Sanchez, Thomas v. The State of Texas--Appeal from 230th District Court of Harris County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00135-CR
______________________________
THOMAS SANCHEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th Judicial District Court
Harris County, Texas
Trial Court No. 885776
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

A Harris County jury convicted Thomas Sanchez, a pro se defendant assisted by standby counsel, of possession of a controlled substance and assessed punishment at fifty years' confinement. Represented by counsel on appeal, Sanchez contends the trial court fundamentally erred in (1) improperly commenting on the weight of the evidence, (2) misguiding the jury as to its proper function, and (3) offering unsolicited and incorrect legal advice.

Sanchez was charged with possession of a controlled substance after patrol officers, executing a warrant, recovered from his car thirteen individually wrapped pieces of tar heroin concealed in a candy container. Sanchez contends that two events during the ensuing trial-the trial court's instructions to the venire before voir dire and its exchange with Sanchez before the punishment phase of the trial-rose to the level of fundamental error. In its instructions to the venire, the trial court commented on jury responsibilities and the wisdom of Sanchez's decision to represent himself. In the trial court's exchange with Sanchez, outside the jury's presence, it questioned Sanchez's intent to enter pleas to the indictment's enhancement paragraphs that contradicted his earlier sworn testimony.

ANALYSIS

To preserve error for appeal, trial counsel, or in this case a pro se defendant, must generally make his or her complaint known through a timely request, objection, or motion to the trial court and must obtain either a ruling from the court or show its refusal to rule. Tex. R. App. P. 33.1(a). Relying on Rule of Evidence 103(d) and the plurality opinion in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (Keasler, J., concurring), however, Sanchez contends the trial court's comments resulted in fundamental error of constitutional dimension, requiring no objection in order to preserve the appeal. Tex. R. Evid. 103(d).

In Blue, a plurality of the Texas Court of Criminal Appeals relied on Rule 103(d) to take notice of fundamental error, overcoming the general requirement for preservation of error by objection. Regardless of whether the plurality's reliance on the Rules of Evidence was misplaced, see Blue, 41 S.W.3d at 136-37, it is clear that existing caselaw mandates review of those rights "considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection" and which therefore cannot be forfeited or extinguished by inaction alone. Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). When the trial court in Blue explained to the venire that the defendant was seriously considering entering into a plea agreement with the State, its comments "'vitiated the presumption of innocence' before the venire, adversely affecting [the] right to a fair trial." Blue, 41 S.W.3d at 132 (citing United States v. Bray, 546 F.2d 851, 859 (10th Cir. 1976)). This statement constituted fundamental error and required no objection. Id.

Contrary to Sanchez's contention that the trial court's statements to the venire in this case similarly constituted fundamental error, it appears the trial court's statements did not rise "to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury." Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Sanchez argues that, when the trial court explained to the jury that he was to represent himself with the assistance of standby counsel, the court unnecessarily elaborated, diminishing the credibility of his defense and depriving him of a fair trial. Specifically, the court addressed Sanchez's lack of legal training and education, that the potential pitfalls of self-representation had been exhaustively explained to him, and that the jury was obligated to ensure he followed the same rules that an attorney would be required to follow.

In context, the trial court's statements concerning Sanchez's decision to represent himself appear not to have been calculated to prejudice the veniremembers, but seem to have been intended to impress on them that no consideration was to be given to his status as a pro se defendant-that he would be held to the same standard as any defendant represented by counsel. The trial court clearly indicated that those sitting on the jury would be required to reach a verdict based on the evidence, irrespective of Sanchez's self-representation.

The second event of which Sanchez complains took place out of the presence of the jury before the punishment phase of trial and involved the trial court's questioning Sanchez's intent to enter pleas to the indictment's enhancement paragraphs that contradicted his earlier sworn testimony. Sanchez contends that, by doing so, the court commented on the weight of the evidence and caused him to plead true to, and stipulate to evidence of, his prior convictions, thus undermining his defense. The record reflects the trial court's rather parent-like counseling of Sanchez about how the jury might respond to a perceived inconsistency between his prior testimony, in which Sanchez admitted having been the person convicted of prior offenses used for enhancement purposes, and a subsequent plea by Sanchez of "not true." During that exchange, the trial court made a comment that the court disliked lying but also repeatedly assured Sanchez that the decision on how to respond to the enhancement allegations rested with Sanchez alone. Sanchez then privately conferred with his standby counsel before pleading true to enhancements and stipulating to evidence proffered by the State. While we should not be understood as approving the trial court's efforts to counsel or influence Sanchez, we find no fundamental error therein.

The trial court's comments to the venire and its later exchange with Sanchez preceding the punishment phase of trial were not so egregious as to constitute fundamental error. Sanchez's failure to object at trial, therefore, waived any error on appeal.

We affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: August 29, 2003

Date Decided: September 8, 2003

 

Do Not Publish