Bobby Ray Lewis v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

MEMORANDUM OPINION
No. 04-03-00214-CR
Bobby Ray LEWIS,
Appellant
v.
STATE of Texas,
Appellee
From the County Court at Law Number 9, Bexar County, Texas
Trial Court No. 824628
Honorable Oscar Joseph Kazen, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 18, 2004

AFFIRMED

Bobby Ray Lewis ("Lewis") appeals his jury conviction on the misdemeanor charge of criminal trespass. Lewis asserts three issues on appeal: (1) the trial court erred in granting court-appointed counsel's motion to withdraw; (2) the trial court failed to follow article 1.051 of the Texas Code of Criminal Procedure in allowing Lewis to represent himself; and (3) the trial court erred in the procedure employed in advising Lewis of his right to self-representation. We affirm the trial court's judgment.

Background

Lewis was arrested and charged by information with the misdemeanor offense of criminal trespass. Tex. Pen. Code Ann. 30.05(a)(1) (Vernon 2003). The trial court appointed counsel, Michael Ramos, to represent Lewis when Lewis indicated his desire to represent himself. Thereafter, Ramos filed a motion to withdraw on the grounds that he was unable to effectively communicate with Lewis so as to adequately represent him. The trial court granted the motion.

The trial court advised Lewis that he could obtain another court-appointed attorney if he was in fact indigent. The court admonished Lewis of the penalties associated with making false statements in his application for a court-appointed attorney and his affidavit of indigence. In response, Lewis informed the court that he felt threatened and intimidated by the trial court. Lewis asserted that if Ramos was allowed to withdraw, he would like to represent himself. The trial court confirmed that Ramos's motion had been granted and questioned Lewis regarding his desire to represent himself. During the trial court's inquiry, Lewis reasserted his desire to represent himself.

Lewis went to trial four days later, pro se. Before the trial began, the trial court appointed standby counsel and thoroughly admonished Lewis regarding the dangers and disadvantages involved with self-representation. Lewis acknowledged these dangers and reasserted his desire to represent himself. The jury returned a verdict of guilty, and the court assessed punishment of a fine and six months incarceration, probated for one year.

Motion to Withdraw

In his first issue on appeal, Lewis contends that the trial court erred in granting Ramos's motion to withdraw. Lewis acknowledges that the Code of Criminal Procedure does not delineate the procedure to be employed by an attorney seeking to withdraw, but Lewis asks this court to look to Rule 10 of the Texas Rules of Civil Procedure ("Rule 10") and Rule 1.15(b)(7) of the Texas Rules of Professional Responsibility ("Rule 1.15") for guidance. Lewis contends that under these standards the trial court erred in granting Ramos's motion to withdraw. Specifically, Lewis argues that the record does not show that Lewis had reasonable notice of the motion to withdraw in violation of Rule 10 and that Ramos failed to demonstrate good cause for withdrawal under Rule 1.15.

Although the Texas Disciplinary Rules are not controlling standards governing motions to withdraw, they articulate considerations relevant to the merits of such motions. In re Posadas USA, Inc., 100 S.W.3d 254, 257 (Tex. App.-San Antonio 2001, no pet.); see Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990). Similarly, the Texas Rules of Civil Procedure direct us to consider whether counsel asserted a good cause for seeking withdrawal. Tex. R. Civ. P. 10. Still, the Texas Rules of Civil Procedure do not govern criminal cases and only provide guidance in this case. Tex. R. Civ. P. 2 . Therefore, we need not assess the motion's compliance with Rule 10, and we will consider Rule 1.15 and Rule 10 only as guidance in evaluating the merits of the motion.

The trial court has discretion to determine whether counsel should be allowed to withdraw from a case. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) (citing Green v. State, 840 S.W.2d 394, 408 (Tex. Crim. App. 1992)); Tuffiash v. State, 948 S.W.2d 873, 878 (Tex. App.-San Antonio 1997, pet. ref'd). However, the right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice. Id. Furthermore, personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal. Id. (citing Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990)).

