Victor Holbert v. The State of Texas--Appeal from 218th Judicial District Court of Karnes County

MEMORANDUM OPINION
No. 04-05-00857-CR
Victor HOLBERT,
Appellant
v.
The State of TEXAS,
Appellee
From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 04-12-00204-CRK
Honorable Ron Carr, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: July 25, 2007

 

AFFIRMED

 

Appellant Victor Holbert, proceeding pro se, was convicted by a jury on five charges of harassment and assessed a punishment of life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Holbert asserts four main errors: (1) denial of his right to confrontation and cross-examination; (2) ineffective assistance of counsel; (3) restriction of movement within the courtroom; and (4) factual insufficiency of the evidence.

Factual Background

On April 23, 2004, Appellant Victor Holbert, an inmate at the Texas Department of Criminal Justice - Connally Unit, climbed the bars of the dayroom and refused to exit the room. Five officers entered the room in order to forcibly eject Holbert. Holbert then squirted feces from a bottle onto the officers. At trial, Holbert elected to proceed pro se, but the trial court appointed standby counsel. The jury convicted Holbert on five counts of harassment, found the enhancement charges to be true, and assessed life imprisonment.

Confrontation Clause

On appeal, Holbert asserts the trial court violated his constitutional right to present a defense by denying him the opportunity to confront and cross-examine the witnesses against him. U.S. Const. VI, XIV; Tex. Const. art. 1 10. More specifically, Holbert contends that the trial court abused its discretion by denying him the chance to introduce certain evidence, including his medical and grievance records. Holbert's defense was based on a conspiracy by the prison officials to deny him medical care.

The trial court ruled the grievance records inadmissible because they were not properly authenticated, and limited the witnesses' testimony to their personal knowledge of the incident. Although Holbert filed applications for subpoenas, Dr. Rojas did not receive a subpoena and was not asked to produce any medical records at trial. Dr. Rojas's testimony at trial was limited by his lack of records.

An appellate court reviews a trial court's decision to admit evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). An abuse occurs only upon a determination that the trial court's decision was so wrong as to lie outside the zone of reasonable disagreement. Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002). To be admissible, the proponent of evidence must properly authenticate documents. Tex. R. Evid. 901. Because Holbert did not properly authenticate the grievance records, the trial court did not abuse its discretion in excluding the records. As to the medical records, because Dr. Rojas was never subpoenaed to produce documents at trial, there is nothing to review on appeal. Tex. R. App. P. 33.1. We therefore overrule this issue on appeal.

Ineffective Assistance of Counsel

Holbert argues he was deprived of his right to effective assistance of counsel, in violation of the United States and Texas constitutions. U.S. Const. VI, XIV; Tex. Const. art. 1 10. The State contends Holbert waived his right to the assistance of counsel when he elected to proceed pro se. We agree. The Sixth and Fourteenth Amendments give "[t]he right to defend . . . directly to the accused; for it is he who suffers the consequences if the defense fails." Faretta v. California, 422 U.S. 806, 819-20 (1975). "[I]t is axiomatic that a defendant who chooses to forgo the assistance of counsel and represent himself at his trial also necessarily waives his right to complain on appeal that he was rendered ineffective assistance. The waiver of the former necessarily includes the latter." Robinson v. State, 16 S.W.3d 808, 813, n.6 (Tex. Crim. App. 2000).

Once a defendant chooses to represent himself, the trial court must admonish the defendant so that the defendant is aware of the dangers and disadvantages of self-representation, and must establish that the defendant "'knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835 (citing Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). A constitutionally effective wavier of counsel requires the defendant to competently, voluntarily, knowingly and intelligently waive his right to counsel. Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997).

After Holbert was clearly admonished by the trial court as to the dangers and disadvantages of self-representation, he waived his right to counsel on the record. (1) At that point, the trial court had no choice but to let Holbert proceed pro se. Blankenship v. State, 673 S.W.2d 578, 583-84 (Tex. Crim. App. 1984) (en banc). Yet, the trial court also appointed standby counsel, telling Holbert he could confer with appointed counsel. "[H]e's simply there to reply to you[,] to speak only when you speak to him."

