Opinion issued February 21, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00050-CR
ROBERT AMOS BOGANY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1056858
OPINION ON RECONSIDERATION ON PETITION FOR DISCRETIONARY REVIEW
Pursuant to Rule 50 of the Texas Rules of Appellate Procedure, we have reconsidered our prior opinion upon the appellant's petition for discretionary review. See Tex. R. App. P. 50. Our opinion and judgment of December 20, 2007 are withdrawn, and the following opinion is substituted. See id.
Appellant, Robert Amos Bogany, was charged by indictment with the offense of possession with intent to deliver a controlled substance (dihydrocodeinone, weighing at least 400 grams). (1) The charge was enhanced by two prior felony convictions--burglary of a habitation and aggravated robbery. (2) Appellant pleaded not guilty to the primary offense and pleaded "not true" to the enhancements. A jury found appellant guilty as charged in the primary offense, found the enhancement paragraphs true, and assessed punishment at 99 years' confinement.
In three points of error, appellant contends that the trial court erred by (1) abandoning its role as a neutral arbiter and thereby denying appellant's constitutional right to a fair trial; (2) failing to appoint counsel during the period of time for filing a motion for new trial; and (3) denying requests for additional time in the law library. Appellant has also filed a motion to abate which we ordered taken with the case.
We deny the motion to abate and affirm the conviction.
Background Summary
We summarize only those facts necessary to place appellant's issues in context. On February 7, 2006, after receiving a tip that appellant was conducting a "pill scam" (3) from a church parking lot in southwest Houston, Officer K. Rivera of the Houston Police Department ("HPD") conducted surveillance of the location. Officer Rivera arrived to find several people gathered in the parking lot. He then saw appellant drive in--in a truck that did not have license plates or paper tags--and park. Shortly thereafter, a van arrived and appellant gathered the people into the van. The van left, followed by appellant and by Officer Rivera.
Officer Rivera followed appellant and the van to a medical clinic. From there, appellant's truck and the van separated. Officer Rivera followed the van and another officer followed appellant. The van went to a second medical clinic, where its passengers went inside for 20 to 30 minutes, then got back into the van. The van then reunited with appellant at a grocery store and the vehicles caravanned to a gas station, where five of the van passengers got into appellant's truck.
Rivera followed as appellant drove to a pharmacy and then made a series of stops to let passengers out. Appellant drove erratically--failing to signal, driving through strip centers, and generally driving in circles. (4) Officer Rivera called for an officer in a marked car to come to the area. Officer N.J. Hernandez arrived, witnessed appellant committing numerous traffic violations, and stopped him. Appellant was taken into custody, and his truck was searched and then towed.
Officer Rivera, who was present at the scene of the arrest, testified that appellant admitted that he had been involved with picking up homeless people from downtown and taking them to get medications. Rivera saw pharmacy bags and pill bottles in plain view on the floorboard of appellant's car. A subsequent search of the car revealed 11 bottles of pills. One of the bottles was labeled with appellant's name. The labels on the other 10 bottles indicated that five other people had each been dispensed 120 tablets of hydrocodone and 120 tablets of Soma. The record shows that the aggregate weight of the hydrocodone tablets, including adulterants and dilutants, was 514.6 grams.
On July 12, 2006, after a hearing, the trial court granted appellant's request that he be permitted to proceed pro se. On December 6, 2006, appellant was found guilty as charged and, the same day, was sentenced to 99 years' confinement. On December 27, 2006, appellant filed a pro se motion for new trial and notice of appeal. In his notice of appeal, appellant asserted indigency and requested the appointment of appellate counsel. On January 16, 2007, after a hearing, the trial court found appellant indigent and granted appellant's request for the appointment of appellate counsel. The same day, appellant's appointed counsel, Angela Cameron, was notified of her appointment. On January 23, 2007, Cameron presented appellant's motion for new trial to the trial court, which the trial court denied.
Trial Court as Neutral Arbiter
In his first point of error, appellant contends that he was denied his constitutional right to a fair trial because the trial court abandoned its role as a neutral arbiter. Specifically, appellant contends that the trial court (1)"sua sponte asked questions of a witness in order to supplement the appellate record," (2) "asked the State if it objected to Appellant's questions to witnesses on more than one occasion," (3) "ordered the State to object to Appellant's questioning," (4) "advised the jury of the court's opinion of Appellant's defense and approach to the case . . . and remov[ed] a witness from the witness stand," and (5) "sua sponte quash[ed] Appellant['s] subpeona duces tecum."