The record reflects that the trial court conducted a hearing on Ramos's motion to withdraw four days before the trial. At the hearing, Ramos explained that he was seeking withdrawal because he was unable to effectively communicate with Lewis, and as a result, he was unable to prepare Lewis's defense. Ramos asserted that he had made eight phone calls and sent four letters to Lewis during the month before trial, but he was unable to get Lewis's version of the events leading to his arrest because Lewis had not returned the phone calls or responded to the letters. Lewis denied Ramos's version of the events. Lewis asserted that Ramos made no attempts to contact him; Lewis had not received any correspondence from Ramos; Lewis had prepared his case for Ramos, and Ramos refused to accept it; and none of Ramos's letters had been certified. The trial court accepted Ramos's version of the facts and granted Ramos's motion to withdraw on the grounds that, as an officer of the court, Ramos had represented that he was unable to adequately prepare Lewis's case due to a failure to communicate.

Lewis contends that counsel's cause for withdrawal was insufficient, but he offers no controlling authority in support. Instead, Lewis directs us to the Texas Disciplinary Rules. However, the record demonstrates that under these rules, Ramos had several grounds upon which to base his withdrawal request, including (1) the representation had been "rendered unreasonably difficult" by Lewis, and (2) "other good cause for withdrawal" existed. Tex. R. Disciplinary Prof'l Conduct 1.15(b)(6), (7), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, 9). Here, the failure to communicate prevented counsel from fulfilling his ethical duties in representing Lewis. See Tuffiash v. State, 948 S.W.2d 873, 878 (Tex. App.-San Antonio 1997, pet. ref'd) (affirming grant of motion to withdraw on grounds that conflict between counsel and defendant prevented counsel from fulfilling his ethical duties in representing the defendant).

We emphasize that Ramos's reason for withdrawing amounted to more than a personality conflict or disagreement on trial strategy; Ramos sought withdrawal due to a failure to communicate, which was spurred in part by what the trial court perceived to be Lewis's desire to represent himself. See King, 29 S.W.3d at 566. According to Ramos's account, there was an absence of communication necessary for a proper defense.

Furthermore, the record demonstrates that Ramos's withdrawal did not obstruct the judicial process or interfere with the administration of justice. See King, 29 S.W.3d at 566. At the hearing on the motion to withdraw, the trial judge was prepared to give Lewis leave to file an application of indigency for a court-appointed attorney. Lewis stated that he did not want to file such an application and insisted that he was ready to proceed to trial pro se. Lewis requested a trial setting for the next available date and stated that he did not need ten days to prepare. Given the circumstances, Lewis has not shown that the trial court abused its discretion in granting the motion to withdraw. In the absence of a showing of abuse of discretion, there is no reversible error. Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988), cert. denied, 488 U.S. 863 (1988). Lewis's first issue is overruled.

Written Waiver of Counsel

In his second issue on appeal, Lewis contends that the trial court erred in failing to follow article 1.051 of the Texas Code of Criminal Procedure ("Article 1.051") and allowing Lewis to represent himself. Lewis contends that his conviction should be overturned because the trial court failed to obtain a mandatory written waiver under article 1.051(g) of the Texas Code of Criminal Procedure.

If a defendant wishes to waive his right to counsel, the court is required to advise him on the dangers and disadvantages of self-representation. Tex. Code. Crim. Proc. Ann. art. 1.051(g) (Vernon 1977 & Supp. 2003). If the court determines that a defendant's waiver of his right to counsel is voluntarily and intelligently made, the court is required to provide the defendant with a statement of waiver that is to be filed of record if it is signed by the defendant. Id. In Burgess v. State, the Court of Criminal Appeals held that "when an accused affirmatively asserts his right to self-representation under Faretta v. California, a written waiver of the right to counsel is not required under the statute." Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991) (citing Faretta v. California, 422 U.S. 806, 835 (1975)). Hence, article 1.051(g) is not mandatory, and the trial court's failure to secure Lewis's written waiver is not reversible error if Lewis invoked his right to self-representation. Id. at 431.