Holbert appears to argue that standby counsel had a positive duty to participate in the proceedings, but provides no case law to support this contention. Instead, a review of case law frames standby counsel's duty in the negative: counsel may not undermine the defendant's "actual control over the case" he presents or "destroy the jury's perception that the defendant is representing himself." McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). If standby counsel participates with the defendant's express approval or by invitation to participate, the claim that the "participation in question deprived the defendant of control over his own defense" cannot stand. Id. at 182.

The record reflects Holbert sought trial counsel's assistance at least once, during a bench conference and at the trial court's prompting. Thereafter, Holbert conducted his defense throughout the entirety of the trial, including cross-examining witnesses, presenting his own witnesses, and giving a closing argument. Because the record shows the waiver was competently, voluntarily, knowingly, and intelligently made after proper admonishments by the trial court and Holbert conducted his own defense, he cannot claim ineffective assistance of counsel. We overrule this issue on appeal.

Restriction of Movement

Holbert asserts the trial court violated his constitutional rights when he was brought into the courtroom from a holdover cell, was not allowed to approach witnesses, and remained in handcuffs throughout the trial. U.S. Const. VI, XIV; Tex. Const. art. 1 10.

During a pre-trial hearing, Holbert requested removal of the box covering his handcuffs for more mobility in organizing his papers, but did not request removal of the handcuffs. The trial court granted Holbert's request. During trial, the jury did not see any restraints on Holbert. But, Holbert argues, the jury saw a guard and saw him enter and leave from a different door. The trial court instructed both parties to remain at their counsel tables during the trial. The record does not reflect either party violated this instruction. After he was allowed to take off the handcuffs box, Holbert made no further requests or any objections regarding the restriction of movement.

To preserve error for appeal, Rule 33.1(a) requires "a timely, specific objection and a ruling by the trial court." Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004) (en banc). Even constitutional errors may be waived if not properly preserved. Id. (holding all complaints, except those involving systemic requirements or rights that are waivable only, are forfeited by failure to comply with Rule 33.1(a)). Because Holbert failed to object at trial, he waived any error and cannot raise it on appeal. Accordingly, we overrule this point.

Factual Sufficiency

In a factual sufficiency review, an appellate court must consider all the evidence in a neutral light and only reverse if: (1) the evidence is so weak as to make the verdict clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). However, an appellate court cannot substitute its judgment for that of the fact finder, who is the sole judge of the weight and credibility of witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Holbert asserts the evidence is factually insufficient for these reasons: the State did not prove the feces were from a person; none of the officers' reports stated that feces got on their uniforms; and the video and Polaroid cameras broke at "the most opportune time." (2)

Holbert was indicted under section 22.11 of the Texas Penal Code. Tex. Pen. Code 22.11 (Vernon 2006) (entitled "Harassment By Persons in Certain Correctional Facilities; Harassment of Public Servant"). The pertinent part of section 22.11 reads:

(a) A person commits an offense if, with the intent to assault, harass, or alarm, the person:

 

(1) while imprisoned or confined in a correctional or detention facility, causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal; or

 

(2) causes another person the actor knows to be a public servant to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of the public servant's official power or performance of an official duty.

Id. Holbert's indictment charged him with assaulting the officers with the "feces of the another person or the feces of the defendant."

Holbert first argues the evidence is insufficient to support the verdict because the State failed to prove the feces came from him or another human, as was charged in the indictment. Anita Mathew, a chemist who tested each officer's shirt, testified that each shirt tested positive for urine and feces. Her report only showed the feces came from a mammal and did not distinguish human and animal feces. On appeal, Holbert asserts that "[s]urely, there are guard dogs that the inmates could have contact with," but does not point to any place in the record indicating that it was possible the feces came from a guard dog. The evidence showed that at the time of the offense, Holbert was confined alone to a cell in administrative segregation and was not allowed to leave his cell unless strip-searched, handcuffed and escorted by two officers. A jury may draw reasonable inferences from the evidence before it. See McKinny v. State, 76 S.W.3d 463, 469 (Tex. App.--Houston [1st Dist.] 2002, no pet.). Because there was no evidence that Holbert had contact with a guard dog, the jury could not reasonably infer that the feces came from a dog, but the jury could reasonably infer the feces came from a human.

