Opinion issued June 17, 2010.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00742-CR
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Lee Alexander Magness, Appellant
V.
State of Texas, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1145123
MEMORANDUM OPINION
A jury found Lee Alexander Magness guilty of misapplication of fiduciary property in an amount less than $200,000 but more than $100,000. The trial court sentenced him to ten years in prison and ordered him to pay $199,999 in restitution. On appeal, Magness contends that (1) the trial court deprived him of his constitutional right to counsel; (2) the State committed fundamental error during closing argument by arguing law contrary to the jury charge; (3) the trial court erred in setting the amount of restitution without holding a hearing to determine the amount of loss to the complainant; and (4) the trial court erred in denying Magness’s request for shock probation. Magness also complains that the appellate record is incomplete, but the trial court supplemented the record with the missing material before this case was submitted, thereby rendering the issue moot. We conclude that (1) the trial court acted within its discretion in declining Magness’s request to withdraw his earlier refusal of court-appointed counsel, (2) Magness waived his complaint concerning the State’s closing argument, (3) the evidence supports the restitution award, and (4) the dismissal of his motion for shock probation did not violate his due process rights. We therefore affirm.
Background
The transaction
Gary Meier, a partner at a consulting and institutional investment company, became acquainted with Magness, an attorney, during a business deal. When Meier became interested in helping his father make an investment in 2004, he consulted with Magness about various investment opportunities in Panama. Meier traveled with Magness to Panama where they met with a Panamanian attorney, Jose Broce. On Broce and Magness’s advice, Meier decided to invest $700,000 in a Panama Communications Consultants. To accomplish the transaction, Meier transferred $4,400 to Magness’s client trust account in August 2004 and the remaining $695,600 in September 2004. Once the funds arrived in Magness’s trust account, the transaction required him to transfer all of the funds to Broce in Panama for the $700,000 stock purchase. In February or March of 2005, however, Meier learned Broce had received only a portion—approximately $404,000—of the funds.
Meier met with Magness, who told him that the discrepancy resulted from a problem with the wire transfer and that he would resolve the problem with Broce. After that meeting, though, Magness failed to provide Meier with information concerning the status of the transaction and was unresponsive to Meier’s inquiries for several weeks. When Magness eventually met with Meier in May 2005, he gave Meier documentation showing transfer of only $404,295 to Panama. Magness told Meier that he had deposited the remainder of the funds in an offshore account, but he refused to provide Meier with any documentation of the deposit. Meier requested that Magness return $40,000 of the funds so that Meier could pay a debt. Magness indicated that he would need a few days to obtain the money from the offshore accounts. The next day, Magness gave Meier a $40,000 cashier’s check. Meier emailed Magness a demand that he return $251,215—the remainder of the missing funds. By the time Meier demanded the money, Magness had only $10,308.83 in the IOLTA account into which Meier initially had transferred the funds. Magness never returned the funds to Meier or provided Meier with any more information concerning their location.
At trial, Magness showed that in November 2004, he loaned $75,000 to another client to close a real estate transaction in Waxahachie, Texas. The loan terms required repayment at a daily interest rate of prime plus two percent. Despite using Meier’s funds for the loan, Magness never informed the client that the funds belonged to Meier, and Meier’s name did not appear in the real estate transaction documents. After the deal, the client’s mother transferred $92,000 directly to Magness to cover the loan, and Magness received a $238,000 finder’s fee. Magness admitted that he never paid any of that money to Meier. Magness also admitted that (1) neither Meier nor his father had the $255,000 returned to him, (2) $255,000 of Meier’s money was missing, and (3) Meier would have no way to locate the missing funds if Magness became incapacitated.
Proceedings in the trial court
When Magness was charged, he initially retained an attorney to represent him, but that attorney moved to withdraw as counsel. Magness initially indicated that he would try to hire another attorney. After a few months passed and no attorney had appeared for Magness, the trial court held an indigency hearing in August 2006, found Magness indigent, and appointed an attorney to represent him. During this period, Magness agreed to several trial resettings, the last of which was for May 9, 2008.
In late March 2008, Magness expressed dissatisfaction with appointed counsel’s preparation for trial. Seeking clarification, the trial court asked Magness if he sought removal of his appointed counsel or intended to represent himself at trial. Magness explained that he did not. A few weeks later, Magness and his appointed counsel met with the trial court to aid in securing the attendance of an expert witness and several witnesses who reside in Panama. The trial court approved travel funds.
Just before voir dire, appointed counsel announced ready conditioned on the appearance of the out-of-country witnesses. Later that day, after appointed counsel spoke with the witness’s liaison in Panama, he informed the trial court that the witnesses would not be available to testify for at least three weeks. A few days later, after the jury was impaneled, appointed counsel moved for a continuance based on witness unavailability. He requested that the case be recessed until June 2 and assured the trial court that it would not take more than three days to present the witnesses.
