Calhoun, Cne Sims v. The State of Texas--Appeal from Co Crim Ct at Law No 2 of Harris County

Affirmed and Opinion filed August 12, 2003

Affirmed and Opinion filed August 12, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00765-CR

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CNE SIMS CALHOUN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris  County, Texas

Trial Court Cause No. 1116922

O P I N I O N

Appellant, Cne Sims Calhoun, was charged by information with misdemeanor trespass of a habitation. Appellant was convicted by a jury, and the trial court assessed her punishment at sixty-seven days=confinement in the Harris County Jail. Appellant contends on appeal that: (1) the trial court erred in failing to obtain a written waiver of her right to counsel, (2) the trial court erred in denying her motion for a continuance, (3) the State used an improper hypothetical illustration during its voir dire examination, and (4) the evidence is legally and factually insufficient to support her conviction. We affirm.

Appellant and her husband were joint-debtors on a townhouse in Harris County. Appellant=s husband, David Calhoun, filed for bankruptcy and the federal bankruptcy court enforced a stay over the property. Banco Popular, a lienholder on the property, petitioned the bankruptcy court through its recovery agent, Eufracio Molina, to have the stay lifted so it could proceed with foreclosure on the property. With David Calhoun=s consent, the bankruptcy court lifted the stay, and Banco Popular then began foreclosure efforts.

Appellant and her husband were given a thirty-day demand notice that all past-due payments were required to be paid immediately. After failing to make any payments, appellant was sent notice that the property was to be sold to the highest bidder on May 1, 2001, at the courthouse. Banco Popular was the highest bidder and was given a substitute trustee=s deed that established it as the rightful owner of the property. The same day, the bank sent a letter to appellant demanding that she vacate the property within ten days. Appellant refused and a forcible entry and detainer suit was instituted against her on May 22, 2001. Appellant failed to appear at the hearing and the justice court entered a default judgment against her. The justice court also held Banco Popular was the rightful owner and issued a writ of possession accordingly. The writ was filed with a local constable, who presented it to appellant and evicted her, telling her never to return to the property.

Appellant appealed this action to the county court and while the appeal was pending, she moved back onto the property without the bank=s consent. The county court upheld the bank as the rightful owner and issued a second writ of possession. Appellant then appealed the county court decision to this court. While that appeal was pending, the bank discovered appellant had moved onto the property when a real estate agent attempted to show the townhouse to a potential buyer but was unable to enter because appellant was inside and had changed the locks. No action was taken against appellant by the Harris County District Attorney owing to the fact that an appeal was pending. We ultimately dismissed the case as moot because appellant had failed to file a supersedeas bond, as is required to stay the judgment, and the bank already had taken possession of the property.[1] After we affirmed the county court=s judgment, the District Attorney issued a notice to appellant explaining that she had no right to possession of the property and demanding that she vacate it immediately. A process server presented appellant with this notice on April 17, 2002 , but on May 8, 2002, another real estate agent was denied entrance to the townhouse because appellant was inside and had again changed the locks. The next day, Molina confronted appellant, who again refused to leave because she claimed she owned the property. A Houston police officer was summoned to the scene. Molina exhibited the necessary documents to the officer establishing the bank as the rightful owner of the property. When appellant would not vacate the property, she was arrested for criminal trespass.

Written Waiver of Right to Counsel

In her first point of error, appellant contends the trial court erred in failing to obtain a written waiver of her right to counsel before proceeding to trial. Specifically, appellant contends Articles 1.051 (f) & (g) of the Texas Code of Criminal Procedure require a written waiver of right to counsel and that failure to obtain such a writing in her case constitutes reversible error. Tex. Code Crim. Proc. Ann. art. 1.051(f) & (g) (Vernon Supp. 2003).

A defendant may voluntarily and intelligently waive, in writing, his or her right to counsel, following written admonishments by the trial court. Id. However, when the defendant affirmatively asserts her right to proceed without counsel, the admonishments by the court need not be in writing. Burgess v. State, 816 S.W.2d 424, 429B30 (Tex. Crim. App. 1991). In addition, when an accused affirmatively asserts her right to self representation under Faretta v. California,[2] a written waiver of the right to counsel is not required under the statute. Burgess, 816 S.W.2d at 429B430; Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992) (reaffirming that article 1.051(g) is not mandatory so long as the requirements of Faretta have been met).

Appellant argues that the trial court erred in failing to reduce her waiver to writing according to articles 1.051 (f) & (g). However, the record indicates appellant clearly and unequivocally waived her right to counsel and asserted her right to self-representation according to the Faretta standard. When appellant initially appeared in court, on May 22, 2002, the trial judge admonished her about the dangers of self-representation, gave her a copy of the charge, and allowed her to consult a court-appointed lawyer. When appellant returned to court, on June 10, 2002, the judge explained the range of punishment she could receive if convicted of trespass to a habitation and gave her another copy of the charge. Appellant explained that she understood the charge and the potential sentencing range. She also told the judge she desired, and fully intended, to represent herself.