A. Applicable Law
Regardless of the evidence against a defendant, he is entitled to a competent and impartial tribunal. U.S. Const. amend. V, VI; Tex. Const. art. I, §§ 10, 19; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Impartiality of the trial court constitutes structural error that is not subject to a harm analysis. Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 1833 (1999); DeLeon v. Aguilar, 127 S.W.3d 1, 7 (Tex. Crim. App. 2004).
Generally, to preserve error for appellate review, appellant must have made a timely objection in the trial court, even if the error is "incurable" or "constitutional." See Tex. R. App. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). It is, however, the province of this court to "take notice of errors affecting substantial rights although they were not presented to the court." See Tex. R. Evid. 103(d); Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001). Under certain circumstances, such as when the comments of a trial judge taint a defendant's presumption of innocence in front of the jury, error is fundamental and no objection is required. Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000).
B. Analysis
Here, appellant concedes that he failed to object in the trial court to the conduct of which he now complains. Appellant contends, however, that the trial court's conduct rises to fundamental error to which no objection was required, relying on Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000).
In Blue, the trial court apologized to the venire for its long wait, stated that the delay was because of the defendant's indecisiveness on whether to accept a plea bargain, and indicated its preference that the defendant plead guilty. Id. at 130. The Court of Criminal Appeals held that the trial court's comments tainted the defendant's presumption of innocence and thus constituted fundamental error that required no objection. Id. at 132. In the instant case, we have reviewed the transcript of the circumstances surrounding appellant's complaints and conclude that they do not rise to that level. See Jasper, 61 S.W.3d at 421.
1. Sua sponte questioning witness to supplement the record
First, appellant complains that the trial court improperly "sua sponte asked questions of a witness in order to supplement the appellate record." During appellant's direct examination of Daniel Arceneaux, who is a Harris County Sheriff's Department deputy and who serves as bailiff and process server for the trial court, appellant questioned Deputy Arceneaux concerning the service of some of appellant's subpoenas. Deputy Arceneaux explained that he had attempted to serve each of the subpeonas and that, in one instance, the individual was not at the address appellant gave and the person's whereabouts were unknown to the apartment manager. Deputy Arceneaux pointed out that, in another instance, appellant had improperly sought to subpoena a grand jury district attorney.
The trial court then instructed appellant, outside the presence of the jury, as follows:
The Court: If you want me to hear something about witnesses you want, you need to bring this up out of the presence of the jury. This man's only going to subpoena people. You said you had your witnesses here. They are outside. I am not going to sit and let you go through this. If you have a couple more questions, ask him and get him off the stand. Okay?
Appellant continued to question Deputy Arceneaux concerning whether he talked to a particular witness and what that person said, to which the trial court sustained the State's objection. The trial court then admonished appellant that if he was not going to properly ask Deputy Arceneaux a question, then the trial court would have the deputy "sit down and go back to his duties as bailiff of this court."
Appellant complains of the following emphasized colloquy that occurred immediately thereafter, when appellant resumed his questioning of Deputy Arceneaux:
[Appellant]: So I am saying you didn't get none [sic] of my witnesses? You didn't get a chance to subpoena none of my witnesses?
[State]: Objection, Your Honor. Asked and answered.
The Court: Sustained.
[Appellant]: No further questions.
The Court: Any further questions from the State?
[State]: None from the State, Your Honor.
The Court: Okay. Let me ask this. I think this needs to be clarified for the record.
[Appellant]: No.
[State]: Objection to the sidebar comments, Your Honor.
The Court: I just want to make sure that this defendant--anyone who was asked to be called as his witnesses, did you comply with any subpoena he issued?
[Bailiff]: Yes.
(Emphasis added.)
Appellant contends that "the burden of making a record to reveal or dispel error rests with the parties" and that "once the court elicited facts from the process server not asked by the State [sic], he abandoned his role of a neutral arbitrator and stepped into the shoes of co-counsel for the State."
