SCOTT CURTIS RANDALL, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion issued September 5, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01073-CR
............................
SCOTT CURTIS RANDALL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law
Rockwall County, Texas
Trial Court Cause No. CR05-0029
.............................................................
OPINION
Before Chief Justice Thomas and Justices FitzGerald and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Scott Curtis Randall appeared pro se and pleaded not guilty before a jury to misdemeanor assault involving family violence. The jury found appellant guilty, and the trial court assessed punishment at one year's confinement in jail, probated for two years, and a $1,000 fine. In two issues,   See Footnote 2  appellant contends (1) the record does not reflect the trial court admonished him of the dangers and disadvantages of self-representation, and (2) the trial court erred by admitting hearsay evidence before the jury in violation of appellant's Sixth Amendment right of confrontation.   See Footnote 3 
We affirm the trial court's judgment.
 
Background
 
        Appellant was charged by information, as amended, that he did “intentionally, knowingly, or recklessly cause bodily injury to Kimberly Randall, a family member[,] by slapping her in the face with an open hand.” The charge arose out of appellant's slapping the complainant, his then- wife, during an argument on December 12, 2004. The police were called to the home by Kelsey Hagan, Kim's daughter by a previous marriage. By the time the police arrived, appellant had already left. Later, Kim called the police and told them she did not want to press charges. The police told her that charges would still be filed.   See Footnote 4  Appellant was arrested when he returned to the home the following morning and taken to jail.   See Footnote 5 
        Appellant chose to represent himself at trial. During the February 23, 2005 pretrial hearing, the following took place:
 
[The Court]:
 
This is Cause No. CR05-29 entitled the State of Texas v. Scott Curtis Randall. The State is present and the defendant is present.
 
                        Mr. Randall, you are choosing to represent yourself; is this correct?
 
 
[Appellant]:
 
Yes, sir.
 
 
 
[The Court]:
 
And we're here for pre-trials [sic] today. I don't see that you filed any pre-trial [sic] motions.
 
 
[Appellant]:
 
No, sir, I did not.
 
 
        [The Court]:
 
Okay. So you are waiving any pre-trial [sic] motions. Then we'll be set for jury trial on March 1st at 8:30, and we'll see you then.
 
        [Appellant]:
 
Okay. At what point will you accept evidence, exhibits?
 
        [The Court]:
 
Sir, that's-the thing I want to make sure and absolutely admonish you on is that you understand that if you are going to represent yourself, you absolutely have that right. That's a right that every citizen is afforded; but in doing so, you have to know the Rules of Evidence and the law.
 
 
 
 
 
The Court can't give you any advice on it, and the State can't give you advice on it. No one around here can give you advice on it. That's something that you are going to have to know on your own. But if you do know it and present it at the proper time, the Court will absolutely accept that. But that's something that you are going to need to know between now and then. All right?
 
 
        [Appellant]:
 
Okay. Thank you.
 
        In its case in chief, in addition to the responding police officers, the State called Kim, Kelsey, and Jessie Christoph, Kelsey's boyfriend. Appellant cross-examined the State's witnesses and made objections to some of the testimony. After the State rested, appellant took the stand and testified in his own behalf.   See Footnote 6  Appellant's version of events differed from the version presented by the State's witnesses. Appellant did, however, admit he slapped Kim twice on the date in question. Appellant attempted to justify the violence as being in defense of his personal property, i.e., the laptop computer containing his work product from Texas Instruments, which Kim and Kelsey threatened to destroy.
 
Admonishments on Self-Representation
 
        In his first issue, appellant contends the record does not show the trial court admonished him of the dangers and disadvantages of self-representation, and that such failure is systemic error, immune to a harmless error analysis. The State responds that the trial court did admonish appellant at the pretrial hearing and, because appellant complains only of a total failure to admonish, as opposed to deficient admonishments, his point should be overruled.   See Footnote 7  The State also argues the admonishments were sufficient. Finally, citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), the State argues that any error is not structural error immune from a harmless error analysis.
 