Moreover, the trial judge ordered the State to give appellant copies of the police report, copies of all criminal history records on appellant and the witnesses that were to be called by the State, and to show appellant all other documents the State intended to use at trial. The judge then asked a series of questions about appellant and her ability to understand the law. Specifically, the court questioned appellant regarding her: (1) educational background; (2) capacity to understand legal proceedings; (3) lack of legal education; (4) experience in legal matters and representation in court; (5) understanding of the law in her case; and (6) reasons for desiring to represent herself. The trial judge continued by again admonishing appellant about the sentencing range and explaining that she could not later claim ineffective assistance of counsel if she chose to represent herself. He also warned that she would be given no special consideration simply because she lacked formal legal training and this lack of training might result in her failing to properly raise or preserve error for appeal. The court echoed similar admonitions on three separate occasions and explained to appellant the steps she was required to take in representing herself. Appellant continued to insist on representing herself and the court eventually deferred to her request.

Appellant was properly questioned and admonished according to the standards set forth in Faretta. Appellant continually asserted her right of self-representation despite these warnings. Thus, appellant=s waiver of her right to counsel was clearly sufficient without being written. Appellant=s first point of error is overruled.

Denial of Motion for Continuance

In her second point of error, appellant contends the trial court erred in denying her motion for continuance. Specifically, appellant argues she announced Anot ready@for trial, but the trial judge declared her Aready@ and denied her request for additional time to prepare.

A criminal action may be continued on the written motion of either party, upon a showing of sufficient cause, if the cause is fully set forth in the motion. TEX. CODE OF CRIM. PROC. ANN. arts. 29.03, 29.08. The granting or denial of a continuance rests within the sound discretion of the trial court. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144 (1983). Reversal is justified only if the trial court abused its discretion. Hernandez, 643 S.W.2d at 399. Refusal to grant an oral motion for continuance, whether made before or after the commencement of trial, is not grounds for reversal. Stubbs v. State, 457 S.W.2d 563, 564 (Tex. Crim. App. 1970); Finch v. State, 399 S.W.2d 544, 546 (Tex. Crim. App. 1966); Crenshaw v. State, 389 S.W.2d 676, 677B78 (Tex. Crim. App. 1965). An unsworn, oral motion for continuance preserves nothing for review. See TEX.CODEOFCRIM.PROC. ANN. arts. 29.03, 29.08.; Dewberry v. State, 4 S.W.3d 735, 755B56 (Tex. Crim. App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Porter v. State, 623 S.W.2d 374, 381 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 965 (1982).

Appellant initially requested a continuance when she appeared before the judge on June 13, 2002. Her request was premised on the need to secure documents from the federal bankruptcy court which she argued were necessary to her case. The trial judge offered and appellant agreed that a continuance of thirty-three days would be sufficient to allow her to obtain the documents and prepare her defense. When appellant next appeared in court, on July15, she announced she was not ready because she had not received the documents from the bankruptcy court. The trial judge refused to grant another delay, explaining that appellant failed to request personal service on her subpoena, which precluded the court from entering a writ of attachment. The court further explained to appellant that the files at issue were not relevant to her criminal defense.[3]

Appellant failed to comply with the provisions of Articles 29.03 and 29.08 regarding a proper motion for continuance. As such, appellant waived any claim of error and preserved nothing for our review. Appellant=s second point of error is overruled.

Voir Dire

In her third point of error, appellant alleges the trial court erred in allowing an improper hypothetical illustration during voir dire. Specifically, appellant argues the State presented a hypothetical scenario that was specific to the facts of her case and that in so doing, the State improperly committed prospective jurors to a particular verdict.

The right to be represented by counsel includes the right of counsel to question members of the jury panel in order to intelligently exercise peremptory challenges. Ex parte McKay, 819 S.W.2d 478, 481 (Tex. Crim. App. 1990); Shipley v. State, 790 S.W.2d 604, 607B08 (Tex. Crim. App. 1990). The conduct of voir dire examination rests within the sound discretion of the trial court and only an abuse of discretion will call for reversal on appeal. Battie v. State, 551 S.W.2d 401, 404B05 (Tex. Crim. App. 1977); Hernandez v. State, 506 S.W.2d 884, 887 (Tex. Crim. App. 1974). A proper voir dire question is one that seeks to discover a veniremember=s views on an issue applicable to the case. Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996); Guerra v. State, 771 S.W.2d 453, 468 (Tex. Crim. App. 1988). However, the question cannot commit a potential juror to reach a verdict based on a hypothetical set of facts. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (citing examples of improper commitment questions); Atkins v. State, 951 S.W.2d 787, 789B90 (Tex. Crim. App. 1997). A trial judge must determine if the hypothetical is used to properly explain the law or to improperly commit the venire to a specific result under the facts. Atkins 951 S.W.2d at 790. To find that the question was used for anything other than to explain the law would be to find an abuse of discretion and would constitute reversible error. Id. To preserve error for appeal, the defendant must make a timely request, objection, or motion. See TEX. R. APP. PROC. 33.1(a); Penry v. State, 903 S.W.2d 715, 741B43 (Tex. Crim. App. 1995) (holding that voir dire error is not preserved unless a timely objection is made); see also Ransom v. State, 789 S.W.2d 572, 583 (Tex. Crim. App. 1989).

