Troy Tillman v. The State of Texas--Appeal from 178th District Court of Harris County

Opinion Issued January 6, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00027-CR

TROY TILLMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 941615

MEMORANDUM OPINION

The trial court found appellant, Troy Tillman, guilty of sexual assault enhanced by two prior felony convictions for burglary and theft and assessed 35 years in prison. See Tex. Pen. Code Ann. 22.011 (Vernon Supp. 2004-2005). We determine whether the trial court violated appellant s Sixth Amendment right to self-representation and whether the trial court erred in denying appellant s motion to suppress his DNA test results. We affirm.

Facts

The complainant and appellant met at a gas station in the summer of 2002 and exchanged telephone numbers. Over the next eight months, appellant and the complainant spoke on the telephone and went to lunch several times. During this time, the complainant expressed to appellant that she did not desire to have a sexual relationship with him.

On February 24, 2003, the complainant visited appellant at his home. On this occasion, appellant forcefully pushed the complainant onto his bed, held her down, and forced her to have sexual intercourse with him. Immediately after she left appellant s house, the complainant drove to Hermann Hospital and was examined. The complainant spoke with Houston Police Department officers at the hospital and reported that appellant had sexually assaulted her. Shortly thereafter, the complainant went to the police station, made a statement, and identified appellant in a photographic spread.

A warrant was issued to obtain a sample of appellant s DNA to compare to semen recovered from a vaginal swab taken from the complainant during her examination at the hospital. A DNA analysis determined that the sperm cell recovered from the complainant s vaginal swab was consistent with a reference sample collected from appellant.

Sixth Amendment Right to Self-Representation

In his first point of error, appellant contends that the trial court violated his Sixth Amendment right to self-representation.

The Sixth Amendment guarantees criminal defendants the right to assistance of counsel in criminal cases. See U.S. Const. amend. VI; Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975). Implied in the right to counsel, and in other protections of the Sixth Amendment, is a right to self-representation. Faretta, 422 U.S. at 820, 95 S. Ct. at 2533. The right to self-representation, however, does not attach until it has been clearly and unequivocally asserted. Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App. Houston [14th Dist.] 1999, pet. ref d). Once the right has been asserted, the trial court must advise the defendant of the dangers and consequences of self-representation. Id. Thereafter, if the defendant maintains his desire to proceed pro se, he should be allowed to do so as long as the assertion of his right to self-representation is unconditional and not asserted to disrupt or to delay the proceedings. Id. When a defendant invokes the right to self-representation, the trial court may, in its discretion, permit hybrid representation. McKaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S. Ct. 944, 954 (1984). Representation amounts to hybrid representation when, in response to the defendant s request for self-representation, the trial court allows the defendant s attorney to remain as counsel and to be available to advise the defendant. See Walker v. State, 962 S.W.2d 124, 126 (Tex. App. Houston [1st Dist.] 1997, pet. ref d). In such a case, if the defendant invokes the participation of stand-by counsel, the representation becomes hybrid. Id.

A defendant s Sixth Amendment rights are not violated when a trial court appoints stand-by counsel, even over the defendant s objection, to relieve the court of the need to explain and to enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant s achievement of his own clearly indicated goals. McKaskle, 465 U.S. at 184, 104 S. Ct. at 954. As long as the appointment of counsel to assist the defendant does not interfere with the defendant s actual control over his own defense or undermine his appearance before the jury in the status of a pro se defendant, participation of stand-by counsel does not infringe upon the right to self-representation. Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989).

Appellant made requests to proceed pro se on two separate occasions prior to trial. Appellant first asserted his desire to represent himself on December 12, 2003, during a pretrial hearing. On this occasion, after appellant had expressed his wish to proceed pro se several times, the trial court admonished appellant of the dangers and consequences inherent in self-representation. After the trial court had admonished appellant about the dangers of representing himself, appellant abandoned his request and instead requested that the trial court appoint a different attorney to represent him. The trial court denied this request.

A defendant may waive his right to represent himself once it has been asserted. See Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). Waiver of the request for self-representation may be found if it reasonably appears to the court that a defendant has abandoned his initial request to represent himself. See id. Because appellant, after having received the trial court s admonishments regarding the consequences of self-representation, failed to express a continued desire to proceed pro se, and instead requested that the trial court appoint him different counsel, appellant waived his first request to represent himself. See id.; see also Birdwell, 10 S.W.3d at 77.