1. Applicable law
 
        A criminal defendant has the right to be represented by counsel. U.S. Const. amend VI; Tex. Code Crim. Pro. Ann. art. 1.051(a) (Vernon 2005). However, all criminal defendants have a right to represent themselves at trial without an attorney if they so choose. See Faretta v. California, 422 U.S. 806, 813-17 (1975); see also Tex. Code Crim. Pro. Ann. art. 1.05 (Vernon 2005) (accused “shall have the right of being heard by himself, or counsel, or both”). A defendant who chooses to represent himself must knowingly and intentionally waive his right to have an attorney. See Faretta, 422 U.S. at 835. When a defendant knowingly and intelligently waives his right to counsel and seeks to represent himself, that decision must be honored. See id. at 834; Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). The mandates of Faretta are triggered when a defendant appears without an attorney and contests his guilt. See Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002); Goffney v. State, 843 S.W.2d 583, 584 (Tex. Crim. App. 1992).
        To satisfy the requisites of Faretta, a defendant must knowingly and intelligently waive his right to have an attorney and be made aware of the dangers and disadvantages of self-representation. Faretta, 422 U.S. at 835. The record must reflect the defendant has sufficient intelligence to show a capacity to waive his right to counsel and the ability to appreciate the practical disadvantages he will confront in representing himself. George v. State, 9 S.W.3d 234, 236-37 (Tex. App.-Texarkana 1999, no pet.). The record must show not only the appellant's wish to waive his right to counsel but also that appellant understood the consequences of such waiver. See id. at 237.
        The trial court's warnings need not be in writing. Goffney v. State, 812 S.W.2d 351, 352 (Tex. App.-Waco 1991), aff'd, 843 S.W.2d 583. Conclusions of the trial court, however, are not sufficient. See Manley v. State, 23 S.W.3d 172, 174 (Tex. App.-Waco 2000, pet. ref'd). The trial court must file a statement in the record “prior to any act of self-representation by the defendant.” Goffney, 843 S.W.2d at 585; see also Tex. Code Crim. Pro. Ann. art. 1.051(g) (setting out form trial court should provide to a defendant and to be made a part of the record).
 
2. Analysis
 
        To the extent appellant complains the trial court did not comply with article 1.051(g), the court of criminal appeals has held that statute is not mandatory.   See Footnote 8  See Burgess v. State, 816 S.W.2d 424, 431 (Tex. Crim. App. 1991); Goffney, 843 S.W.2d at 585. The record need only be sufficient for the reviewing court to make an assessment that the defendant was made aware of the dangers and disadvantages of the self-representation. Goffney, 843 S.W.2d at 585 (citing Faretta, 422 U.S. at 835; Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988)). We conclude this record is sufficient to conduct our review.
        In this case, appellant testified that he worked at Texas Instruments and that his job required him to “lay out silicone chips and design silicone chips for cell phones.” As early as February 23, 2005, appellant told the trial court he intended to represent himself. And during final argument, appellant told the jury he was representing himself for financial reasons-to save $11,000 that an attorney would have charged to represent appellant. There is no evidence in the record appellant was indigent and could not afford an attorney. Appellant's choice to represent himself was obviously a considered one.
        Appellant filed several pretrial motions.   See Footnote 9  On February 28, 2005, appellant filed a motion to dismiss based on Kim's affidavit of non-prosecution. After the trial court denied the motion to dismiss, appellant filed a motion to reset the case to allow him sufficient time to prepare for trial. The docket sheet shows the case was continued three times between March 1, 2005 and May 24, 2005, when it went to trial. On March 3, 2005, appellant filed a motion to strike or withdraw the amendment to the information, which the trial court denied by written order on March 24, 2005. On March 16, 2005, appellant filed a motion to “inspect evidence material” to be presented by the State. No ruling on that motion appears in the record. At trial, appellant invoked the rule of evidence, cross-examined the State's witnesses, made trial objections, moved for a directed verdict, reserved his opening statement until after the State's case in chief, presented his case in question and answer form, and made an appropriate closing argument.
        Reviewing the record as a whole, we conclude the admonishments given by the trial court at the February 23, 2005 pretrial hearing were sufficient to advise appellant of his right to self- representation, the importance of knowing the law and rules of evidence, and that he would not be given special consideration if he represented himself. See Johnson, 760 S.W.2d at 279. Nothing in the record indicates appellant did not understand the dangers and disadvantages of self- representation. And the record itself reflects appellant's capacity to represent himself. Accordingly, we resolve appellant's first issue against him.
Admission of Evidence
 
