COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00140-CR
CHARISE LYNNE DAVIS LOGAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1378668
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OPINION
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A jury convicted Appellant Charise Lynne Davis Logan of criminal trespass
after a trial at which she represented herself. The jury found Appellant guilty and
assessed punishment at sixty days’ confinement in the Tarrant County jail,
probated for twelve months. The trial court sentenced Appellant accordingly but
suspended imposition of the sentence, placing Appellant on community
supervision for twelve months.
Appellant brings three issues on appeal, challenging the trial court’s
determination of her competence to stand trial and to represent herself,
questioning the voluntariness of her waiver of the right to counsel, and
challenging the constitutionality of the trial court’s failure to appoint counsel to
represent her during mental competence proceedings. Because, under the
unique and limited facts presented here, the trial court reversibly erred in allowing
Appellant to represent herself during pretrial and trial proceedings, we reverse
the trial court’s judgment and remand this case to the trial court for proceedings
consistent with this opinion.
Facts
On June 23, 2014, Appellant was given a trespass warning by Officer
Arvind Isaac of the University of Texas at Arlington (UTA) Police Department.
Isaac had responded to a complaint that someone was handing out flyers without
authorization. The complainant provided a description of the person, what the
person was wearing, and the sign the person carried. En route to the area, Isaac
saw Appellant, who matched the description the complainant had provided.
Isaac spoke with Appellant to determine if she had prior authorization to
distribute her flyers, which described what she believed to be various
conspiracies against her. After running a records check, Isaac discovered that
Appellant had previously been issued a criminal trespass warning by UTA police
and that the warning had expired. Isaac issued Appellant another criminal
2
trespass warning, warning her that returning to campus within six months could
result in her arrest. Appellant did not sign this warning.
On July 1, 2014, Kris Ramirez, another UTA police officer, was dispatched
in response to a call that Appellant was in the Continuing Education Workforce
building on the UTA campus, in violation of the criminal trespass warning. When
Ramirez arrived at the building, Appellant was in a computer lab in the building.
Ramirez identified Appellant, verified that she had an active criminal trespass
warning, and arrested her. In keeping with UTA’s policy, Ramirez also issued
Appellant a new criminal trespass warning, warning her not to return to the
campus for six months. The State charged Appellant with trespass based on the
July 1, 2014 events.
At a pretrial hearing, the trial court inquired whether Appellant intended to
defend herself. The trial court asked Appellant if she understood that she had a
right to an attorney and that she had the right to have an attorney appointed if
she could not afford one. Appellant answered that she did understand. The trial
court asked her about her understanding of the law and legal procedure, her
level of education, and discovery requests. Appellant admitted that she did not
know the rules of evidence, did not understand the concept of the jury charge,
and did not understand the rules of criminal procedure relating to the charging
document but declared her intent to represent herself because, at least in part,
she did not believe that she could find an attorney who was not part of the
3
conspiracies against her. The trial court found that Appellant had freely and
voluntarily waived her right to counsel.
The trial court then asked Appellant if she had ever been treated for a
mental illness. Appellant replied, “Probably ten years or more ago surrounding a
divorce.” The trial court then stated that “that at least raise[d] the question about
whether or not [she] might or might not be competent,” ordered her to be
evaluated for competency, and appointed psychologist Barry Norman to perform
the evaluation.
After the evaluation, Norman reported to the trial court that Appellant had
“a diagnosable mental illness/emotional disturbance” and that his impression of
that illness is that it is “unspecified personality disorder.” That diagnosis is given
when a person “exhibits features of more than one specific personality disorder
with regard to cognition, interpersonal relationships and impulse control.”
Norman diagnosed Appellant’s level of impairment as “[m]ild to moderate.” He
found that her anxiety, unusual or odd thought content, and below-average
insight and judgment supported his diagnosis.
Norman found Appellant competent to stand trial and also found that her
mental illness would not impact her ability to consult with counsel. But he also
found that she exhibited some hypervigilance and some paranoia, and he opined
that her thought patterns or personality might make her “a difficult defendant with
whom to work.” Further, while Norman found that Appellant had no “major
comprehension difficulties” and that she “verbalized a realistic understanding of
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[her then] current legal situation,” he also found that she might be “unclear
regarding certain legal strategies” absent the help of counsel. He summarized:
Without a doubt, this lady does present with some unusual
thoughts. However, her pre-conceived ideas do not interfere with
her ability to interact with the court or to understand current
prosecution. She lacks a great deal of insight into her behavior and
does not understand how her behavior impacts those around her.
The obvious concern to the court is how to understand her verbal
challenges to the court and lack of general cooperation with the
normal procedures following an indictment and detention. Her
actions are not due to any psychotic mental processes and her
behaviors are best understood to be of a volitional nature. The
rigidity of her thought process and somewhat demanding demeanor
will not likely remit noticeably in the near future.
