Robert Curtis Goffney v. State of Texas--Appeal from 420th District of Nacogdoches County

Opinion filed September 6, 2007

In The

Eleventh Court of Appeals

__________

   Nos. 11-06-00099-CR & 11-06-00100-CR

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ROBERT CURTIS GOFFNEY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 420th District Court

Nacogdoches County, Texas

Trial Court Cause Nos. F132412005 & F132422005

O P I N I O N

These appeals arise from two indictments for aggravated robbery. The indictment in Cause No. 11-06-00099-CR charged appellant with committing the offense of aggravated robbery against Derrick Crawford. The indictment in Cause No. 11-06-00100-CR charged appellant with committing the offense of aggravated robbery against Weldon Beard. The trial court consolidated the two charges after granting appellant=s motion to consolidate. The jury convicted appellant of both offenses and sentenced him to confinement in the Institutional Division of the Texas Department of Criminal Justice for terms of fifty-five years on each conviction, with the sentences to run concurrently. Appellant challenges his convictions on appeal in a single brief that presents one issue. He contends that the trial court erred in admonishing him about the risks of self-representation as required by Faretta v. California, 422 U.S. 806 (1975). We affirm.

Factual Background

We note at the outset that appellant does not challenge the sufficiency of the evidence supporting his convictions. The case was originally scheduled for trial on May 2, 2005. As of that date, the indictments on file did not contain any enhancement allegations regarding appellant=s previous felony convictions. Accordingly, the applicable confinement range for each of the two charges was five to ninety-nine years or life. Tex. Penal Code Ann. '' 12.32(a), 29.03(b) (Vernon 2003). Appellant informed the trial court immediately prior to jury selection that he wanted to dismiss his court-appointed attorney. During the trial court=s consideration of the dismissal motion, the prosecutor informed the trial court and appellant that, if the trial was postponed as a result of appellant=s motion to dismiss counsel, the State would seek to reindict appellant with an indictment containing enhancement allegations. The trial court specifically warned appellant that new indictments would have the effect of raising the minimum term of confinement from five to twenty-five years. Tex. Penal Code Ann. ' 12.42(d) (Vernon Supp. 2006). Appellant responded to the trial court=s warning by stating that the State=s intention to reindict him did not matter to him based upon the State=s plea offer.[1]

After the trial court dismissed appellant=s initial trial counsel at the May 2, 2005, hearing, appellant advised the trial court that he wanted to represent himself. The trial court subsequently conducted a Faretta hearing in response to appellant=s request. The trial court went to great lengths to warn appellant of the dangers of representing himself and to assess his competency to defend himself at trial. The trial court specifically warned appellant a second time that the State=s intention to reindict him would have the effect of increasing the minimum term of confinement from five to twenty-five years. The May 2, 2005, hearing concluded with appellant informing the court that he had changed his mind about representing himself and that he wanted an opportunity to retain counsel. The trial court gave appellant four weeks to find an attorney.

The next pretrial hearing occurred on August 15, 2005. The hearing began with an announcement by the trial court that appellant was not able to retain an attorney to represent him after the May 2, 2005, hearing. The trial court stated further that it had appointed another attorney to represent appellant during the interval between the two hearings. Appellant informed the trial court that he wanted to represent himself at trial with the newly appointed attorney serving in an advisory capacity to him. The trial court then conducted another lengthy Faretta hearing to warn appellant of the risks of self-representation. At one point during the hearing, the trial court addressed the applicable punishment range. Amended indictments containing enhancement allegations had not yet been filed.[2] Accordingly, the applicable punishment range at the time of the August 15, 2005, hearing was five to ninety-nine years or life. The trial court advised appellant of this punishment range. The trial court additionally warned appellant of the possibility that the State would seek to reindict him. The trial court asked appellant if he had previously been incarcerated. Appellant responded by stating that he had been incarcerated one previous time. Based upon appellant=s response, the trial court advised appellant that he could possibly face a minimum term of confinement of fifteen years.

