Abraham Hicks v. The State of Texas--Appeal from 262nd District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-97-144-CR

ABRAHAM HICKS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 262nd District Court

Harris County, Texas

Trial Court # 745262

O P I N I O N

Appellant Hicks appeals from his conviction for injury to an elderly person, for which he was sentenced to 12 years in the Texas Department of Criminal Justice-Institutional Division.

Walter Kuykendall, the victim, is a 67-year-old retired soldier. At 6:30 a.m. on April 25, 1996, he went to the rear of the Rice Supermarket in his truck, as was his custom. Kuykendall had the manager's permission to take left-over lettuce from the dumpster to feed his rabbits at home. He had done this for 20 years. The rear of the store, where the dumpster is located, is protected by a cyclone fence with a gate.

Appellant was also inside the fence at this time and closed the gate as Kuykendall was attempting to leave. Kuykendall got out of his truck to ask Appellant to open the gate and Appellant struck him with a baseball bat. Appellant yelled that the stuff in the dumpster belonged to him. Appellant told Kuykendall he was going to kill him; struck him three times in the head with the bat; and many times on his body.

Melvin Brown, a delivery man, was in the rear of the Rice Supermarket store. He confronted Appellant after the assault; Appellant admitted he beat Kuykendall; and gave Brown the bat.

Kuykendall suffered a skull fracture ; was unconscious 30 days; underwent brain surgery; and has permanent injuries as a result of the beating.

Appellant was indicted for injury to a person over 65 years-of-age by striking him with a club on April 25, 1996, in this cause No. 745262. The indictment states on its face: "Prior Cause No. 721226" [aggravated assault with a deadly weapon].

Trial was to a jury which found Appellant guilty. Appellant elected to have the judge assess punishment. The judge assessed punishment and sentenced Appellant to 12 years in prison.

Appellant appeals on 2 points of error:

Point 1: The trial court committed reversible error by failing to adequately admonish Appellant of the dangers and disadvantages of self representation in this cause.

On January 27, 1997, Judge Mark Ellis called Cause 721226, State v. Abraham Hicks, Assault with a Deadly Weapon. Appellant stated he wanted to waive his right to counsel and represent himself. Judge Ellis conducted a hearing covering 40 pages of the statement of facts, during which he gave Appellant a most thorough admonishment on the dangers and disadvantages of self representation.

The court then found: "That Appellant's waiver of attorney is voluntary, it is knowledgeable, that you know what you are doing, this is the last time I'm going to say anything. I think it s a bad idea to represent yourself, but it's not my decision to make." Judge Ellis then continued the hearing to January 30, 1997. At the January 30 hearing, Judge Ellis appointed Honorable Tyrone Moncriffe, an experienced criminal attorney, as "back up counsel" for Appellant, "to be present with him during hearings and trial and for the purpose of giving advice if Appellant should ask for same."

On February 20, 1997, Judge Doug Shaver called Cause 721226, State of Texas v. Abraham Hicks, Aggravated Assault with a Deadly Weapon, and Cause 745262, State of Texas v. Abraham Hicks, Serious Bodily Injury to an Elderly Person, to rule on pretrial motions. Present were Appellant and attorney Moncriffe. Judge Shaver then gave Appellant further admonitions concerning the dangers of self representation. Appellant responded, "O.K." Judge Shaver made a docket entry: "The court admonished the def. to self rep."

On March 3, 1997, Judge Jan Hughes called Cause 745262 (this case) for trial. The State and Appellant both announced ready. Judge Hughes stated that "Appellant was present, that seated with him was an attorney, Mr. Tyrone Moncriffe, who will be advising him during the trial; Appellant wants to be his own lawyer; that he has been admonished of the consequences; that he has been amply given the warnings we have to give defendants who want to represent themselves."

A defendant has the right to prosecute his legal defense on his own and without the aid of counsel. Hathorn v. State, 848 S.W.2d 101, 122 (Tex. Crim. App. 1992). To invoke the right of self representation, a defendant should be made aware of the dangers and disadvantages of self representation so 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, 584 (Tex. Crim. App. 1992).

In this case Appellant was admonished on three different occasions. Appellant complains his first admonishment by Judge Ellis was in Cause 721226, the aggravated assault with a deadly weapon indictment. The record shows that Cause 721226 was a prior indictment of Cause 745262 (this cause) but, in any event, Appellant was admonished twice in this cause. While Appellant was permitted to represent himself, the trial court appointed Mr. Moncriffe, an experienced criminal lawyer, to advise and assist him. Appellant was properly admonished.

Point 1 is overruled.

Point 2: The trial court abused its discretion by admitting into evidence a prior misdemeanor conviction for injury to a child, offered for impeachment, which was similar to the offense charged (injury to an elderly person), contrary to Texas Rules of Criminal Evidence 609(a).

The State offered to prove that Appellant was convicted of injury to a child in 1993. Appellant's counsel objected that the evidence was irrelevant. The trial court overruled the objection and admitted the evidence. The issue has not been preserved on appeal.

At trial the objection was that the evidence was irrelevant; on appeal Appellant complains the evidence was improper for impeachment under Rule 609.

For an issue to be preserved on appeal there must be a timely objection which specifically states a legal basis for objection; an objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

Moreover the matter was harmless. Evidence of Appellant's guilt was overwhelming. We determine beyond a reasonable doubt that the evidence made no contribution to Appellant's conviction or punishment. Tex. R. Crim. Evid. 81(b)(2).

Point 2 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 1, 1997

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