A trial court is permitted to "interject in order to correct a misstatement or misrepresentation of previously admitted testimony." Jasper, 61 S.W.3d at 421; see Watson v. State, 176 S.W.3d 413, 418 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (recognizing that trial court is permitted to question witness to seek information to clarify point); Williams v. State, 89 S.W.3d 325, 328 (Tex. App.--Texarkana 2002, pet. ref'd) (same). Here, appellant transformed Deputy Arceneaux's prior testimony that two of appellant's witnesses had not been served into Deputy Arceneaux having served "none [sic] of" appellant's witnesses. The trial court expressly sought to clarify appellant's misstatement of the testimony. This does not translate into an indication of the judge's views about appellant's guilt or innocence. See Jasper, 61 S.W.3d at 421.
2. Asking the State for objections to appellant's questioning
Next, appellant complains that, on three occasions, the trial court improperly asked the State if it had an objection to appellant's questioning. First, appellant complains of the following emphasized dialogue that took place during appellant's direct examination of HPD Officer N.J. Hernandez:
[Appellant]: As you know, maybe you don't know--I am charged in an indictment with possession.
The Court: Do you have an objection as to relevance?
[State]: Objection as to relevance.
The Court: Sustained. This officer knows what you are charged with. If you have a question, ask him.
(Emphasis added.)
Second, appellant complains of the emphasized portion of the following that took place during appellant's direct examination of HPD Officer Escobar, who was on the scene of appellant's arrest, as to which street the wrecker driver took when he towed appellant's car from the scene:
[Appellant]: Did you bring your offense report on that?
[Escobar]: It is not my offense report, but there is an offense report that was written.
[Appellant]: May I see it under [the] Gaskin rule?
The Court: Yes. Do you have a copy of the officer's report? And did you make your own report? Is that your report?
[Escobar]: No, this is not my report.
The Court: He did not make a report. You didn't make a report?
[Escobar]: No, Your Honor. I had nothing to do with this.
The Court: There is no report. This officer didn't make a report. Okay. Do you have any further questions?
[Appellant]: Yes, sir, I sure do. Officer, have you had a chance to go over the offense report today?
[Escobar]: Yes.
[Appellant]: Your Honor, I would like to see it under the Gaskin rule.
The Court: Do you have an objection? He did not prepare a report. Now, if he's relying upon anything here today that he used another report for, I will let you look at that report. But he would be relying on something else some other officer said.
[State]: The State has an objection.
The Court: Give [appellant] whatever reports you have got if that will aid him in this examination. Let him look at it.
(Emphasis added.) A report was then handed to appellant and appellant questioned Escobar about the report.
Third, appellant complains of the emphasized portion of the following that also took place during appellant's direct examination of Escobar:
[Appellant]: Were you part of the narcotic investigation, Officer?
[Escobar]: No, I was not.
. . . .
[Appellant]: If I told you, Officer, that a fellow officer said that--
[State]: Hearsay, Your Honor.
The Court: This is a violation of the Rule and you should know that. I have instructed you. I sustained the objection.
[Appellant]: Okay. Officer Hernandez has testified that I was arrested on Kentucky Street.
The Court: Is there an objection?
[State]: There is an objection.
[Appellant]: Excuse me?
The Court: I sustain the objection. Come up, [appellant]. Let me explain it to you again.
[Appellant]: You asked is there an objection?
The Court: Come on up.
(At the Bench)
The Court: You remember you wanted to invoke the Rule. That means these officers, you can't tell him what another officer testified to. That's what the Rule is all about. So don't ask him. Yes, that's it. Sit down.
(Emphasis added.) Thereafter, appellant resumed questioning of Officer Escobar.
Appellant contends that, in each of these three instances, the trial court asked the State for an objection, the State objected, and the trial court sustained the objection. We first note that in the second instance of which appellant complains the trial court did not sustain the State's objection; rather, the trial court never ruled on the State's objection. Moreover, the trial court instructed that appellant be given any report as requested and appellant was given a report from which he proceeded to question Escobar.
As to the first and third instances, the trial court may properly intervene to maintain control of the courtroom, to expedite the trial, and to prevent what it considers to be a waste of time. Tex. R. Evid. 611(a) (providing that trial court shall exercise reasonable control over mode and order of interrogating witnesses (1) to make interrogation and presentation effective for ascertainment of truth, (2) to avoid needless consumption of time, and (3) to protect witnesses from harassment or undue embarrassment); Silva v. State, 635 S.W.2d 775, 778 (Tex. App.--Corpus Christi 1982, pet. ref'd). In addition, the trial court is in charge of enforcing the rules. A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. See Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988).