The August 15, 2005, hearing concluded with the trial court=s announcement that appellant would be permitted to represent himself. The trial court additionally ordered appellant=s newly appointed counsel to serve as standby counsel in order to advise appellant during trial.[3] Lastly, the trial court advised appellant that, if he changed his mind about representing himself, the court would permit standby counsel to take over his defense.

Appellant=s trial began on January 9, 2006. The proceedings started with the trial court confirming appellant=s desire to represent himself at trial. The trial court explained the appointed counsel=s advisory role as standby counsel. Appellant also executed the statutory waiver of counsel form set out in Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005). The case then proceeded with jury selection. Appellant actively participated in the voir dire examination of the prospective jurors. He continued his self-representation during the direct testimony of the State=s first witness, Detective Ryan Ball of the Nacogdoches Police Department. Appellant subsequently decided that he no longer wanted to represent himself after he began his cross-examination of Detective Ball. Appellant=s standby counsel then assumed control of appellant=s defense for the remainder of the trial.

Analysis

In his sole issue in these appeals, appellant complains that the trial court=s warnings against self-representation were insufficient in two material respects. First, appellant contends that the admonishments given during the May 2, 2005, hearing were improper because his appointed counsel had been discharged prior to the Faretta hearing. Secondly, appellant contends that the admonishments given during the August 15, 2005, hearing were insufficient because the trial court did not warn of the possibility that he might be facing a minimum term of confinement of twenty-five years. In this regard, appellant contends that the trial court should have conducted an additional Faretta hearing after he was reindicted. We conclude that any error by the trial court in giving warnings required by Faretta were of no consequence because appellant was represented by counsel.

In all criminal prosecutions, the accused has a right to the assistance of counsel for his defense. U.S. Const. amend. VI. A defendant in a criminal proceeding also has a Sixth Amendment right to self-representation rather than being represented by counsel. Faretta, 422 U.S. at 819. To choose self-representation competently and intelligently, the defendant should be made aware of the dangers and disadvantages of self-representation so that the record will establish that the defendant Aknows what he is doing and his choice is made with his eyes open.@ Faretta, 422 U.S. at 835. The record must contain proper admonishments concerning self representation and necessary inquiries of the defendant, so that the trial court may make an assessment of his knowing exercise of the right to defend himself. Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992). However, the trial court is not required to follow a particular script of questions and warnings to establish a knowing and intelligent waiver. See Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984).

Some Texas courts have held that the admonishments against self-representation are not required in a case where standby counsel is appointed even if the standby counsel does not participate at trial. Walker v. State, 962 S.W.2d 124, 126 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d); Robertson v. State, 934 S.W.2d 861, 864, 866 (Tex. App.CHouston [14th Dist.] 1996, no pet.). They base this holding on the rationale that a defendant does not waive his right to the assistance of counsel if he has standby counsel at his disposal. Appellant=s situation is different because he invoked the participation of standby counsel during trial.

If the defendant invokes the participation of standby counsel, the representation becomes hybrid, which has been described as Apartially pro se and partially by counsel.@ Walker, 962 S.W.2d at 126 (quoting Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977)). The Faretta self representation admonishments are not required in a case of hybrid representation because there is no waiver of counsel. See Maddox v. State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1980); Phillips v. State, 604 S.W.2d 904, 908 (Tex. Crim. App. 1979). Accordingly, appellant=s sole issue is overruled.

This Court=s Ruling

The judgments of the trial court are affirmed.

TERRY McCALL

JUSTICE

September 6, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]In a prior pretrial hearing, appellant=s initial trial counsel advised him that the State had offered to recommend two sentences of thirty years confinement to run concurrently if he pleaded guilty to the offenses. Counsel warned appellant on the record of the possibility that the State might seek to increase the minimum term of confinement from five to twenty-five years if he did not accept the plea offer.

[2]Amended indictments alleging two prior felony convictions were subsequently filed on August 26, 2005.

[3]The term Astandby counsel@ describes situations when, in response to a defendant=s request for self representation, the trial court instead allows an attorney to be available to advise the defendant and participate in the case, or not, as requested by the defendant. Walker v. State, 962 S.W.2d 124, 126 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d); see Faretta, 422 U.S. at 834 n.46.