Holbert further argues, if he was searched and escorted to the dayroom, he could not have carried a bottle to the dayroom in order to squirt feces on the officers. The State presented evidence that an inmate in the dayroom is able to receive items from other inmates through "fishing." (3) Although Holbert brought forth testimony from an inmate who stated the shampoo bottle Holbert had in the dayroom was too big to transport by fishing, as the sole judge of the weight and credibility of the witnesses and their testimony, the jury could resolve these conflicts in the evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997) (en banc).

Holbert also contends the evidence is factually insufficient because there is no proof that the officers came into contact with the feces. Each officer filled out three reports regarding the incident: one regarding the use of force when removing Holbert from the dayroom, an inner office communication, and a voluntary statement for the criminal investigators. None of the five officers' reports indicate they were hit by the feces, but all reported Holbert squirted feces from a bottle at the team of officers. The evidence also shows the officers' shirts were stained with feces after the incident. Although the officers' reports did not state each officer came into contact with the feces, the jury could draw the reasonable inference that the officers did come into contact with the feces during the use of force.

Finally, Holbert argues the evidence is factually insufficient because no still photos or video footage documented the stained shirts or use of force incident. Holbert asserts the officers were required by prison policy to take photographic evidence of the shirts before sending them for analysis, but Holbert did not introduce a copy of any such policy into evidence. To the contrary, the officers testified prison policy did not require photographs of all evidence sent for analysis.

The State introduced a videotape taken the day of the incident. The camera was positioned in the control picket, which is located near the dayroom. The videotape showed Holbert climbing the bars of the dayroom, but before the officers entered the dayroom, the footage ended. Thomas Hinkle, the Administrative Segregation Captain at the time of the incident, testified he believed the missing footage was due to a battery change and the subsequent mistake by the recording officer in failing to push the record button again.

Holbert presented eyewitness testimony of other inmates, one of whom testified he had a clear view of the dayroom. The inmate stated he saw Holbert throwing concrete chunks at the officers, and saw Holbert holding a bottle which appeared to contain feces, but did not see Holbert squirting anything on the officers. The other inmates gave similar testimony; no inmate saw Holbert squirt feces on the officers.

Whether the jury believed the officers' testimony over the inmates' is a question of credibility, and we must give deference to the fact finder with regard to the credibility and demeanor of witnesses. Cain, 958 S.W.2d at 408. After reviewing the record in a neutral light, we conclude the evidence was factually sufficient to support the verdict. Watson, 204 S.W.3d at 414. We therefore overrule this appellate point.

Conclusion

The trial court did not violate Holbert's confrontation clause rights by excluding certain documents. Holbert competently, voluntarily, knowingly and intelligently waived his right to counsel, and his ineffective assistance of counsel complaint is without merit. Holbert failed to preserve error regarding the restriction of movement within the courtroom. Finally, the evidence is factually sufficient to support the conviction. For these reasons, we affirm the judgment of the trial court.

Rebecca Simmons, Justice

Do Not Publish

 

1. Holbert's brief asserts there is no evidence in the record that he was properly admonished; however, the complete record shows that an entire Faretta hearing was held.

2. Holbert also contends the jury was full of jurors sympathetic to the State, but makes no argument or reference to the record regarding this alleged error. Accordingly, we do not discuss this point. Tex. R. App. P. 38.1.

3. Inmates are able to transfer objects between their cells and the dayroom by "fishing." Officer James Flores explained that an inmate can fashion a rope out of a bed sheet, tie an object to the sheet, and throw the object through a slot at the bottom of their door. The person in the dayroom can then untie the sheet and retrieve the object.