We cannot conclude that the complained-of statements translate into an indication of the judge's views about appellant's guilt or innocence, or that they rise to a violation of appellant's fundamental rights. See Jasper, 61 S.W.3d at 421.
3. Ordering the State to object to Appellant's questioning
Next, appellant contends that the trial court improperly instructed the State to object to appellant's questioning. Specifically, appellant complains of the following colloquy that took place outside the presence of the jury:
The Court: You don't get any special privileges because you are representing yourself. I am tired of you sitting here, your sidebar remarks. You repeat every question you have and every answer. You don't follow the rules . . . I am going to read you 401. This is the Rules of Evidence, relevancy and its limits. [Rules 401 and 402 read.] Now let me say this: You are calling officers up here on matters that have already been testified to. They are irrelevant. They are cumulative. And you are requiring the State to sit here and object to every question you are asking. (5) And some you are not objecting to.
[State]: Yes, sir, Your Honor.
The Court: I expect you, if they are irrelevant--I don't want to interfere in front of the jury of his cross-examination. It's your job duty to stand up here and object.
[State]: Yes, sir.
. . . .
The Court: If you want to go through this before this jury, I am going to let you call all your witnesses. I am trying to be helpful to you. If you have got something relevant from these witnesses that [sic] know something about this incident and the case you are charged with--
. . . .
The Court: But I don't want to hear about where they took--the wrecker driver came from and where he took the truck and if he's on one street or the other, that's not relevant to the charges you are charged with.
[Appellant]: It is relevant.
The Court: With that, sit down. And I am going to call the jury back in and we are going to finish. And if it is irrelevant, I expect you to follow the rules and make your proper objections.
[State]: Yes, Your Honor.
(Emphasis added.)
As discussed, the trial court may intervene to maintain control of the courtroom, to expedite the trial, and to prevent what it considers to be a waste of time. Tex. R. Evid. 611(a); Silva, 635 S.W.2d at 778. We cannot conclude that the trial court violated appellant's fundamental rights by maintaining control over the trial court and expediting trial. See Jasper, 61 S.W.3d at 421 (holding that trial court has broad discretion to expedite trial).
4. Advising the jury of the court's opinion of appellant's defense
As noted above, in a conference at the bench, the trial court instructed appellant that his questions concerning where his truck was taken and where the wrecker driver went were not relevant to the charges at issue. Once the jury was called back in, appellant called Alfred M. Canales, Jr., the wrecker driver, to the witness stand and began to question him about where appellant's truck was taken, to which the trial court responded as follows:
The Court: It's not relevant where the truck went. That's why I have sustained--you are requiring her to make objections to irrelevant questions. If you have relevant questions--
[Appellant]: I need to know where the truck went. These jurors need to know.
The Court: You may need to know, but the jury doesn't need to know. [Appellant]: They do need to know.
[State]: Objection, Your Honor.
The Court: Sustained.
(Emphasis added.)
Appellant then continued to ask Canales what he did with the truck. The trial court admonished appellant again to move on. Again, appellant asked Canales if the truck was towed to Ford Motor Company. With that, the trial court excused Canales from the witness stand.
Appellant contends that, through this exchange, which took place before the jury, the trial court improperly indicated its disbelief of appellant's position and diminished his credibility. Again, the trial court is charged with the duty "to exercise reasonable control over the mode and order of interrogating witnesses . . . so as to (1) make interrogation and presentation effective for ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Tex. R. Evid. 611(a). Appellant has not demonstrated that the trial court's insistence that appellant ask relevant questions of Canales translates into an indication of the judge's views about appellant's guilt or innocence, or a violation of appellant's fundamental rights. See Jasper, 61 S.W.3d at 421; Watson, 176 S.W.3d at 418.
5. Sua sponte quashing appellant's subpoena duces tecum
Appellant contends that he filed "several" subpoenas duces tecum prior to trial. One of the subpoenas was directed at a records custodian of HPD, and one was directed to Officer Hernandez, requesting that he bring the offense report and the patrol car video of the traffic stop and arrest. Appellant contends that HPD filed a motion to quash only the subpoena directed to the records custodian and that the trial court's order does not mention the subpoena regarding Officer Hernandez.