After questioning the jury, the trial court learned that certain jurors would face scheduling conflicts if the trial were postponed. As a result, the trial court requested a second jury panel to select alternate jurors and allowed the State and appointed counsel to question them during voir dire. Shortly after the trial court ruled on the parties’ motions in limine and addressed other pretrial requests, Magness waived his right to counsel and asked to proceed pro se with appointed counsel continuing as standby counsel. After questioning Magness to determine that his waiver was knowing and voluntary, the trial court granted the request.
After the State presented its case in chief, Magness orally moved for mistrial, and, after alluding to his view that appointed counsel lacked competence and was not adequately prepared for trial, declared that, “although the F[a]retta warnings were given, it’s become apparent to this Court, the DA’s, myself, and the jury that I’m not proficient in the procedures required to prosecute [sic] this complex criminal case.” Magness informed the court that a friend was willing to loan him money to hire counsel and that he wished to withdraw his waiver of the right to counsel.
The trial court stated that it was willing to return standby counsel’s status to appointed counsel or allow Magness to hire a new attorney if the attorney was prepared to immediately assume Magness’s defense. But, the trial court explained, “I’m not going to declare a mistrial so you can hire an attorney and we can start it another day.” Magness admitted that he had not yet hired counsel, and alternatively requested a recess to allow him time to confer longer with the attorneys he previously contacted. The trial court denied the request, noting that “[t]his case has been going on for two weeks. We’re going to proceed with the case. I’m not going to recess the case for that matter.” After further discussion, Magness again asked the court for a continuance, this time to allow him to prepare his case, which the trial court also denied. At the close of the discussion, the trial court reiterated to Magness that it continued to be willing to reappoint standby counsel as defense counsel, but that it understood Magness did not want to exercise that option. Magness confirmed that the court correctly understood his position.
The jury found Magness guilty of misapplying fiduciary property in an amount less than two hundred thousand dollars, but more than one hundred thousand dollars. In August, the trial court sentenced Magness to ten years in prison and ordered restitution of $199,999 as a condition of parole. Some unspecified time after sentencing, Magness moved for shock probation. A written motion for shock probation does not appear in the record, but a supplemental reporter’s record shows that the trial court heard the motion on February 20, 2009. In the interim between sentencing and the hearing, the sentencing judge had left office. The newly seated judge denied the motion because, as she was not the sentencing judge, the statute did not authorize her to grant shock probation. In addition, the sentencing judge was not statutorily eligible to sit as a visiting judge.
Discussion
I. Right to counsel
Magness first contends that the trial court’s denial of his request to withdraw his waiver of the right to counsel violated his constitutional rights. The Sixth Amendment of the federal constitution guarantees both the right to counsel and the corresponding right to self-representation. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); Hathorn v. State, 848 S.W.2d 101, 122–23 (Tex. Crim. App. 1992); see also Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002) (noting that Faretta rights are triggered when accused contests guilt); Tex.Code Crim. Proc. Ann. art. 1.05 (Vernon 2005) (recognizing right of accused to be heard by himself, through counsel, or both); Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
In Faretta, the Supreme Court recognized that “[w]hen an accused manages his own defense, he relinquishes . . . many of the traditional benefits associated with the right to counsel” and concluded that in order to represent himself, an “accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” 422 U.S. at 818–20, 95 S. Ct. at 2533. Such a decision, to be constitutionally effective, must be made (1) competently, (2) knowingly and intelligently, and (3) voluntarily. Godinez v. Moran, 509 U.S. 389, 400–401, 113 S. Ct. 2680, 2687 (1993); Faretta, 422 U.S. at 834–36, 95 S. Ct. at 2541.
Magness concedes that his waiver of the right to counsel met all constitutional and statutory requirements. He contends, however, that after he withdrew that waiver, the trial court “had an obligation to stop the trial to allow [him] to retain counsel or to order standby counsel to take over his defense.”
Article 1.051(h) of the Texas Code of Criminal Procedure addresses withdrawal of a waiver of the right to counsel. Tex. Code Crim. Proc. Ann. art. 1.051(h) (Vernon Supp. 2007). It provides:
A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.