In order to invoke the right to self-representation, a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with his eyes open." Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992) (quoting Faretta, 422 U.S. at 835). A trial judge need follow no "formulaic questioning" or particular "script" to assure himself that an accused is asserting his right with his eyes open. Burgess, 816 S.W.2d at 428. However, the record must "contain proper admonishments concerning pro se representation and any necessary inquires of the defendant so that the trial court can make an assessment of his knowing exercise of the right to defend himself." Goffney, 843 S.W.2d at 585 (citing Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1988) (citing Faretta, 422 U.S. at 836)). The record must be sufficient for the reviewing court to make an assessment that the defendant was made aware of the dangers and disadvantages of self-representation. Goffney, 843 S.W.2d at 584; Burgess v. State, 816 S.W.2d at 431; Halliburton v. State, 928 S.W.2d 650 (Tex. App.-San Antonio 1996, writ ref'd).

In the present case, the record demonstrates that Lewis was given admonitions regarding the various dangers and disadvantages of self-representation. The trial court's admonishments were detailed and involved numerous trial issues. Furthermore, the trial court questioned Lewis regarding his age, level of education, vocation or profession, military experience, mental health history, and medical problems that would prevent him from adequately representing himself. In response to the trial court's inquiries, Lewis stated that he had "great logic" and that his "life experiences" taught him enough to properly represent himself. He also stated that he did not wish to employ counsel or to apply for court-appointed counsel. The record demonstrates that Lewis remained adamant in his desire to represent himself even after he was made aware of the dangers and disadvantages of self-representation.

In view of Lewis's valid invocation of his Faretta right to self-representation, we hold that the trial court did not err in failing to secure a written waiver of counsel and allowing Lewis to represent himself. Lewis's second issue is overruled.

Advising the Defendant of the Right to Self-Representation

In his third issue on appeal, Lewis contends that the trial court erred in the procedure employed in advising him of his right to self-representation. Lewis contends that the trial court's procedures could not yield a valid waiver of his right to counsel or a valid invocation of his right to self-representation. Lewis advances several arguments in support.

First, Lewis contends that the trial court was coercive, threatening, and intimidating in its method of determining whether Lewis wanted to seek a court-appointed attorney. Lewis contends that the trial court intimidated him with threats of prosecution for perjury if he applied for court-appointed counsel. Lewis directs this court to the following exchange:

The Court: Let me finish my caution. I caution you strongly, in applying for court-appointed attorney, that you not make any statements which are not absolutely accurate and correct in order to seek the services of a lawyer which should be appointed to an indigent client. If it is given to me, sir, and if I find out that in fact you are not indigent, and I will make sure that they check, you will suffer the consequences under penalty of law because you will be applying under oath. Do you understand?

Mr. Lewis: I understand and feel threatened, Your Honor.

The Court: You feel what?

Mr. Lewis: I feel threatened. I feel like I've been intimidated by what you're saying.

The Court: No, you're not. That's exactly the point. I am not intimidating you, sir. What I am --

Mr. Lewis: I feel like it.

The Court: What I am telling you is a fact. Make sure what you put in the application is absolutely true and correct. That's not an intimidation. That's a fact. You've been given every opportunity by this Court and every courtesy by this Court in the time that you've been in front of me. Do you understand?

Mr. Lewis: (No response).

The Court: But at some point this Court must take control of the proceedings before it. I have a trial that is coming along with a lawyer who is telling me that you are not assisting him in a case where you insisted on being pro se, where you had large sums of money in your pocket and a cash bond. I now become speculative. You have the benefit of the doubt and the protection of the law. Do you understand?

Mr. Lewis: (No response).

The Court: If you are entitled to an attorney, this Court will give you one. If you are not, you will not get one. It's that simple. That's not intimidation. That's not a threat. That's the law.

I am granting Mr. Ramos's motion to withdraw.

