Carolyn Johnson v. The State of Texas--Appeal from County Court at Law No. 5 of Travis County

JOHNSON TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00065-CR
Carolyn Johnson, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. 376,971, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING

Appellant Carolyn Johnson was convicted of driving while intoxicated ("DWI"). See Act of May 27, 1983, 68th Leg., R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), since amended and codified at Tex. Penal Code Ann. 49.04). The court sentenced her to 120 days in jail and assessed a $1000 fine, probating all the jail time and all but $400 of the fine. In four points of error, appellant complains that the trial court erred in refusing to appoint counsel to represent her on appeal, in failing to adequately admonish her on the disadvantages of proceeding pro se, and in admitting an edited DWI videotape into evidence. We will affirm the conviction.

 
BACKGROUND

Appellant retained an attorney to represent her at trial. After appellant was sentenced, the trial court permitted the attorney to withdraw pursuant to his written contract with appellant, which stated that "the legal fee does not include services or expenses for an appeal or retrial of this matter." Appellant requested court-appointed counsel to defend her on appeal, but the trial court found appellant was not indigent at a January 5, 1994 indigency hearing and denied her request.

After retaining new counsel for her appeal, appellant raised four points of error. Appellant contends that the trial court erred in: (1) failing to find she was indigent because she received no assistance of counsel at the indigency hearing and because the court did not adequately admonish her of the dangers and disadvantages of proceeding pro se; (2) overruling her oral motion for new trial because she received no assistance of counsel at the indigency hearing and because the court did not adequately admonish her of the dangers and disadvantages of proceeding pro se; (3) allowing the State to edit the audio portion of a DWI videotape in a manner that violated her rights to a fair trial; and (4) allowing the State to introduce into evidence any portion of the DWI videotape created after she invoked her right to an attorney and her right to remain silent.

 
DISCUSSION

We first address appellant's contention that the trial court committed reversible error at the indigency hearing. Appellant's first two points of error are based on her claim that a defendant is entitled to representation of counsel at an indigency hearing and that in the absence of such representation, the trial court is required to admonish the defendant of the dangers of self-representation.

Appellant was represented by retained counsel at trial, but trial counsel withdrew after appellant was sentenced. Appellant requested court-appointed representation and a free statement of facts to appeal her DWI conviction. Article 26.04 of the Code of Criminal Procedure outlines the procedure for determining a defendant's eligibility for court-appointed counsel. Article 26.04 requires in pertinent part:

 

(c) A defendant who requests a determination of indigency and appointment of counsel shall:

 

(1) complete under oath a questionnaire concerning his financial resources;

 

(2) respond under oath to an examination regarding his financial resources by the judge or magistrate responsible for determining whether the defendant is indigent; or

 

(3) complete the questionnaire and respond to examination by the judge or magistrate.

 

(d) Before making a determination of whether a defendant is indigent, the court shall request the defendant to sign under oath a statement substantially in the following form:

 

"On this _____ day of _________, 19___, I have been advised by the (name of the court) Court of my right to representation by counsel in the trial of the charge pending against me. I certify that I am without means to employ counsel of my own choosing and I hereby request the court to appoint counsel for me. (signature of the defendant)"

 

Tex. Code Crim. Proc. Ann. art. 26.04(c), (d) (West 1989). In this case, the trial court complied with Article 26.04. Appellant was granted a hearing on indigency and responded under oath to the trial court's questions regarding her financial resources. Appellant also signed a form acknowledging that she had been informed of her right to counsel and that she would be entitled to a court-appointed attorney if found indigent. The trial court then determined that appellant was not indigent and, thus, not entitled to court-appointed counsel for purposes of her appeal.

We must first determine whether a convicted defendant who was represented by retained counsel at trial and who seeks a finding of indigency for purposes of appeal is entitled to court-appointed counsel during an indigency hearing. Second, if the defendant is not entitled to court-appointed counsel, we must determine whether the trial court is required to admonish a defendant of the dangers and disadvantages of representing herself at an indigency hearing.

Appellant sought free legal counsel for purposes of appeal and not for purposes of her indigency hearing. "The Sixth Amendment to the United States Constitution guarantees that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.'" Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994). A defendant--indigent or otherwise--is entitled to be represented by counsel in a criminal matter, but only in an adversarial judicial proceeding. Tex. Code Crim. Proc. Ann. art. 1.051(a), (c) (West Supp. 1995). The statute does not define adversarial judicial proceedings, but we note that, under any definition, such proceedings necessarily commence at some point during the pretrial stages. We must determine whether an indigency hearing constitutes a "critical stage" of adversarial judicial proceedings so as to invoke the right to counsel.

 

Not every event following the inception of adversary judicial proceedings constitutes a "critical stage" so as to invoke the right to counsel under the Sixth Amendment. In assessing whether a particular stage of the pre-trial proceeding is a "critical" one, the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. In essence, we must scrutinize any pre-trial event with a view to ascertaining whether presence of counsel is necessary to assure fairness and the effective assistance of counsel at trial, which is, after all, "the core purpose of the counsel guarantee . . . , when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor."