Norman’s opinion was limited to the information available on February 6,
2015. He gave no opinion on whether Appellant was competent to represent
herself at trial.
At a pretrial hearing thereafter, Appellant rejected two plea offers—to plead
guilty and receive credit for time served or to plead no contest with credit for time
served.
At that same hearing, the trial court also addressed a verified, notarized,
pro se document filed by Appellant on March 5, 2015. This document details
Appellant’s beliefs about how she had been “hunted by a secret society and
currently, a sex ring for several years of [her] life” and outlines a pattern of
harassment and surveillance of her conducted by the secret society. Appellant
implicates President Barack Obama and the family of former President George
H.W. Bush in this conspiracy. According to the pro se document, the secret
5
society surveilled Appellant between 2011 and 2015. Appellant alleges in the
document that the secret society used witchcraft, voodoo, and blackmail to force
unwilling participants to engage in activities against her. She further alleges that
the conspiracy was after her because of the auditory and visual gifts bestowed
upon her by God. The trial court determined that the untitled document was not
a motion and requested no relief and that therefore there was nothing in the
document for the trial court to rule on.
In her opening statement, Appellant told the jury that she had “been
harassed for a very long time by a secret society.” In her defense, she testified in
narrative form. Among other statements, Appellant stated that she had not been
read her Miranda 1 rights by Ramirez, and she described being persecuted by a
secret society that she had refused to join.
The Law
Although Appellant raises other constitutional issues, they all turn on
whether, under the peculiar facts and circumstances of this case, the trial court
erred in permitting Appellant to represent herself. Fundamental to the principle of
due process is the right of a person accused of committing a criminal offense to
competent representation before the tribunal. 2 A defendant is entitled to be
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
2
See Moore v. State of Michigan, 355 U.S. 155, 159, 78 S. Ct. 191, 194
(1957) (“We hold that [Moore’s] case falls within that class in which the
6
represented by counsel unless the defendant intelligently and knowingly waives
this right. 3 A defendant who waives the right to counsel out of fear does not
waive that right voluntarily. 4 The Supreme Court of the United States has held,
[W]here a person convicted in a state court has not intelligently and
understandingly waived the benefit of counsel and where the
circumstances show that his rights could not have been fairly
protected without counsel, the Due Process Clause invalidates his
conviction . . . . Where the right to counsel is of such critical
importance as to be an element of Due Process under the
Fourteenth Amendment, a finding of waiver is not lightly to be
made. 5
Although a defendant in a criminal trial has the right to represent herself,
the right to represent oneself is not absolute. 6 The test for competence to stand
trial is not alone the test for competence to represent oneself at trial. 7 Rather,
when determining the ability of a defendant to represent herself pro se, the trial
court should take a realistic account of the particular defendant’s capacity to
intervention of counsel, unless intelligently waived by the accused, is an essential
element of a fair hearing.”).
3
U.S. Const. amends. VI & XIV; Tex. Const. art I, § 10; Tex. Code Crim.
Proc. art. 1.05 (West 2005); Faretta v. California, 422 U.S. 806, 835, 95 S. Ct.
2525, 2541 (1975).
4
Moore, 355 U.S. at 164–65, 78 S. Ct. at 196–97.
5
Id. at 161, 78 S. Ct. at 195 (internal quotation marks and citation omitted).
6
See Indiana v. Edwards, 554 U.S. 164, 171, 128 S. Ct. 2379, 2384
(2008); Martinez v. Ct. App. of Cal., Fourth App. Dist., 528 U.S. 152, 163, 120 S.
Ct. 684, 692 (2000); Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46.
7
Edwards, 554 U.S. at 175, 128 S. Ct. at 2386.
7
represent herself. 8 A person could be capable of working with counsel at trial
and thus meet the test for competency set out in Dusky v. United States, 9 yet at
the same time be unable to carry out the basic tasks necessary to present her
own defense without the assistance of counsel. 10 The Edwards court reminds us
that “proceedings must not only be fair, they must appear fair to all who observe
them.” 11 The Constitution thus “permits States to insist upon representation by
counsel for those competent enough to stand trial under Dusky but who still
suffer from severe mental illness to the point where they are not competent to
conduct trial proceedings by themselves.” 12
Analysis
Rule of appellate procedure 33.1 “does not apply to rights which are
waivable only or to absolute systemic requirements, the violation of which may
still be raised for the first time on appeal.” 13 We may therefore analyze
8
Id. at 177–78, 128 S. Ct. at 2387–88.
9
362 U.S. 402, 402, 80 S. Ct. 788, 789 (1960).
10
Edwards, 554 U.S. at 175–76, 128 S. Ct. at 2386.