Appellant again requested to represent himself during a pretrial hearing on December 15, 2003. On this occasion, appellant s request was made amidst a lengthy discussion regarding his desire to waive his right to a jury trial. When appellant made his request to represent himself, the trial court interrupted appellant and returned his attention to the issue at hand waiver of a jury trial and never returned to the issue of appellant s self-representation. Absent an unmistakable denial of the request for self-representation, appellant cannot complain on appeal about the trial court s denial of his request. See Birdwell, 10 S.W.3d at 77.

Moreover, in this trial to the court, the record reflects that the trial court made numerous concessions to appellant, often allowing appellant to represent himself through hybrid representation. Even in the one area that the trial court insisted that counsel do the questioning the examination of the complainant the trial court afforded ample opportunity for appellant to have his questions asked by counsel. Under these circumstances, we find no denial of appellant s Sixth Amendment rights. We overrule appellant s first point of error.

Motion to Suppress Evidence

In his second point of error, appellant contends that the trial court erred in denying his motion to suppress evidence because the probable-cause affidavit supporting the search warrant lacked personal knowledge on the part of the affiant.

In reviewing the trial court s decision to deny appellant s motion to suppress, we apply an abuse-of-discretion standard. See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Bhakta v. State, 124 S.W.3d 738, 740 (Tex. App. Houston [1st Dist.] 2003, pet. struck). We reverse only if the trial court s decision falls outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh g). In determining whether the trial court abused its discretion, we consider whether the court acted without reference to guiding rules or principles that is, whether the court acted arbitrarily or unreasonably. Id. at 380. A search warrant may not issue unless it is supported by an affidavit setting forth the following sufficient facts to establish probable cause: (1) that a specific offense has been committed; (2) that the specifically described property or items that are to be searched or seized constitute evidence that an offense occurred or evidence that a particular person committed that offense; and (3) that the property or items constituting evidence to be searched for or seized are located at or on that particular person, place, or thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp. 2004-2005). The information contained in the affidavit may be based on either direct personal knowledge or hearsay information. Belton v. State, 900 S.W.2d 886, 893 (Tex. App. El Paso 1995, pet. ref d). We examine the four corners of the affidavit to determine whether probable cause exists. Wilson, 98 S.W.3d 265, 270-71 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). However, reasonable inferences may be drawn from the affidavit, and the affidavit must be interpreted in a common sense and realistic manner. Id. at 271.

A hearing on the motion to suppress evidence was held during trial. Appellant contended that the probable-cause affidavit was legally insufficient because the affiant, Investigator John Tucker, lacked personal knowledge about whether the complainant was reliable or credible and because no inventory was attached to the warrant. // The trial court overruled the motion to suppress.

On appeal, appellant contends that the affidavit was defective because it (1) stated conclusions, rather than facts constituting probable cause; (2) failed to show personal knowledge on the part of the affiant; and (3) failed to show the reliability of the information or the informant. In order to preserve a complaint for review, appellant had to preserve the error in the trial court by presenting a timely objection. See Tex. R. App. P. 33.1(a). During trial, appellant asserted only that the affiant lacked personal knowledge to support the contention that the complainant was reliable and credible and that there was no inventory attached to the warrant. Appellant has, therefore, preserved only these objections for appellate review and has waived his complaint that the affidavit contained conclusory statements. See id.

The affidavit stated that the complainant identified appellant as her attacker during the course of the investigation of the offense. When the victim or eyewitness to the offense is the direct source of the information conveyed to the magistrate through a police officer, neither facts independently corroborative of the occurrence nor the basis for the claimed reliability of the eyewitness need be recited in the affidavit. Belton, 900 S.W.2d at 894. If the named informant is a private citizen whose only contact with the police is a result of having witnessed a criminal act committed by another, the credibility and reliability of the informant is inherent for purposes of a probable-cause affidavit. Id. Because the complainant in this case was the victim of the crime, her credibility was inherent, and the basis for her reliability did not have to be recited by the affiant. See id. Furthermore, a magistrate may rely on the affidavit of a police officer, based on the knowledge of other officers, when police are engaged in a common investigation. See State v. Anderson, 917 S.W.2d 92, 98-99 (Tex. App. Houston [14th Dist.] 1996, pet. ref d). Therefore, the affidavit sufficiently set forth sufficient, substantial, and reliable facts to show the magistrate probable cause that appellant had committed the offense of sexual assault.

We overrule appellant s second point of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Bland.

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