Here, appellant failed to object to the hypothetical illustration posed by the State=s attorney. Because she raises the issue for the first time on appeal, nothing has been preserved for our review. Appellant=s third point of error is overruled.

Sufficiency of the Evidence

In her fourth and fifth points of error, appellant avers the evidence is legally and factually insufficient because it fails to show she was not the legal owner of the property.

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). If, after considering all the evidence, we determine a rational trier of fact could have found the elements proven beyond a reasonable doubt, the verdict must stand. See Kutzner v. State, 994 S.W.2d 180,184 (Tex. Crim. App. 1999).

When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@standard applies. Id. Under the Texas Court of Criminal Appeals=modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

To support a conviction for criminal trespass to a habitation, the State must prove (1) the defendant, (2) without effective consent, (3) enters or remains in the habitation of another, (4) knowingly or intentionally or recklessly, (5) when she had notice that entry was forbidden or received notice to depart but failed to do so. TEX PEN. CODE ANN. ''30.05(a)(2) and 30.05(d) (Vernon Supp. 2003); see also Moreno v. State, 702 S.W.2d 636, 639B40 (Tex. Crim. App. 1986). While the ownership of the habitation is not an element of the offense,[4] a bona fide dispute over ownership of property may bar a conviction of criminal trespass. See Ex parte Davis, 542 S.W.2d 192, 195-96 (Tex. Crim. App. 1976); Moore v. State, 268 S.W.2d 187, 189 (Tex. Crim. App. 1954); Allsup v. State, 62 S.W. 1062, (Tex. Crim. App. 1901); Hann v. State, 771 S.W.2d 731, 733-34 (Tex. App.CDallas 1989). If the State alleges ownership and there is a dispute as to that ownership, the State has the burden of proving the allegation. Langston, 855 S.W.2d at 721. In such a case, the State merely has to show beyond a reasonable doubt that another had a greater right to possession than the defendant. Arnold v. State, 867 S.W.2d 378, 379 (Tex. Crim. App. 1993).

Appellant=s argument hinges on what she contends is a rightful claim of ownership, which allegedly would preclude a conviction for criminal trespass. Appellant contends she is still the true owner of the property because the federal bankruptcy court placed a stay on foreclosure of the property. She claims this stay invalidated any foreclosure and writ of possession proceedings and, therefore, the bank never attained status as an owner or a party with a greater right to possession. Appellant concedes that the bankruptcy court lifted the stay on foreclosure of the property, but suggests that her approval was required to lift the stay even though the bankruptcy action was instituted only by her husband and her husband agreed to have the stay lifted. Furthermore, she argues the stay was lifted only as to her husband and not on her interest in the property.

The State, however, is only required to show beyond a reasonable doubt that another had a greater right to possession than appellant, and to this end the State offered substantial evidence. As we already have detailed above, numerous courts have examined the possessory interest of appellant and uniformly have concluded that she must vacate the property. When viewed in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, when all the evidence is examined in a neutral light, the proof of guilt is not so obviously weak as to undermine confidence in the jury=s determination. Further, the proof of guilt was not so greatly outweighed by contrary proof as to render the jury=s verdict clearly wrong and unjust. Therefore, the evidence is both legally and factually sufficient to support the conviction. Appellant=s fourth and fifth points of error are overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed August 12, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish CTex. R. App. P. 47.2(b).

[1] Calhoun v. Banco Popular North America, 2002 WL 246560 (Tex. App.CHouston [14th Dist.] 2002, n.w.h.).

[2] Faretta v. California, 422 U.S. 806 (1975), established the mandatory inquiry every court must utilize in determining whether a defendant has voluntarily and intelligently waived her right to counsel. Faretta does not require any specific line of questions concerning a defendant=s age, education, background or previous mental health history in every instance. See Johnson v. State, 760 S.W.2d 277, 278B79 (Tex. Crim. App. 1988). There is no absolute formula the court must use to establish such a desire; however, the trial court must make all necessary inquiries of the defendant and all proper admonishments concerning the dangers and disadvantages of pro se representation so that the court may make an assessment of the voluntariness and knowing exercise of the right to defend herself. Id.

[3] Even if appellant had properly submitted a written motion for continuance, the trial court would have similarly determined that another delay was unnecessary. Denial of such a motion is subject to review for abuse of discretion; and in this case, there is nothing in the record before us to show the court abused its discretion. The sole reason appellant requested the delay was to obtain documents from the bankruptcy court. The judge found these documents were irrelevant to appellant=s case, and therefore, even with a proper motion there would have been no abuse of discretion in denying further delay.

[4] See Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993).