Andrew Dennis McGrew v. The State of Texas--Appeal from County Court of Ward County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANDREW DENNIS MCGREW, )

) No. 08-04-00292-CR

Appellant, )

) Appeal from the

v. )

) County Court

THE STATE OF TEXAS, )

) of Ward County, Texas

Appellee. )

) (TC# 24,307)

)

O P I N I O N

Andrew Dennis McGrew appeals his conviction for driving while license suspended. See Tex.Transp.Code Ann. ' 521.457 (Vernon Supp. 2005). A jury found him guilty of the offense and the trial court assessed punishment at 6 months confinement in the Ward County Jail, a fine of $2,000, and $226 in court costs.[1] On appeal, Appellant contends that the trial court abused its discretion by: (1) overruling his objection to consolidation of cases; (2) denying his request for counsel; (3) not recognizing his New Mexico driver=s license; and (4) failing to present all cases together for one verdict. We affirm.

In a consolidated trial, Appellant was tried for driving with license suspended in cause numbers 24,076, 24,307, and 24,465.[2] At trial, Trooper Johnny Jason Anzaldua testified that on February 10, 2003, he observed a green Ford Mustang convertible on Business Interstate 20 in Ward County with a defective license plate light. The officer initiated a traffic stop. The driver, later identified as Appellant, presented his New Mexico driver=s license. Trooper Anzaldua had the New Mexico license run through the DPS database, which showed that Appellant had a suspended/revoked Texas driver=s license for failure to comply with registration requirements as a sex offender. Appellant informed Trooper Anzaldua that he was living in Pecos, but also received mail at a New Mexico address and had gone to New Mexico to get his driver=s license. Appellant, however, was operating a vehicle that was registered in Texas. Trooper Anzaldua arrested Appellant for driving with license suspended. On cross-examination, Trooper Anzaldua agreed that Appellant presented a valid New Mexico license, but also stated that it was invalid for Texas.

On June 4, 2003, Monahans Police Officer Alex Leon observed a green Ford Mustang swerve within a traffic lane on West Sealy. Officer Leon initiated a traffic stop to do a welfare check on the driver. The driver, Appellant, gave the officer a New Mexico driver=s license. Officer Leon ran a check through the Texas Data Systems, which returned information on a Texas driver=s license for Appellant. The dispatcher advised Officer Leon that the Texas license had been suspended and/or revoked for failure to register as a sex offender. Appellant denied ever having a Texas driver=s license and when the officer ran the New Mexico license through the system, it also showed that he had a license through New Mexico as well. Appellant gave the officer a Pecos address and did not say he was living in New Mexico. Officer Leon explained to Appellant that a Texas driver=s license was issued first and that it took prominence over the New Mexico license. Officer Leon gave Appellant a citation and told Appellant that he would investigate the matter further. On June 6, the dispatcher confirmed with the DPS Driver Improvement Control Division that Appellant=s driver=s license has been revoked indefinitely because he failed to renew his driver=s license and to meet the requirements as a sex offender. Appellant=s driver=s license had been revoked on April 11, 2002.[3]

Officer Leon obtained an arrest warrant for Appellant and arrested him on July 22, 2003. On that day, Officer Leon saw Appellant driving an >88 Cadillac Sedan on North Eva. Officer Leon activated the overhead lights to conduct a traffic stop. Appellant did not present a valid Texas license to the officer. Officer Leon subsequently charged him again for driving while license suspended on the same date.

Appellant admitted into evidence his driver=s license record in the state of New Mexico for purposes of showing that he had a valid New Mexico license. The license record shows that his New Mexico license expires on March 18, 2006 and lists an address in Carlsbad, New Mexico. The record also indicates that the New Mexico license was issued on January 22, 2002.

Turning first to his second issue, Appellant argues that the trial court abused its discretion in denying his request for counsel. Specifically, he asserts that the trial court erred by not appointing an attorney as first chair, or alternatively, should have appointed standby counsel. The record shows that Appellant requested appointment of counsel on October 23, 2003. Greg Holly was appointed as his counsel on the same day. On June 8, 2004, Mr. Holly filed a motion to withdraw as counsel, stating that he was unable to effectively communicated with Appellant so as to adequately represent him. Appellant did not agree to nor did he sign the withdrawal. On the same date, the trial court granted the motion, noting that A[i]f Mr. McGrew wishes to request another lawyer, then the court will consider the request.@

At the pretrial hearing on motions on the day of trial, the trial court stated the following:

[A]nd Mr. McGrew, I realize you=re not being represented by counsel here today. I realize you had counsel appointed, that that counsel withdrew and you=ve never requested any other counsel.

