TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00275-CR
Kenneth Terrell, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0981127, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
After the jury found appellant guilty of sexual assault of a child, Tex. Penal Code Ann. § 22.011 (West Supp. 1999), the trial court assessed punishment, enhanced by two prior felony convictions, at confinement for fifty years. Appellant asserts two points of error, contending that the trial court erred by: (1) denying appellant the right to represent himself; and (2) admitting the testimony of an expert witness over appellant's objection. We will overrule appellant's points of error.
The Sixth Amendment grants an accused the right of self-representation. See Farreta v. California, 422 U.S. 806, 819 (1975). After being made aware of the "dangers and disadvantages of self-representation," an accused may choose to represent himself if he does so knowingly and intelligently. Id. at 835. It is incumbent upon an accused to clearly and unequivocally inform the trial court of his desire to prosecute his appeal without the aid of counsel. See Webb v. State, 533 S.W.2d 780, 786 (Tex. Crim. App. 1976). However, an accused cannot request self-representation to obstruct the "orderly procedure in the courts or to interfere with the fair administration of justice." See Blankenship v. State, 673 S.W.2d 578, 585 (Tex. Crim. App. 1984). A trial court may properly deny a request for self-representation if the record indicates that the request was made for delay or that the request would have resulted in delay. See Thomas v. State, 550 S.W.2d. 64, 68-69 (Tex. Crim. App. 1977).
After hearing a number of pre-trial motions in this cause on the date set for trial, the court asked defense counsel if appellant had filed an election to have the jury assess punishment. Defense counsel advised the court that his client was "somewhat difficult to get along with," and that counsel needed a moment to discuss this matter with appellant.
Following arraignment on the primary offense, the trial court twice reviewed the consequences of findings of true to the averments in the indictment that appellant had two prior convictions. Appellant twice gave unresponsive answers to the court's questions about his understanding of such consequences despite his counsel's efforts to get him to answer the questions.
Defense counsel then advised the trial court that appellant wanted to invoke his right to represent himself "at this time." The trial court denied the request, stating: "[Y]ou've been with this court since -- these offenses occurred in 1977, and you've been represented by an attorney through three different indictments and he's filed numerous motions, too, on your behalf." Appellant stated that he had filed "some motions." The trial court responded, "[h]e's going to represent you. You don't have a constitutional right the day the case is called for trial after being on the docket six months to say now I want to represent myself." After appellant stated that he had not "gotten any where," the trial court said "[W]e're going to get somewhere today, we're going to pick a jury." Appellant replied, "Okay. I filed a motion and the judge wouldn't let me--I thought Judge Wisser was my judge."
The right to self-representation must be clearly and unequivocally asserted. No written motion was filed for self-representation and the only request made was defense counsel's assertion that appellant wanted to invoke such right. When the trial court denied the request, appellant stated "Okay--I thought Judge Wisser was my judge." We find it difficult to characterize the foregoing colloquy between the trial court, defense counsel and appellant as a clear and unequivocal request for self-representation.
Prior to defense counsel having advised the trial court of appellant's desire to represent himself, defense counsel had advised the trial court that appellant was "somewhat difficult to get along with." Defense counsel's representation appears to be supported by appellant's failure to be responsive to certain questions by the trial court despite his counsel's advice to answer the questions. While the trial court made no explicit findings, its statements following the only mention of self-representation reflect an implicit finding that the request was for delay. We find sufficient circumstances to support such an implicit finding by the trial court. Appellant's first point of error is overruled.
In his second point of error, appellant contends that the trial court abused its discretion in allowing an expert witness to testify because the State did not provide appellant with adequate notice of its intent to introduce such testimony. Appellant objected to Dr. William Carter testifying because the State did not notify defense counsel until the night before Dr. Carter was called as a witness. After the trial court granted defense counsel a thirty minute recess to confer with Dr. Carter, defense counsel stated: "Your honor has generously given me an opportunity to discuss the case with the doctor, -- and I feel that I've discussed things enough that I don't really see that any further discussion would be of any benefit."
It appears that Dr. Clark was called to testify the night before he was to appear because of the inability of the State's originally designated expert to appear. The trial court limited Dr. Clark's testimony to rebuttal after the defense had presented its case.
Appellant does not cite any authority, statutory or case law, to support his claims. See Tex. R. App. P. 38.1(h). Defense counsel assured the trial court that it had offered him all the time he needed to confer with Dr. Clark about his testimony. We perceive no error.
In a multifarious point of error, appellant urges that the expert's testimony improperly bolstered the victim's testimony. Dr. Carter, a child psychologist who specialized in the field of sexually abused children, testified as to the reasons why minor sexual victims delay making an outcry. Appellant only makes a general complaint without identifying where in the record Dr. Clark bolstered the victim's testimony. Nor does appellant make a clear and concise argument to support his contentions. See id. Moreover, we hold that error, if any, was harmless beyond a reasonable doubt. See Tex. R. App. P. 44.2. Appellant's second point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices B. A. Smith, Yeakel and Davis*
Affirmed
Filed: March 11, 1999
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
find it difficult to characterize the foregoing colloquy between the trial court, defense counsel and appellant as a clear and unequivocal request for self-representation.
Prior to defense counsel having advised the trial court of appellant's desire to represent himself, defense counsel had advised the trial court that appellant was "somewhat difficult to get along with." Defense counsel's representation appears to be supported by appellant's failure to be responsive to certain questions by the trial court despite his counsel's advice to answer the questions. While the trial court made no explicit findings, its statements following the only mention of self-representation reflect an implicit finding that the request was for delay. We find sufficient circumstances to support such an implicit finding by the trial court. Appellant's first point of error is overruled.
In his second point of error, appellant contends that the trial court abused its discretion in allowing an expert witness to testify because the State did not provide appellant with adequate notice of its intent to introduce such testimony. Appellant objected to Dr. William Carter testifying because the State did not notify defense counsel until the night before Dr. Carter was called as a witness. After the trial court granted defense counsel a thirty minute recess to confer with Dr. Carter, defense counsel stated: "Your honor has generously given me an opportunity to discuss the case with the doctor, -- and I feel that I've discussed things enough that I don't really see that any further discussion would be of any benefit."
It appears that Dr. Clark was called to testify the night before he was to appear because of the inability of the State's originally designated expert to appear. The trial court limited Dr. Clark's testimony to rebuttal after the defense had presented its case.
Appellant does not cite any authority, statutory or case law, to support his claims. See Tex. R. App. P. 38.1(h). Defense counsel assured the trial court that it had offered him all the time he needed to confer with Dr. Clark about his testimony. We perceive no error.
In a multifarious point of error, appellant urges that the expert's testimony improperly bolstered the victim's testimony. Dr. Carter, a child psychologist who specialized in the field of sexually abused children, testified as to the reasons why minor sexual victims delay making an outcry. Appellant only makes a general complaint without identifying where in the record Dr. Clark bolstered the victim's testimony. Nor does appellant make a clear and concise argument to support his contentions. See id. Moreover, we hold that error, if any, was harmless beyond a reasonable doubt. See Tex. R. App. P. 44.2. Appellant's second point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices B. A. Smith, Yeakel and Davis*
Affirmed
Filed: March 11, 1999
Do Not Publish