At a hearing on appellant's pre-trial motions, the trial court considered and ruled on the motion to quash as follows:
The Court: You had a subpoena duces tecum to have [HPD] to bring certain evidence before you. And I've read your motion. And, first of all, a lot of this is not discoverable as you probably understand--you know, police reports and work product and all that sort of thing is not discoverable.
Also let me state, the law basically says that decisions involving pretrial discovery of evidence that is not exculpatory, mitigating, or privileged, or [understood: are] within the discretion of the trial court. And the rules on--as described for discovery would apply to what you're asking for. And basically, many of these things I think she has in her file, which a lot of it is work product. And under the law you're not entitled to her work product.
Specifically, I'm going to grant this motion to quash your request for the evidence that you have asked for in your subpoena duces tecum. And--so I'll deny your motion.
The trial court's written order states that "[t]he subpoena duces tecum directed to the Custodian of Records for [HPD] is the instant case is in all things quashed."
At trial, appellant asked Officer Hernandez if he brought the videotape and, in a conference at the bench, the trial court explained to appellant that the matter had been considered during the pretrial hearing and that appellant's subpoena duces tecum regarding the video had been quashed.
On appeal, appellant argues the admissibility of the video tape and concludes, without reference to authority, that the quashing of a subpoena duces tecum rises to structural error that did not require an objection. Appellant has not shown that the trial court's conduct was indicative of bias or prejudice, or that it otherwise tainted appellant's presumption of innocence.
In sum, we cannot conclude that the complained-of comments and conduct in this case prejudiced the jury to the degree addressed in Blue. See 41 S.W.3d at 132. We conclude that appellant has not demonstrated that fundamental error doctrine applies in this case. Thus, appellant was required to object to preserve error. See Tex. R. App. P. 33.1; Cockrell, 933 S.W.2d at 89. Because error was not preserved, nothing is presented for review.
Accordingly, we overrule appellant's first point of error.
Assistance of Counsel During Period for Filing Motion for New Trial
In his second point of error, appellant contends that the trial court erred by failing to appoint counsel during the time for filing a motion for new trial.
A motion for new trial must be filed no later than 30 days after the trial court "imposes or suspends sentence in open court." Tex. R. App. P. 21.4(a); see Tex. R. Civ. P. 329b. This 30-day period in which to file a motion for new trial is a critical stage of a criminal proceeding and a defendant has a constitutional right to counsel during that period. Cooks v. State, 2007 WL 4146374, at *3 (Tex. Crim. App. Nov. 21, 2007). To prevail on a claim of deprivation of counsel, appellant must affirmatively show that he was not represented by counsel during that period. Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). There is a rebuttable presumption that a defendant's trial counsel continued to adequately represent the defendant during this critical stage. Cooks, 2007 WL 4146374, at *4. If a defendant rebuts this presumption with evidence that he was deprived of adequate counsel during this stage, this deprivation of counsel is subject to a harm analysis. Id.
Here, the record shows that, after a Faretta hearing, (6) the trial court granted appellant's request to represent himself throughout trial. Appellant's sentence was imposed on December 6, 2006. Appellant then had 30 days, or until January 5, 2007, to file a motion for new trial. See Tex. R. App. P. 21.4; Tex. R. Civ. P. 329b. On December 27, 2006, appellant, proceeding pro se, filed a motion for new trial. On the same date, appellant also filed a pro se notice of appeal in which he asserted indigency, requested that appellate counsel be appointed, and requested a hearing. On January 16, 2007, after a hearing, (7) the trial court found that appellant is indigent, granted appellant's motion for the appointment of counsel, and notified counsel, Cameron, of her appointment. On January 23, 2007, Cameron presented appellant's motion for new trial to the trial court, which the trial court denied.
First, appellant contends that he was denied the assistance of counsel during the critical time frame for filing a motion for new trial. Appellant has filed a motion to abate this appeal, attesting that counsel was not notified of her appointment to represent appellant until January 16, 2007, which was 11 days after the deadline for filing a motion for new trial. (8) Appellant contends that, because he proceeded pro se, the presumption that he was adequately represented by trial counsel during this critical stage does not apply or is automatically rebutted. We disagree.