Appellant agreed with the court=s statement and in response to the court=s question, A[d]o you intend to represent yourself this morning?@ Appellant stated that he needed counsel because he has not Abeen able to get things done by myself.@ The trial court noted that Appellant had previously requested that he represent himself on several occasions and Appellant agreed with this statement. However, Appellant complained that he had not received the file from his last attorney. After some discussion, Appellant agreed that except for some letters that he had written to his attorney requesting to go to trial, he had the complete copy of his file. The trial court held that it was going to grant Appellant=s request to represent himself in the case.

Appellant argues that before a defendant can voluntarily and knowingly waive his constitutional right to an attorney, he must be warned by the trial judge on the dangers and disadvantages of proceeding without an attorney. The Sixth Amendment implies the right to self representation, and the right to assistance of counsel is intended only to supplement that right. Faretta v. California, 422 U.S. 806, 829 30, 95 S. Ct. 2525, 2538-39, 45 L. Ed. 2d 562 (1975). The Sixth and Fourteenth Amendments to the United States Constitution guarantee the right of an accused to conduct his or her own defense. Id. at 807, 95 S. Ct. at 2527. The decision to proceed pro se is made knowingly and intelligently if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self representation. Id. at 835, 95 S. Ct. at 2541. As the Court of Criminal Appeals explained in Johnson v. State, 760 S.W.2d 277 (Tex.Crim.App. 1988):

[T]he record must be sufficient for the reviewing court to make an assessment that appellant knowingly exercised his right to defend himself. Admonishments of defendants who wish to proceed pro se should include an effort to ensure that the defendant is aware of the practical disadvantages of representing himself. The defendant should be aware that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights.

Id. at 279.

From the record, we know that Appellant confirmed that he had requested to represent himself on previous occasions, but the record contains no waiver of his right to counsel. See Tex.Code Crim.Proc.Ann. art. 1.051(g)(Vernon 2005); see also Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App. 1992)(although Article 1.051(g) is not mandatory, 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). Further, the court did not advise Appellant of the dangers and disadvantages of self-representation before granting his alleged request for self-representation. Based on the record before us, we do not know whether or not Appellant was ever made aware of the danger and disadvantages of self-representation in any prior hearings.[4]

Because the record does not reflect that the Appellant received sufficient admonishments prior to the court=s granting of his request to represent himself, we will conduct a harm analysis for constitutional error. See Fulbright v. State, 41 S.W.3d 228, 235 (Tex.App. -Fort Worth 2001, pet. ref=d). According to Rule 44.2(a), we must reverse the trial court=s judgment unless we determine beyond a reasonable doubt that the alleged error did not contribute to Appellant=s conviction or punishment. Tex.R.App.P. 44.2(a); Fulbright, 41 S.W.3d at 236, citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Thus, we must determine beyond a reasonable doubt if Appellant=s ineffective waiver and lack of counsel contributed to his conviction or punishment.

The record shows that Appellant was previously advised of his right to representation by counsel in the trial of the pending charges. On June 8, 2004, the trial court granted Appellant=s counsel=s motion to withdraw. In the order, the court directed Appellant=s counsel to provide immediate written notification to Appellant of any additional settings or deadlines of which Appellant had not already been notified. The order also informed Appellant that any request for another counsel would be considered by the court. Subsequently, Appellant filed a pro se writ of habeas corpus, which the State answered by general denial. On July 12, 2004, Appellant filed a pro se motion objecting to the State=s general denial and re-asserted his right to habeas corpus relief. On the same date, Appellant also filed a pro se motion objecting to consolidating trials. The court heard Appellant=s argument on both motions before trial and both were denied.

It is clear that Appellant intended to represent himself and had done so before his request for another counsel. When Appellant did request counsel, his complaint was that he had not received a file from his last counsel. According to the State, it has an open-file policy in criminal cases and made a complete copy of the files in Appellant=s case, which was provided to Appellant because his last counsel was on vacation. Appellant agreed that he had a complete copy of the file from the County Attorney=s office. Appellant never requested stand-by counsel.