Id. A defendant’s right to withdraw his waiver of the right to counsel has its limits. A trial court may deny a request to withdraw the waiver when doing so would obstruct orderly procedure or interfere with the fair administration of justice. See Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988); Medley v. State, 47 S.W.3d 17, 23 (Tex. App.—Amarillo 2000, pet. ref’d) (“Trial courts have the duty, and discretion, to maintain the orderly flow and administration of judicial proceedings, including the exercise of a defendant’s right to counsel.”) (citing Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46). A defendant “does not have the right to repeatedly alternate his position on the right to counsel and thereby delay trial.” Medley, 47 S.W.3d at 23; see Johnson v. State, 257 S.W.3d 778, 781 (Tex. App.—Texarkana 2008, pet. ref’d) (“Constitutional protections connected with the right to counsel may not be so manipulated as to delay or obstruct the trial process.”) (citing Dunn v. State, 819 S.W.2d 510, 518–19 (Tex. Crim. App. 1991)); Trevino v. State, 555 S.W.2d 750, 752 n.1 (Tex. Crim. App. 1977). A “decision of the trial court as to the effect the reclamation of the right by the defendant would have on the orderly administration of justice will not be disturbed on appeal absent an abuse of discretion.” Medley, 47 S.W.3d at 24.
Although Magness denies any attempt to manipulate or delay the proceedings in attempting to withdraw his waiver of the right to counsel, the record contains adequate grounds to support the trial court’s decision. Magness agreed to several continuances of the trial setting, then moved to dismiss the case for lack of a speedy trial. Magness did not waive his right to counsel until after the jury was seated, then sought to withdraw that waiver the day before the State was to rest its case, even though he had not yet retained new counsel. Moreover, the trial court stated that it would allow Magness to withdraw his right if his newly hired counsel was ready to assume Magness’s defense without creating any additional delay in the proceedings. Magness also persisted in refusing the trial court’s repeated offer to reinstate standby counsel as appointed counsel. Under these circumstances, granting Magness’s request, at a minimum, would have created yet another delay—this time, mid-trial—and nothing about the proceeding, aside from Magness’s expression of interest in having counsel, had changed since Magness knowingly waived his right to counsel. The trial court had no duty to correct Magness’s arguably tactical error in waiving his right to appointed counsel.
Citing Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379 (2008), Magness further contends that because he recognized his lack of competence in the subject matter of the criminal proceedings against him, the trial court erred in denying his request for appointment of counsel. Edwards does not support this contention. In Edwards, the Supreme Court held that “[t]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” 554 U.S. 164, 128 S. Ct. at 2388.
Magness does not suggest that he suffers from severe mental illness; rather, he contends that his skills and experience as a lawyer do not include defense of criminal charges. The standard of professional competence required of a lawyer in representing a client is wholly unrelated to the mental competence issues addressed in Edwards. In holding the attorney to a professional standard of competence, the Texas Disciplinary Rules of Professional Conduct put the onus not on the court, but on the lawyer himself, to recognize the matters which lie beyond his competence. See Tex. Discipinary R. Prof’l Conduct 1.01(a), reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G app. A (Vernon 2005) (providing, with two specified exceptions, neither of which apply here, “[a] lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence”). Edwards has no bearing on this case. Consequently, we hold that the trial court did not abuse its discretion in denying Magness’s request to withdraw his waiver of the right to counsel.
II. Closing argument
Magness next contends that the State, in closing argument, misstated the law applicable to the misapplication of fiduciary property charge, an error that, he claims, amounts to fundamental error that requires reversal even though he failed to timely object to the misstatement. Before deciding Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), Court of Criminal Appeals recognized an exception to the general rule that failure to timely object to improper jury argument waives the right to complain about that issue, and allowed a defendant to raise the issue for the first time on appeal if the argument was so prejudicial that an instruction to disregard could not have cured the harm. See Briddle v. State, 742 S.W.2d 379, 389 (Tex. Crim. App. 1987). In Cockrell, however, the Court recognized that, after the enactment of Texas Rule of Appellate Procedure 52(a) and its decision in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), it could no longer recognize that exception. See 933 S.W.2d at 89, quoted in Valencia v. State, 946 S.W.2d 81, 82–83 (Tex. Crim. App. 1997). A defendant’s failure to timely object to a jury argument and pursue a ruling on his objection—even if that argument cannot be cured by an instruction to disregard—waives his right to complain about the argument on appeal. Valencia, 946 S.W.2d at 82–83; Cockrell, 933 S.W.2d at 89; see Tex. R. App. P. 33.1(a); see also Curiel v. State, 243 S.W.3d 10, 19 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that appellant waived complaint that prosecutor impermissibly commented on appellant’s post-arrest silence in closing argument because objection at trial did not comport with complaint on appeal). Thus, if a defendant fails to timely and properly object to a jury argument, the waiver rule applies even when the jury argument might be incurably harmful. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); McDonald v. State, 186 S.W.3d 86, 9091 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Bias v. State, 937 S.W.2d 141, 144 (Tex. App.—Houston [1st Dist.] 1997, no pet)); see Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (holding that objection is required to preserve jury argument error for appellate review). We therefore hold that Magness failed to preserve this complaint for appeal.[1]
III. Sufficiency of the Evidence for Restitution Award
We consider Magness’s evidentiary sufficiency challenge under both the legal and factual sufficiency standards of review. When evaluating the legal sufficiency of the evidence, we view it in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).
