a proper objection and obtain a ruling. Tex.R.App.P. 33.1; Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). Neither Thomas's objection at trial nor the context of the objection indicate his complaint was based on rule 403. Because Thomas's complaint on appeal does not comport with his objection below, we conclude he failed to preserve this issue for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (point of error on appeal must comport with objection made at trial); Taylor v. State, 55 S.W.3d 584, 585 (Tex. Crim App. 2001) (because appellant's trial objection did not comport with issue raised on appeal, he did not preserve error). We overrule Thomas's ninth point of error. We affirm the trial court's judgments.