11
Id. at 177, 128 S. Ct. at 2387 (internal quotation marks and citation
omitted).
12
Id. at 178, 128 S. Ct. at 2388.
13
State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009); see
Grado v. State, 445 S.W.3d 736, 741, 743 (Tex. Crim. App. 2014); Henson v.
State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013), cert. denied, 134 S. Ct. 934
8
Appellant’s complaints concerning deprivation of counsel regardless of
preservation. 14
Appellant’s response to the trial court that she had received previous
psychiatric treatment prompted the trial court to order Norman to examine her to
determine whether she was competent to stand trial. Norman filed his report
stating, in part, that Appellant was competent to assist her counsel, but she was
suffering from a diagnosable mental illness that affected cognition, impulse
control, and interpersonal relationships. Although Norman found that this
disorder would not impact her ability to consult with counsel, he also found that
she did exhibit unusual or odd thought content and that her insight and judgment
were below average. Norman reported that Appellant displayed organized
thoughts and did not spontaneously espouse any delusional beliefs that would
interfere with the ability to assist counsel, but he also found that she “expressed
some hyper-vigilance and perhaps some paranoia.” He opined that these
conditions did not interfere with her “ability to interact with the court” yet also
noted the possibility that her “thought pattern or . . . personality style [might]
make [her] a difficult defendant with whom to work.” Norman noted that
(2014); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex. App.—Fort Worth 2012,
pet. ref’d).
14
See Henson, 407 S.W.3d at 768; Denstitt v. State, No. 02-14-00172-CR,
2015 WL 4043285, at *3 (Tex. App.—Fort Worth July 2, 2015, no pet.) (mem.
op., not designated for publication).
9
Appellant exhibited “mild paranoid mentation” but also noted that she “displayed
no evidence of a disorder which would significantly impair her current
understanding of reality.” At the same time, he noted that Appellant “present[ed]
with some unusual thoughts,” “lack[ed] a great deal of insight into her behavior[,]
and d[id] not understand how her behavior impacts those around her.” Norman
noted that the trial court’s “obvious concern” would be “how to understand
[Appellant’s] verbal challenges to the court and lack of general cooperation with
the normal procedures following an indictment and detention,” and he opined that
“[t]he rigidity of her thought process and somewhat demanding demeanor [would]
not likely remit noticeably in the near future.”
Indeed, in the month following the competency evaluation, these “unusual
thoughts” noted by Norman were shown to include Appellant’s belief that a secret
society was using witchcraft, voodoo, and blackmail to force unwilling participants
to engage in activities against her because of the auditory and visual gifts
bestowed upon her by God. She believed that she was the subject of their
surveillance and the surveillance of a sex ring between 2011 and 2015. She
believed that President Obama and the family of former President George H.W.
Bush were involved in the conspiracy.
Although it is unclear to what extent Norman was made aware of
Appellant’s belief that the secret society was after her, the trial court was aware
of her conspiracy beliefs before trial. In addition, this conspiracy was the defense
she raised during trial. Yet the trial court allowed her to represent herself in the
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trial on the merits and allowed her to continue to represent herself even after she
raised this bizarre defense.
The record is disturbing. At a pretrial hearing, the trial court asked
Appellant if she understood that she had a right to an attorney and that she had
the right to have an attorney appointed if she could not afford one. Appellant
answered that she did understand. The trial court then asked Appellant a
number of questions about her understanding of her responsibilities in
representing herself. The trial court then had this exchange with Appellant:
THE COURT: Do you understand that it is generally unwise to
represent yourself?
[Appellant]: And I understand also, Your Honor, that I
attempted to get legal counsel, and I was unable
to do so for whatever political reasons may or
may not have existed to obstruct that.
THE COURT: Did you apply for court-appointed counsel?
[Appellant]: I did not apply because my trust was broken with
the system, sir. And I do apologize. That’s not
your fault; you are newly here. It is not everybody
else’s fault. You didn’t know.
....
THE COURT: No one denied you counsel?
[Appellant]: No one denied me counsel. It was just a
suspicion of me concerning proper representation
that I would be fully represented.
THE COURT: Are you today asking to be—to have counsel
appointed for you?
[Appellant]: I am not asking that today, sir. Because my
suspicion or my—the bruising of whatever
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behaviors that I’ve encountered within the system
has got me to that point where I do not have trust
that I would be appropriately represented.
THE COURT: Understanding these admonishments, is it still
your desire to represent yourself and give up your
right to be represented by an attorney?
[Appellant]: At this time, yes, it is still, sir.
THE COURT: Is your decision freely and voluntarily made?
[Appellant]: Concerning all the circumstances that I’ve
announced to you at this point in time, the best I
can do is, yes.