        In a second issue, appellant contends the trial court reversibly erred when it overruled his objection to the State's question of Rockwall police officer Klutts seeking details of the offense as it was related to him by Kim, and Klutts's response that Kim told him on the night of the offense appellant slapped her with an open hand.   See Footnote 10  Appellant claims the testimony was admitted in violation of his Sixth Amendment right of confrontation and that he was harmed by the error. In support of his argument, appellant relies on Crawford v. Washington, 541 U.S. 36 (2004), and Mason v. State, 173 S.W.3d 105 (Tex. App.-Dallas 2005, pet. ref'd), petition for cert. filed, 75 USLW 3020 (U.S. May 11, 2006) (No. 05-1435). The State responds that error, if any, is not preserved; Crawford does not apply; and, alternatively, any error is harmless. We agree with the State.
        Appellant does not complain on appeal the evidence was hearsay and improperly admitted in violation of the rules of evidence, which was his only trial objection to the testimony. Consequently, error is not preserved. A hearsay objection at trial does not preserve a constitutional confrontation clause claim on appeal, either pre- or post-Crawford. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (post-Crawford); Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991) (pre-Crawford).
        Moreover, Crawford v. Washington does not apply. In Crawford v. Texas, 139 S.W.3d 462, 464-65 (Tex. App.-Dallas 2004, pet. ref'd), we held Crawford v. Washington does not apply to a case in which the declarant appears in court and testifies. In this case, the declarant, Kim, did appear, testify, and was subject to cross-examination. Therefore, appellant's reliance on Crawford v. Washington and Mason is misplaced.
        Finally, even if there was error in allowing the officer's testimony, we conclude beyond a reasonable doubt it did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2(a). Kim testified to the events in question, and appellant himself testified he slapped Kim twice. We resolve appellant's second issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
051073F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Appellant is represented by counsel on appeal.
Footnote 3 Appellant objected at trial only on the basis of hearsay. On appeal, he raises only a constitutional claim.
Footnote 4 The police had previously been called to the home.
Footnote 5 An emergency protective order (PO) was issued. The PO prohibited appellant from going around Kim for the next five weeks. Appellant apparently complied with the terms of the PO. After it expired, appellant and Kim reconciled, went to marriage counseling, and attempted to save their marriage. However, on the Saturday before the trial, appellant grabbed Kim by her shoulders, picked her up, and threw her on the bed. At the time of trial, Kim had moved out of the home and put a deposit on an apartment.
Footnote 6 At the State's request, the trial court required appellant to present his testimony in “question and answer” form, and for the most part appellant did so. The trial court admonished appellant of his Fifth Amendment right not to testify, but appellant chose to take the stand and testify in his own behalf.
Footnote 7 Appellant's brief states,
 
 
There is only one volume of testimony in the record. It does not contain, prior to the beginning of voir dire, any admonishments by the trial court as to the dangers and disadvantages of self-representation. Whether or not this occurred at an earlier hearing or an earlier stage of the trial, no admonishments are reflected in the record.
 
However, the record before us consists of two volumes: one entitled “Pre-Trial [sic] Hearing” and the other entitled “Jury Trial.”
Footnote 8 While not mandatory, we believe the better practice is for the trial court to provide the defendant with the written statement set out in article 1.051(g) and obtain the defendant's signature on that statement for the record. That would reduce these types of complaints considerably. Cf. Goffney, 843 S.W.2d at 585.
Footnote 9 These motions, however, were filed after the February 23, 2005 hearing at which the trial court noted that appellant had not filed any pretrial motions and indicated appellant was “waiving” those motions.
Footnote 10 Appellant objected stating, “Your Honor, is this not hearsay? He is telling us what she said. Can we not have the officer just tell us what he saw?”

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