When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
We may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury alone determines the weight to place on contradictory testimonial evidence because that determination depends on the jury’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). The jury may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.
Under the Texas Penal Code, a person misapplies property he holds as a fiduciary when he deals with property contrary to an agreement under which he holds the property or contrary to the laws governing the property so held, and the manner with which the person handles the property must present a substantial risk of loss to the beneficiary or property owner. Tex. Penal Code Ann. § 32.45(b) (Vernon Supp. 2009). The Court of Criminal Appeals describes “substantial risk of loss” as “a real possibility of loss,” one that is more likely than not a risk that can result in loss. Casillas v. State, 733 S.W.2d 158, 163–64 (Tex. Crim. App. 1986).
In contending that the evidence does not support a finding that his handling of Meier’s funds presented a substantial risk of loss, Magness urges us to consider evidence that he placed the funds in a short-term real estate investment, in which, he asserts, “the money was safer than if it had been placed in a bank.” Given that Magness never gave Meier any documentation showing the whereabouts of the money, never informed Meier of the use of those funds in the real estate transaction, and never returned any money from the transaction to Meier, the jury need not have credited Magness’s defensive position that he invested Meier’s funds in the real estate transaction. See King, 29 S.W.3d at 562; Cain v. State, 958 S.W.2d. at 407 n.5.
Magness’s challenge to the sufficiency of evidence supporting the amount of the trial court’s restitution award is also unavailing. In determining the amount of restitution, the trial court must consider
(1) the amount of the loss sustained by any victim and the amount paid to or on behalf of the victim by the compensation to victims of crime fund as a result of the offense; and
(2) other factors the court deems appropriate.
Tex. Code Crim. Proc. Ann. art. 42.037(e) (Vernon Supp. 2009). There are three limits to the amount of restitution that a trial court can order. See Campbell v. State, 5 S.W.3d 693, 696–97 (Tex. Crim. App. 1999). The amount must be just and supported by a factual basis within the loss of the victim. Id. at 696. The restitution ordered must also be for the offense for which the convicted person is criminally responsible. Id. at 697. Finally, restitution is proper only for the victim or victims of the offense for which the offender is charged. Id.
The trial court’s restitution award stays within these limits. Magness admitted at trial that he had not returned $255,000 of Meier’s money to him, and the jury found that Magness misappropriated from Meier less than $200,000 but more than $100,000. The restitution award thus comports with the evidence and the jury’s finding. We hold that an adequate factual basis supports the trial court’s restitution award.
IV. Motion for shock probation
Finally, Magness contends that the statute authorizing the trial court to grant shock probation violates his federal and state constitutional rights to due process as applied in his case because it precluded consideration of his request. Article 42.12, section 10(a) of the Code of Criminal Procedure provides that:
In a felony case, only the judge who originally sentenced the defendant may suspend execution thereof and place the defendant under community supervision pursuant to Section 6 of this article. If the judge who originally sentenced the defendant is deceased or disabled or if the office is vacant and the judge who originally sentenced the defendant is deceased or disabled or if the office is vacant and a motion is filed in accordance with Section 6 of this article, the clerk of the court shall promptly forward a copy of the motion to the presiding judge of the administrative judicial district for that court, who may deny the motion without a hearing or appoint a judge to hold a hearing on the motion.
Tex. Code Crim. Proc. Ann. art. 42.12 § 10(a) (Vernon Supp. 2009). Magness, however, has not shown that the Legislature lacked a rational basis for limiting the authority to grant a request for community supervision to the sentencing judge or that he was prevented from having his request for shock probation heard before the end of the sentencing judge’s term. Further, he has not shown that he presented his motion to the regional presiding judge for a ruling or appointment of a judge to hear it. Absent those showings, we decline to consider his constitutional challenge.
Conclusion
We conclude that (1) the trial court acted within its discretion in declining Magness’s request to withdraw his refusal of court-appointed counsel, (2) Magness waived his complaint concerning the State’s closing argument, (3) the evidence supports the restitution award, and (4) Magness failed to show that the application of Article 42.12, section 10(a) of the Code of Criminal Procedure to his motion for shock probation violates his due process rights. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Wilson.[2]
Do not publish. Tex. R. App. P. 47.2(b).
[1] To the extent Magness’s fundamental error argument complains of a due process violation, it also fails. We presume that the jury followed the law correctly set forth in the court’s charge when, as here, no evidence has been presented to rebut that presumption. See Thrift v. State, 176 S.W.3d 221, 223–24 (Tex. Crim. App. 2005).
[2] The Honorable Randy Wilson, State District Judge of the 157th Judicial District, Harris County, Texas, sitting by assignment.