When Appellant filed her waiver of counsel with the trial court, she wrote on the
back of the waiver, “It is my assumption, that I won’t find an attorney, who won’t
be manipulated by U.T.A. and other corrupt forces attempting to discredit me, in
this situation alleged CTW and other situations.”
Not only must a defendant charged with a criminal offense be competent to
stand trial and, separately, competent to conduct her own defense without
assistance of counsel should she so choose, her waiver of counsel in such
instance must be knowingly and voluntarily exercised. That is, she must be
competent to waive counsel. 15 We hold that on this record, Appellant was
entitled to representation by an attorney during the pretrial and trial proceedings.
Her waiver of counsel was based on her fear that the attorney would be part of
15
See Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (stating that the record
must establish that the pro se defendant “knows what he is doing and his choice
is made with eyes open”) (internal quotation marks and citation omitted).
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the system of harassment that she believed she had been subjected to by a
secret society and by a sex ring over the past several years. Consequently, the
record does not support a determination that her waiver of counsel was voluntary
or that a realistic account of her capacity to represent herself established any
such capacity. Instead, the record supports the conclusion that Appellant’s rights
to counsel and due process were violated. 16
The trial court properly ordered Appellant to be examined to determine
whether she was incompetent to stand trial. But the trial court did not appoint
counsel to represent her regarding her mental competence before the
competency evaluation, or at all until after she filed a pro se notice of appeal.
Within her third issue, Appellant argues that article 46B.006 of the code of
criminal procedure required that she be represented by counsel. Article 46B.006
provides,
(a) A defendant is entitled to representation by counsel before any
court-ordered competency evaluation and during any proceeding at
which it is suggested that the defendant may be incompetent to
stand trial.
(b) If the defendant is indigent and the court has not appointed
counsel to represent the defendant, the court shall appoint counsel
as necessary to comply with Subsection (a). 17
16
See Moore, 355 U.S. at 164–65, 78 S. Ct. at 196–97.
17
Tex. Code Crim. Proc. Ann. art. 46B.006 (West 2006).
13
We hold that the trial court violated article 46B.006 by failing to appoint
counsel for Appellant before the competency evaluation. (Appellant was found
indigent only after she filed a notice of appeal.) Nor do we find anything in the
record that would justify the trial court’s failure to provide Appellant with counsel
at that preliminary juncture of the proceedings. We conclude that the trial court
abused its discretion by allowing Appellant to proceed as her own counsel. This
error resulted in Appellant being put to trial with incompetent counsel, a violation
of her constitutional rights to counsel and due process.
This case is distinguishable from a 2013 unpublished case from this court,
Little v. State. 18 The Little trial court should have appointed counsel to represent
Little for the determination of competence but, in violation of article 46B.006, did
not. 19 The Little court, however, later appointed counsel, and counsel had ample
opportunity to request a jury trial on competence. 20 Additionally, because he
refused appointed counsel, Little had standby counsel for the trial itself. 21 This
18
No. 02-12-00086-CR, 2013 WL 5593297 (Tex. App.—Fort Worth Oct. 10,
2013, no pet.) (mem. op., not designated for publication).
19
Id. at *4.
20
See id. at *1.
21
Id. at *5.
14
court held the error harmless in Little. 22 Appellant here, though, had no
appointed counsel, standby or otherwise, before her conviction and sentence.
Structural error is error that “‘affect(s) the framework within which the trial
proceeds, rather than simply an error in the trial process itself.’” 23 Total
deprivation of counsel at trial is structural error. 24 The trial court deprived
Appellant of counsel by accepting her waiver of counsel that was neither
voluntary nor knowing. Such error is automatically reversible. 25
We therefore sustain that part of Appellant’s first issue challenging the trial
court’s decision to allow her to represent herself and her second and third issues,
which are dispositive. We do not reach the remainder of her first issue, which
challenges the trial court’s determination that she was competent to stand trial.
22
Id. at *4–*5.
23
Jordan v. State, 256 S.W.3d 286, 290 (Tex. Crim. App. 2008) (quoting
Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991)); see
also United States v. Davila, 133 S. Ct. 2139, 2149 (2013) (explaining that
structural errors “include denial of counsel of choice, denial of self-
representation, denial of a public trial, and failure to convey to a jury that guilt
must be proved beyond a reasonable doubt”).
24
See Gideon v. Wainwright, 372 U.S. 335, 342–45, 83 S. Ct. 792, 795–97
(1963).
25
See id.
15
Conclusion
Having sustained part of Appellant’s first issue as well as her second and
third issues, which are dispositive, we reverse the trial court’s judgment and
remand this cause to the trial court for proceedings consistent with this opinion.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ.
PUBLISH
DELIVERED: February 4, 2016
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