 

Green, 872 S.W.2d at 720-21 (citations omitted). Green involved pretrial proceedings, but the rationale underlying the critical-stage concept applies equally to post-trial proceedings. The right to counsel extends to the appellate process. Webb v. State, 533 S.W.2d 780, 783 (Tex. Crim. App. 1987). Therefore, it logically follows that the critical-stage prerequisite to the right to counsel also extends to post-trial proceedings.

Not every post-trial event is a critical stage invoking the right to counsel. The sole purpose of an indigency hearing is to determine the purely factual matter of whether a defendant can afford to employ counsel. See Tex. Code Crim. Proc. Ann. art. 1.051(b) (West Supp. 1995). In the present case, the State called one witness to testify concerning a single issue--the reasonable fee for an attorney to handle an appeal. It is apparent that the indigency hearing in this case was not one in which appellant was "confronted with both the intricacies of the law and the advocacy of the public prosecutor." Representation by counsel, although generally a good idea, would not have significantly assisted appellant in answering the court's questions regarding her financial resources. Appellant would have gained nothing by the presence of and lost nothing in the absence of an attorney at her side during the indigency hearing. We thus hold under the present facts that appellant was not entitled to have the trial court appoint counsel for her at the indigency hearing.

We further conclude that appellant was not entitled to any admonishment from the trial court concerning the dangers and disadvantages of self-representation at the indigency hearing. Appellant maintains that Article 1.051(g) of the Texas Code of Criminal Procedure imposes a mandatory duty upon the trial court to advise a defendant who wishes to waive her right to counsel of the dangers and disadvantages of self-representation. Appellant complains that the trial court gave her no warning of the dangers of proceeding without an attorney, nor did it secure a waiver of counsel before the hearing commenced. Appellant further argues that Article 1.051(e) of the Code of Criminal Procedure requires the court to provide ten days' notice to the defendant if it intends to proceed with a matter without securing a written waiver or appointing counsel.

The United States Supreme Court in Faretta v. California, 422 U.S. 806 (1975), held that an accused may waive his right to assistance of counsel and opt to represent himself at trial after being informed of the dangers and disadvantages of self-representation. Id. at 835. However, an admonishment as to the possible consequences of proceeding pro se need only be given where the defendant contests guilt. Johnson v. State, 614 S.W.2d 116, 119 (Tex. Crim. App. 1981) (opinion on rehearing); Cooper v. State, 854 S.W.2d 303, 304 (Tex. App.--Austin 1993, no pet.). In Johnson, the defendant entered a plea of guilty "voluntarily, knowingly, and intelligently and did not contest his guilt." Johnson, 614 S.W.2d at 119. The court acknowledged that the defendant had appeared in court without counsel but explained that the requirement that the trial court admonish the accused of the dangers and disadvantages of self-representation is not automatically triggered whenever an accused appears in court without counsel. Id. The court held that the concept of self-representation established in Faretta applies only to a person contesting, rather than confessing, guilt. Id. For instance, a trial court must warn a defendant of the hazards of proceeding without counsel when representing herself at trial on a plea of not guilty. Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992). However, a trial court need not admonish a defendant before approving a waiver of his right to counsel and accepting a plea of guilty or no contest. Johnson, 614 S.W.2d at 119; Cooper, 854 S.W.2d at 304.

The duty to warn under Article 1.051(g) arises only when a defendant with an existing right to counsel wishes to waive that right. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (West Supp. 1995). In this case, the indigency hearing was not a critical stage in the adversarial judicial proceedings to which the right to representation attached. Because appellant had no existing right to counsel at the indigency hearing, we hold under these facts that she was not entitled to have counsel appointed to represent her and that, because guilt was not in issue, the trial court was not required to admonish her of the dangers of proceeding pro se.

Furthermore, Article 1.051(e) of the Texas Code of Criminal Procedure does not require the court to provide ten days' notice to appellant in this case. The provision mandates:

 

If a nonindigent defendant or an indigent defendant who has refused appointed counsel in order to retain private counsel appears without counsel at a proceeding after having been given a reasonable opportunity to retain counsel, the court, on 10 days' notice to the defendant of a dispositive setting, may proceed with the matter without securing a written waiver or appointing counsel.

 

Tex. Code Crim. Proc. Ann. art 1.051(e) (West Supp. 1995). At the time of the indigency hearing, appellant did not qualify as a "nonindigent defendant" or as an "indigent defendant who has refused appointed counsel." Appellant was before the trial court for a determination of indigency. The statute clearly applies after that determination is made. Accordingly, we overrule appellant's first point of error.

In her second point of error, appellant argues that the trial court erred in overruling appellant's oral motion for new trial, which she made at the indigency hearing, because she received no assistance of counsel at the hearing and was not adequately admonished as to the possible consequences of proceeding pro se. At the conclusion of the indigency hearing and after the trial court had found that appellant was not indigent, the trial court commented that there was no motion for new trial to address unless appellant desired to make an oral motion at that time. The court explained that appellant had to have grounds before she could make a motion for new trial. In response, appellant stated that she would indeed like a new trial. The trial court denied her request.