At the trial, the trial court explained voir dire and jury selection to Appellant, stating that Appellant had chosen to represent himself. Appellant pleaded not guilty to every charge. Appellant gave opening argument to the jury. In his opening argument, Appellant presented his defense theory in the case, arguing that he had moved to New Mexico and obtained a New Mexico driver=s license, at which time his Texas driver=s license was declared no longer valid, therefore he could not register as a sex offender in Texas. Appellant asserted in his defense that there was no case against him because he had a valid New Mexico driver=s license while the Texas license was not valid when it was suspended. In the State=s case-in-chief, Appellant

cross-examined both of the State=s witnesses, Officers Anzaldua and Deleon, questioning them extensively on the validity of his New Mexico driver=s license and its issuance before the Texas license was suspended. After the State rested, Appellant introduced into evidence the official records on his New Mexico license to verify that he had a valid New Mexico license. In his closing argument, he again argued that his New Mexico license was valid, that the failure in communication was not his fault, and that he was not guilty. The jury found Appellant guilty in causes 24,307 and 24,465, but not guilty in cause 24,076. At the punishment phase, Officer Orlando Orona testified about Appellant=s criminal history and record. Appellant

cross-examined the officer on the particular convictions and confirmed that he had a driving while suspended license charge that was dismissed. In closing, Appellant argued that he did not really have any trouble in terms of convictions, just some tickets. The trial court sentenced Appellant to six months confinement in the Ward County Jail, a fine of $2,000, and $226 in court costs, with the sentence in cause 24,465 to run consecutively. Appellant was appointed counsel for his appeal.

After reviewing the entire record, we conclude that the trial court=s failure, if any, to admonish Appellant thoroughly about the dangers and disadvantages of self-representation before he decided to waive counsel and represent himself would not have resulted in a different outcome of Appellant=s trial. Rather, the record shows an absence of harm to Appellant who adequately prepared his own defense, participated in cross-examination, introduced evidence at trial, and was steadfast in his demand to go to trial on the misdemeanor charges without further delay. Accordingly, we hold beyond a reasonable doubt the alleged error did not contribute to Appellant=s conviction or punishment. See Tex.R.App.P. 44.2(a). Issue Two is overruled.

In Issue One, Appellant argues that the trial court abused its discretion in overruling his objection to consolidation of cases. Specifically, Appellant argues that the not guilty finding in cause number 24,076 should have applied to causes numbers 24,307 and 24,465. Appellant cites no authorities in support of his contention, therefore we find that the issue has been waived for inadequate briefing on appeal. See Tex.R.App.P. 38.1(h); Jackson v. State, 50 S.W.3d 579, 591 n.1 (Tex.App. Fort Worth 2001, pet. ref=d)(explaining that by raising an issue and failing to present any argument or authority on that issue, the party waives that issue). In like manner, in his fourth issue, Appellant contends that the trial court abused its discretion by Anot presenting all cases together for one verdict@ after consolidation. Appellant has failed to provide any argument on this issue, therefore we conclude that he has likewise waived this issue for inadequate briefing. See Tex.R.App.P. 38.1(h). Issues One and Four are overruled.

In his third issue, Appellant complains that the trial court abused its discretion in not recognizing his New Mexico driver=s license. Because the issue of whether Appellant had a valid New Mexico driver=s license prior to the suspension of a non-existent Texas driver=s license was a question of fact for the jury, the trial court could not have abused its discretion by failing to take judicial notice of that fact. Issue Three is overruled.

We affirm the trial court=s judgment.

April 6, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant was also charged with driving with license suspended in cause numbers 24,465 and 24,076. Appellant was found not guilty in cause number 24,076. Appellant has appealed the judgment rendered in cause number 24,465, which this Court has affirmed in an opinion issued this same date. See McGrew v. State, No. 08-04-00293-CR (Tex.App.--El Paso April 6, 2006, n.p.h.)(not designated for publication).

[2] Appellant was also charged with driving with license suspended in cause numbers 24,653 and 24,809. Both of these cases, however, were dismissed before trial.

[3] The State admitted into evidence Appellant=s driver=s license record in the state of Texas, which states that his driver=s license was revoked on April 11, 2002 Aas authorized in Texas Transportation Code 521 for failing to renew/apply for a driver license/ID as required per Chapter 62 Texas Code of Criminal Procedure.@ The record also shows that as of May 16, 2001, AClassified-Sex Offender required until the registration requirement per Chapter 62 Texas Code of Criminal Procedure expires.@

[4] The State alleges in its brief that the trial judge in previous pretrial hearings completely advised Appellant under Article 1.051(c) & (h) of the Texas Code of Criminal Procedure, but none of its citations to the record support this contention. The record only shows that the State prosecutor stated that A[o]n numerous occasions, I=ve read the letters where [Appellant] fired his attorney that was court appointed on behalf of the Court, where he said he wanted to represent himself, so I don=t know. I mean I think it=s primarily dilatory, which means it=s primarily for the purposes of delay.@ The docket sheet indicates that pretrial settings were held on October 27, 2003, November 20, 2003, and January 7, 2004. These settings occurred prior to Appellant=s appointed counsel=s filing of the motion to withdraw.