Because appellant chose to represent himself throughout trial and chose if and when to withdraw, this is not one of those cases in which an abandonment by trial counsel has arisen. The presumption of representation was rebutted by appellant's withdrawal of his waiver of counsel, on December 27, 2006. When appellant requested the appointment of counsel, he withdrew his pro se representation. See Tex. Code Crim. Proc. Ann. art. 1.051(h) (Vernon Supp. 2007) (providing that defendant may withdraw waiver of right to counsel at any time but he is not entitled to repeat proceeding previously held or waived solely on ground of subsequent appointment); Walker v. State, 962 S.W.2d 124, 127 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). The withdrawal of representation prior to the end of the period for filing a motion for new trial can render a defendant unrepresented during the critical stage. See Cooks, 2007 WL 4146374, at *3.
Even if we conclude, however, that by withdrawing his waiver of counsel nine days prior to the expiration of the period for filing a motion for new trial and thereby rendering himself without counsel for that period, appellant has not shown that he was harmed. See e.g., Cooks, 2007 WL 4146374, at *4 (holding that, if defendant rebuts presumption with evidence that he was deprived of adequate counsel during this stage, such deprivation is subject to harm analysis).
This is not one of those cases in which the withdrawal of trial counsel rendered the defendant wholly unable to file a motion for new trial within the 30-day period. Cf. id. at *2 (explaining that defendant whose trial counsel withdraws during period for filing motion for new trial is not expected to then file pro se original motion for new trial if new counsel is not appointed in time). Here, appellant, who had been pro se from the beginning of trial, timely filed a motion for new trial--which he also chose to file pro se.
Counsel adopted appellant's motion for new trial and presented it to the trial court. Appellant contends that, had his appellate counsel been appointed before the period for filing a motion for new trial expired, his counsel could have filed an amended motion. Specifically, appellant contends that he "lost the opportunity for counsel to file an amended sworn motion clarifying the points in his pro se motion in addition to including a ground alleging jury charge error in the punishment phase" and that "appellant was denied the ability to add a ground in the motion asking the trial judge to grant a new trial in the interest of justice based on issues Appellant failed to preserve. . . ."
A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. See Johnson, 760 S.W.2d at 279. A defendant may not choose to proceed pro se and then argue on appeal that his own representation was ineffective. Indeed, appellant clarifies in his brief that he is not seeking a Jack I abatement hearing. See Jack v. State, 42 S.W.3d 291, 294 (Tex. App.--Houston [1st Dist.] 2001, order) (addressing abatement of appeal for hearing to determine whether appellant received effective assistance of counsel during the 30-day period for filing a motion for new trial). Appellant may not then be heard to complain on appeal that abatement is warranted because his new appellate counsel, in essence, could have written a more effective motion.
Even if we conclude that, as in Cooks, when appellant withdrew, he was deprived of "the benefit" of Cameron's representation during the nine days that remained of the period in Rule 21.4 in which to amend the motion for new trial, we conclude that appellant has not demonstrated harm. See Cooks, 2007 WL 4146374, at *2, 4.
Appellant's contention that he "lost the opportunity for counsel to file an amended sworn motion clarifying the points in his pro se motion" is, as stated above, nothing more than a complaint that his counsel could have more effectively presented appellant's motion.
In addition, appellant is not harmed beyond a reasonable doubt by being unable to raise his alleged jury charge error in the punishment phase in his motion for new trial because it is not a "facially plausible claim." See id. at *4. Appellant was indicted for possession with intent to deliver at least 400 grams of dihydrocodeinone. The evidence shows that appellant possessed 514.6 grams of dihydrocodeinone. The jury was charged that the maximum sentence for the primary offense was 99 years. Appellant contends that he was convicted of a penalty group three substance, but that the jury charge gave the range of punishment for a penalty group one substance. Even if appellant's contention were true, the maximum penalty for possession of a group one or a group three substance weighing 400 grams or more by aggregate weight, including adulterants and dilutants, is 99 years' confinement. See Tex. Health & Safety Code Ann. §§ 481.115(f), 481.117(e). Appellant received 99 years' confinement and did not receive a fine.
Finally, it is not apparent from the record that appellant has been harmed beyond a reasonable doubt by generally being unable to "add a ground in the motion asking the trial judge to grant a new trial in the interest of justice based on issues Appellant failed to preserve." A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law. State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007). Because appellant does not explain or support these contentions, we consider them inadequately briefed and decline to address them. See Tex. R. App. P. 38.1(h).