Appellant argues that the trial court transformed the indigency hearing into an adversarial judicial proceeding by entertaining her motion for new trial and that, in doing so, the court established appellant's right to representation. Specifically, appellant claims that the trial court was required to warn her of the dangers and disadvantages of proceeding pro se in this adversarial judicial proceeding. Because she was not warned, appellant claims that the case should be remanded for a hearing on a motion for new trial.

Appellant's second point of error is unfounded. No motion for new trial was before the court for consideration. In order to be entitled to a hearing at which evidence warranting a new trial can be introduced, appellant must meet certain prerequisites. Burns v. State, 844 S.W.2d 934, 935 (Tex. App.--Amarillo 1992, no pet.) (citing Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985)). A timely filed motion for new trial containing allegations which, if true, would require the trial court to order a new trial is one of those prerequisites. Id.

The right to move for new trial is purely statutory. Port v. State, 798 S.W.2d 839, 846 (Tex. App.--Austin 1990, pet. ref'd) (citing Drew v. State, 743 S.W.2d 207, 222 (Tex. Crim. App. 1987)); see Tex. R. App. P. 31(a)(1) ("A motion for new trial if filed may be filed prior to, or shall be filed within 30 days after, date sentence is imposed or suspended in open court."). The remedy must be pursued in the manner prescribed by the statute. Port, 798 S.W.2d at 847. "A `new trial' is the rehearing of a criminal action after a finding or verdict of guilt has been set aside upon motion of the accused." Tex. R. App. P. 30(a) (emphasis added). In other words, a motion for new trial is the defendant's prerogative. Appellant in this case chose not to exercise that prerogative. She did not file a motion for new trial and in no way attempted to comply with the procedure set forth in Rule 31 of the Texas Rules of Appellate Procedure.

A trial court has no power to grant a new trial on its own motion, and if it does so, such act is void. Perkins v. Court of Appeals, 738 S.W.2d 276, 280 (Tex. Crim. App. 1987). Thus, the trial court's question to appellant during the indigency hearing as to whether she desired to move for a new trial could not and did not place a motion for new trial before the court. See Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985). The indigency hearing was conducted solely to determine whether appellant was indigent for purposes of appeal. Because there was no motion for new trial properly before the court, the indigency hearing was not a critical stage in the adversarial judicial proceedings, and appellant's right to representation was not established. Thus, appellant was not entitled to an admonishment as to the dangers and disadvantages of self-representation. We overrule appellant's second point of error.

In her third point of error, appellant alleges that the trial court erred in allowing the State to continuously adjust the volume of the audio portion of a DWI videotape when the videotape was published to the jury in violation of her rights to a fair trial. Appellant contends in her fourth point of error that the trial court erred in allowing the State to introduce into evidence any portion of the DWI videotape recorded after appellant invoked her right to counsel.

Appellant has failed to file a complete statement of facts. Appellant filed a statement of facts from a January 12, 1993 pretrial hearing and from the indigency hearing that took place on January 5, 1994. Appellant also filed a supplemental statement of facts from a May 16, 1994 hearing. However, appellant's partial statement of facts failed to include the statement of facts, or even a portion thereof, from the actual trial.

Rule 53(d) allows an appellant to prepare a partial statement of facts. Tex. R. App. P. 53(d). The purpose of the rule is to reduce the length of the statement of facts, thereby minimizing the expense and delay often associated with the appellate process. Steger & Bizzell v. Vandewater Constr., Inc., 811 S.W.2d 687, 690 (Tex. App.--Austin 1991, writ denied). The rule requires, however, that appellant "shall include in his request or proposal a statement of the points to be relied on and shall thereafter be limited to such points." Tex. R. App. P. 53(d). If this statement of points is filed, a presumption is established on appeal that nothing omitted from the record is relevant to any of the specified points or to the disposition of the appeal. Id.

However, if appellant fails to comply with the requirements of Rule 53(d), "it will be presumed that the omitted portions are relevant to the disposition of the appeal." Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). An appellate court cannot determine whether a particular trial court ruling constitutes either error or harm in the context of the entire case if appellant has neither complied with Rule 53(d) nor filed a complete statement of facts. Id.

Appellant did not request a complete statement of facts nor did she designate in her partial statement of facts the points to be relied upon on appeal. Because of appellant's noncompliance with Rule 53(d), we must presume that the omitted portion of the statement of facts, specifically the statement of facts from the actual trial, is relevant to the disposition on appeal.

Appellant has the burden to present a record to the appellate court sufficient to show error that demands reversal. Tex. R. App. P. 50(d). By failing to present a statement of facts from the actual trial, appellant has failed to show the trial court's rulings to which she attributes error and, thus, has presented nothing for review. Montalvo v. State, 846 S.W.2d 133, 137 (Tex. App.--Austin 1993, no pet.). We do not know whether a DWI videotape was admitted into evidence. If it was, we do not know whether the State actually edited the audio portion of the videotape as asserted by the appellant, whether objections were made in a timely and specific manner, whether the trial court ruled on each specific objection, or whether appellant properly preserved error for review. Thus, we overrule appellant's third and fourth points of error.

 

The judgment of conviction is affirmed.

 

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: March 8, 1995

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