Jones, Robert Edward v. The State of Texas--Appeal from 122nd District Court of Galveston County

Reversed and Remanded and Memorandum Opinion filed March 15, 2005

Reversed and Remanded and Memorandum Opinion filed March 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00107-CR

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ROBERT EDWARD JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 00CR0980

M E M O R A N D U M O P I N I O N

Appellant Robert Edward Jones was convicted by a jury of sexual assault. In this appeal, appellant argues the trial court erred by (1) denying appellant his Sixth Amendment right to self-representation, (2) denying appellant s motion to dismiss the indictment for failure to comply with the provisions of the Interstate Agreement on Detainers Act, (3) denying appellant s motion to quash the indictment, and (4) by assessing punishment under an incorrect section of the Texas Penal Code. Appellant also maintains that he received ineffective assistance of counsel. Because we agree that appellant s Sixth Amendment right to self-representation was violated, we reverse and remand for a new trial.

In his first issue, appellant argues that the trial court erred by denying appellant his Sixth Amendment right to represent himself at trial. Appellant twice requested that he be allowed to represent himself. Appellant s requests were clear and unequivocal; he signed a waiver of appointed counsel form and submitted at least two motions to proceed pro se. At the first of two hearings on the issue, appellant stated that he had bad experiences with court-appointed attorneys in the past and that he simply wished to assert his Sixth Amendment right to self-representation. The trial judge appointed an attorney to consult with appellant, but expressly stated that appellant was not waiving his right to self-representation. Appellant acquiesced and later accepted the services of the court-appointed attorney under the condition that the attorney could not agree to a continuance. After the trial court granted a continuance, appellant again moved to proceed pro se. At the second hearing on appellant s request to proceed pro se, the trial court denied appellant s request. On appeal, the State concedes that it was reversible error not to allow appellant to represent himself.

The Sixth and Fourteenth Amendments to the U.S. Constitution guarantee that the accused in any state or federal court has the right to self-representation. See Faretta v. California, 422 U.S. 806, 818 20 (1975). The right to self-representation does not attach, however, until it has been clearly and unequivocally asserted. See Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992). It must also be asserted in a timely manner, namely, before the jury is empaneled. Id. Once the right has been asserted, the trial judge is obliged to make the accused aware of the consequences of self-representation. See Faretta, 422 U.S. at 835; Winton, 837 S.W.2d at 135. Thereafter, if the accused 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 delay the proceedings. Winton, 837 S.W.2d at 135. A defendant's clear and unequivocal request for self-representation, followed by an unmistakable denial of that right, is sufficient to preserve the alleged error. See Funderburg v. State, 717 S.W.2d 637, 642 n.6 (Tex. Crim. App. 1986); Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App. Houston [14th Dist.] 1999, pet. ref d).

Here, appellant clearly and unequivocally expressed that he wanted to represent himself. Appellant s request was timely because it occurred before a jury had been empaneled. Further, the trial court warned appellant of the dangers of representing himself, and appellant persisted with his request. Because appellant made an unequivocal, timely request to represent himself, the trial court erred in refusing this request. Accordingly, we sustain appellant s first issue.

In his second issue, appellant argues that the trial court erred in denying appellant s motion to dismiss the indictment based on violations of the Interstate Agreement on Detainers Act (IADA). See Tex. Code Crim. Proc. Ann. art. 51.14 (Vernon 1979). The IADA is a compact between different states that enables a party state to obtain custody of an out-of-state prisoner for prosecution and imposes upon that state some duties designed to ensure the prisoner s prompt return. State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997). Depending on which article of the IADA applies, the prisoner must be tried in the prosecuting state within 120 or 180 days; if a trial is not held within the applicable time period, the indictment is dismissed with prejudice. See Tex. Code Crim. Proc. Ann. art. 51.14, arts. III, IV.

Appellant complains that because he was not brought to trial within the relevant time period provided in the IADA, the trial court should have dismissed the indictment against him. The State argues that the IADA does not apply to appellant because he was brought to Texas from a penal institution in Louisiana, and Louisiana is not a party to the IADA.[1]

The IADA is contractual in nature. See Williams, 938 S.W.2d at 460. Article III of the IADA clearly contemplates that its provisions are only binding upon states that are parties to the agreement:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days . . . .

Tex. Code Crim. Proc. Ann. art. 51.14, art. III(a) (emphasis added). Louisiana has not enacted the IADA. Based on the plain language of the IADA, we find that the IADA is not applicable here. See Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex. Crim. App. 1991) (implying that IADA was inapplicable to prisoner located in Louisiana because Louisiana is not a signatory to the IADA). Accordingly, appellant s second issue is overruled.

Because we have sustained appellant s first issue, we need not address appellant s third, fourth, and fifth issues. The judgment of the trial court is reversed, and the cause is remanded for a new trial.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 15, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

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

[1] Appellant acknowledges in his brief that Louisiana is not a signatory to the IADA. Appellant maintains, however, that because Texas is a party to the IADA it was still required to comply with the provisions of the act.