Accordingly, appellant's second point of error is overruled.
Library Time
In his third point of error, appellant contends that the trial court erred by denying his "repeated requests for additional time in the law library." Appellant does not contend that he was denied all access to the law library; rather, he complains that the time he received was inadequate. The record shows that appellant filed a pre-trial motion requesting additional library time and that the matter was taken up twice in pre-trial hearings. The trial court explained that it would not grant additional time in the law library because the matter was within the sound discretion of prison authorities.
In Kane v. Garcia Espitia, the United States Supreme Court observed that "it is clear that Faretta," which establishes a Sixth Amendment right to self-representation, "says nothing about any specific legal aid that the State owes a pro se criminal defendant." 546 U.S. 9, 10, 126 S. Ct. 407, 408 (2005) (construing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975)). In Bounds v. Smith, the Court held that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. 430 U.S. 817, 828, 97 S. Ct. 1491, 1498 (1977), overruled on other grounds, Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996) (considering fundamental constitutional right of access to courts in context of 42 U.S.C.A. § 1983 claim).
In Lewis v. Casey, the United States Supreme Court explained that Bounds "did not create an abstract, freestanding right to a law library" and that Bounds "does not guarantee inmates the wherewithal to transform themselves into litigating engines." 518 U.S. 343, 351, 355, 116 S. Ct. 2174, 2180, 2182 (1996). Further, in Lewis, the Court held that an inmate who claims to have suffered a deprivation of access to library resources must show that he has suffered an actual injury. Id. at 351, 116 S. Ct. at 2180.
The Fifth Circuit has held that a defendant who rejects the assistance of court-appointed counsel has no constitutional right to access a law library in preparing a pro se defense of his criminal trial. Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996).
In Dunn v. State, the appellant, who had proceeded pro se at trial, complained that administrative regulations at the jail had limited his library access to one hour per week, which was inadequate for trial preparation. 819 S.W.2d 510, 525 (Tex. Crim. App. 1991). At a pre-trial hearing, appellant presented the testimony of the jail library clerk, who testified that, according to jail records, appellant had been offered access to the library 71 times, had refused access 47 times, and had utilized his access only 24 times. Id. The Court of Criminal Appeals concluded that appellant had not shown that he had been denied access and held that the trial court did not abuse its discretion by denying appellant relief at the pre-trial hearing. Id. at 526.
Here, the trial court afforded the appellant a pre-trial hearing on this matter. At the hearing, appellant failed to present any evidence of the amount of time he was allotted and what time he actually utilized. Further, appellant has not demonstrated an actual injury attributable to a lack of library time. Appellant contends only that he "did not have adequate time to become vested in the rules regarding preservation of error" and did not learn about offers of proof or verification of motions. Appellant does not state how much more time he needed, requested, or was refused.
Accordingly, we overrule appellant's third point of error.
Conclusion
We deny the motion to abate, and we affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).
1. See Tex. Health & Safety Code Ann. §§ 481.104, 481.117 (a), (e) (Vernon 2003).
2. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003) (burglary of habitation); Id. § 29.03 (aggravated robbery).
3. Officer Rivera explained that a "pill scam" involves an organized team of individuals who gather homeless and unemployed people and use them to obtain prescription medications that are then sold on the street.
4. Rivera testified that, based on his training, it was his opinion that appellant was performing what is known as a "heat run" to determine if he was being followed.
5. We note that, over the course of the day-and-a-half guilt and innocence phase of trial, there were in excess of 200 objections by the State. The majority of those objections were on the stated ground of relevance and were sustained. The trial court admonished appellant repeatedly that the progress of the trial was being stymied by his improper questioning.
6. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975).
7. The clerk's record contains two orders in which the trial court found appellant indigent and appointed appellate counsel. Both orders reflect a handwritten date of December 6, 2006 as the date of the hearing and the date signed. However, in one of the orders, both handwritten dates are crossed through and initialed, and stamped in both places with "January 16, 2007." Appellant's notice of appeal containing his request for a hearing on his indigent status and appointment of appellate counsel was not filed until December 27, 2006.
8. We have ordered that this motion be taken with the case.