Sir, please make sure that that application is properly filled out; that all the application in there under oath is only true and correct. That was a forewarning to discourage you from doing anything other than giving true and valid information on that application. Do you understand?

Mr. Lewis: I understand that.

Specifically, Lewis contends that when the trial court told Lewis "you will suffer the consequences under penalty of law because you will be applying under oath. Do you understand?," the trial court was threatening Lewis in violation of article 26.04. Tex. Crim. Proc. Code Ann. art. 26.04 (Vernon 1989 & Supp. 2003). Section (r) of article 26.04 provides that a court may not threaten to arrest or incarcerate a person solely because the person requests assistance of counsel. Tex. Crim. Proc. Code Ann. art. 26.04 (Vernon 1989 & Supp. 2003). The record does not reveal any threat in violation of article 26.04. The trial court solely advised Lewis against committing perjury. The trial court did not threaten to arrest or incarcerate Lewis because he was seeking a court-appointed attorney. Furthermore, when Lewis expressed his feelings of intimidation, the trial court again explained to Lewis that the trial court's statements were admonishments and not threats.

Second, Lewis contends that the trial court erroneously considered the fact that Lewis posted a cash bond. Although the trial court's knowledge of the cash bond spurred the trial court's admonishments against falsifying the application for a court-appointed attorney, the trial court's consideration of the cash bond was not in violation of article 26.04 of the Code of Criminal Procedure. Tex. Crim. Proc. Code Ann. art. 26.04 (Vernon 1989 & Supp. 2003). Section (m) of Article 26.04 provides that when determining whether a defendant is indigent, the trial court may not consider whether the defendant has posted or is capable of posting bail. Tex. Crim. Proc. Code Ann. art. 26.04 (Vernon 1989 & Supp. 2003). Here, Lewis did not file an application for a court-appointed attorney, and the trial court's discussion regarding the cash bond did not concern a determination of indigence. Thus, the trial court did not err in considering the fact that Lewis posted a cash bond.

Third, Lewis contends that the trial court had an obligation to appoint substitute counsel upon the withdrawal of court-appointed counsel. When a trial court permits a court-appointed counsel to withdraw, that court must appoint substitute counsel in the absence of a clear showing in the record that the defendant is no longer indigent or that the defendant desires to represent himself. See Fowler v. State, 874 S.W.2d 112, 114 (Tex. App.-Austin 1994, writ ref'd) (addressing appointment of counsel on appeal). Here, the record shows that Lewis adamantly desired to represent himself. Furthermore, the record need not reflect any findings showing an absence of indigence in this case. Ramos had been appointed in the interest of justice and not due to Lewis's indigence, and Lewis did not seek a court-appointed substitute attorney. Thus, the trial court was not obligated to appoint substitute counsel.

Finally, Lewis contends that he did not intelligently and knowingly waive his right to counsel or demand his right to represent himself because he was left with no choice but to represent himself. As stated with regard to Lewis's second issue, the record shows that Lewis was given the required admonishments regarding the dangers and disadvantages of self-representation and that the trial court conducted a sufficient inquiry regarding Lewis's desire to represent himself. Goffney, 843 W.W.2d at 585. Furthermore, when Lewis told the court that he felt he had no option but to represent himself, the trial court explained to him that he could hire an attorney or apply for a court-appointed attorney. Lewis stated that he could not hire an attorney and that he was intimidated by the idea of applying for a court-appointed attorney. Lewis explained:

I read the application. I think the application goes on a witch hunt. I think that the stuff on the application is none of anybody's business. I think it's too probing. I think it's too personal, and I do not wish to subject myself to the questions on that application. Notwithstanding, I want to proceed, have my day in court with a jury trial as soon as possible. The next available date is just fine with me.

The record shows that Lewis did have a choice of counsel, and he chose not to fill out the application for court-appointed counsel or hire an attorney.

The trial court did not err in its procedure of advising Lewis of his right to self-representation, and Lewis intelligently and knowingly waived his right to counsel and invoked his right to self-representation. Lewis's third issue is overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH