Marcus Jamez Lewis v. State ( 2015 )

ACCEPTED
14-14-00779-cr
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/5/2015 10:06:13 AM
CHRISTOPHER PRINE
CLERK
No. 14-14-00779-CR
FILED IN
14th COURT OF APPEALS
In the HOUSTON, TEXAS
Court of Appeals 8/5/2015 10:06:13 AM
For the CHRISTOPHER A. PRINE
Clerk
Fourteenth District of Texas
At Houston
♦
No. 1398109
In the 182nd District Court
Of Harris County, Texas
♦
MARCUS JAMEZ LEWIS
Appellant
v.
THE STATE OF TEXAS
Appellee
♦
State’s Appellate Brief
♦
Devon Anderson Clinton A. Morgan
District Attorney Assistant District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
Celeste Byrom morgan_clinton@dao.hctx.net
Assistant District Attorney
Harris County, Texas 1201 Franklin St., Suite 600
Houston, Texas 77002
Telephone: 713.755.5826
Oral Argument Requested Regarding Appellant’s First Point
Statement Regarding Oral Argument
The State believes that the issues surrounding the appellant’s first
point of error are interesting enough, and this Court’s possible holdings
various enough, that oral argument would aid this Court’s decision-
making process. Accordingly, the State requests oral argument, though
only on the appellant’s first point.
i
Identification of the Parties
Counsel for the State:
Devon Anderson
 District Attorney of Harris County
Marisa Dunagan & Celeste Byrom
— Assistant District Attorneys at trial
Clinton A. Morgan
 Assistant District Attorney on appeal
Appellant:
Marcus Jamez Lewis
Counsel for the Appellant:
Ted Doebbler
— Counsel at trial
Alexander Bunin & Jani Maselli Wood
— Counsel on appeal
Trial Judges:
James Anderson
 Presiding judge
ii
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ........................................................................... vi
Statement of the Case .......................................................................... 1
Introductory Note ................................................................................. 1
Statement of Facts ................................................................................ 2
Summary of the Argument .................................................................. 4
Reply to Point One ................................................................................ 6
Because of the appellant’s bizarre pre-trial filings and disruptive
courtroom behavior, the trial court did not abuse its discretion in
denying his efforts at self-representation.......................................................... 6
I. Factual Background: The appellant’s pseudolegal filings and
uncooperative behavior forced the trial court to remove him from
the courtroom. .......................................................................................................... 6
A. The appellant’s pre-trial filings ............................................................ 6
B. The Faretta hearing................................................................................... 7
II. Legal Background: The right to self-representation can be
denied if a defendant is disruptive or is not competent to represent
himself. ...................................................................................................................... 15
A. The right and its limits .......................................................................... 15
B. Standard of review ................................................................................. 20
III. Argument: This Court could affirm the trial court’s ruling either
on the basis that the appellant did not understand the proceedings
well enough to represent himself or on the basis that the appellant
was using his right to self-representation to obstruct trial
proceedings. This Court should affirm on the second basis. .............. 21
A. Evidence that the appellant did not understand the
proceedings ........................................................................................................ 22
iii
B. Evidence that the appellant was attempting to use his right to
self-representation to obstruct the proceedings ................................ 24
Reply to Point Two ............................................................................ 25
The appellant’s use of sovereign-citizen tactics does not raise a bona
fide doubt about his mental competence to stand trial. ........................... 25
I. Legal Background: Absent a request from a party, a trial court’s
decision not to hold a competency inquiry is an abuse of discretion
only if, as a matter of law, the evidence created a “bona fide doubt”
regarding a defendant’s competence to stand trial. ............................... 26
II. Argument: The only evidence of incompetence the appellant
points to are his sovereign-citizen tactics, but those are evidence of
obstinateness, not incompetence. ................................................................. 28
Reply to Point Three ......................................................................... 31
The appellant’s point is based on a factual mistake. On the date the
appellant was stopped, the offense of improper display of a license
plate was punishable by a fine of between $5 and $200, thus counsel
was not ineffective for failing to file a motion to suppress based on the
fact that improper display of a license plate was not a criminal offense.31
Reply to Point Four ........................................................................... 33
The trial court did not err in refusing to hold a hearing on the
appellant’s motion for new trial. The motion alleged that counsel was
ineffective for failure to investigate the case and call witnesses, but the
only uncalled witness mentioned in the motion was the appellant’s
mother, and her affidavit that she would say “good things” about the
appellant was conclusory....................................................................................... 33
Reply to Point Five ............................................................................ 36
The question of fact that the appellant points out in his brief was not
material to the determination of probable cause to search the
appellant’s car, thus the trial court did not err in refusing to give the
jury a 38.23 instruction. ......................................................................................... 36
I. This argument was not presented to the trial court ..................... 37
II. The minor discrepancy in the testimony was immaterial to the
legality of the appellant’s detention or the search of the car. ............ 38
iv
Conclusion .......................................................................................... 40
Certificate of Compliance and Service ........................................... 41
v
Index of Authorities
Cases
Alford v. State
367 S.W.3d 855 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) .............................................................. 21
Almanza v. State
686 S.W.2d 157 (Tex. Crim. App. 1985) ........................................................... 37
Birdwell v. State
10 S.W.3d 74 (Tex. App.—
Houston [14th Dist.] 1999, pet. ref’d) .............................................................. 17
Buerger v. State
60 S.W.3d 358 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d) ....................................................... 34, 35
Chadwick v. State
309 S.W.3d 558 (Tex. Crim. App. 2010) ............................................ 20, 23, 30
Collier v. State
959 S.W.2d 621 (Tex. Crim. App. 1997) ........................................................... 27
Colon v. State
717 S.W.2d 474 (Tex. App.—
San Antonio 1986, no pet.) .................................................................................... 17
Cunningham v. State
11 S.W.3d 436 (Tex. App.—
Houston [14th Dist.] 2000, no pet.)................................................................... 39
Ex parte Winton
837 S.W.2d 134 (Tex. Crim. App. 1992) ........................................................... 17
Faretta v. California
422 U.S. 806, 807 (1975) ....................................................................................... 15
Godinez v. Moran
509 U.S. 389 (1993) ................................................................................................. 16
Goffney v. State
843 S.W.2d 583 (Tex. Crim. App. 1992) ........................................................... 16
vi
Hummel v. Com.
306 S.W.3d 48 (Ky. 2010) ....................................................................................... 18
Indiana v. Edwards
554 U.S. 164 (2008) .................................................................................. 16, 17, 30
Johnson v. State
429 S.W.3d 13 (Tex. App.—
Houston [14th Dist.] 2013, no pet.)................................................................... 27
Johnson v. State
760 S.W.2d 277 (Tex. Crim. App. 1988) ........................................................... 16
Jordan v. State
883 S.W.2d 664 (Tex. Crim. App. 1994) .................................................... 33, 34
Madden v. State
242 S.W.3d 504 (Tex. Crim. App. 2007) .................................................... 37, 38
Meads v. Meads
2012 ABQB 571 (CanLII)
available at http://canlii.ca/t/fsvjq ......................................................... passim
Moore v. State
999 S.W.2d 385 (Tex. Crim. App. 1999) ........................................................... 28
Salahud-din v. State
206 S.W.3d 203, 207 (Tex. App.—
Corpus Christi 2006, pet. ref’d) .......................................................................... 27
Smith v. State
286 S.W.3d 333 (Tex. Crim. App. 2009). ................................................... 33, 34
Strickland v. Washington
466 U.S. 668 (1984) ................................................................................................. 34
United States v. Brock
159 F.3d 1077 (7th Cir. 1998) .............................................................................. 18
United States v. Brunson
482 Fed. Appx. 811 (4th Cir. 2012) .................................................................... 18
United States v. Long
597 F.3d 720 (5th Cir. 2010)................................................................................. 18
United States v. Mosley
607 F.3d 555 (8th Cir. 2010).................................................................. 18, 19, 25
vii
Washington v. State
417 S.W.3d 713 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) .............................................................. 35
Statutes
TEX. CODE CRIM. PROC. art. 46B.003 ........................................................................... 26
TEX. CODE CRIM. PROC. art. 46B.004 .................................................................... 26, 27
TEX. TRANSP. CODE § 504.943....................................................................................... 32
TEX. TRANSP. CODE § 504.948 (West Supp. 2014) ............................................... 32
Other Authorities
Act of June 14, 2013, 83rd Leg. R.S., ch. 1135
2013 Tex. Sess. Law Serv. 2708 ........................................................................... 32
CRACKING THE CODE (3rd ed. 2002)........................................................................... 29
viii
Statement of the Case
The appellant was indicted for possession of between 1 and 4
grams of cocaine. (CR 13). The indictment alleged two prior felony
convictions, with one of the felonies having been committed after the
conviction for the other became final. (CR 13). A jury found him guilty as
charged. (CR 121, 124). The appellant pled “not true” to both
enhancement paragraphs, but the trial court found them true and
assessed punishment at 45 years’ confinement. (CR 124). The trial court
certified the appellant’s right of appeal, and the appellant filed a timely
notice of appeal. (CR 124, 129).
Introductory Note
This is a very simple case made complex only by the appellant’s
use of sovereign-citizen tactics at trial. If this Court is confused by the
appellant’s bizarre pre-trial filings1 or courtroom discourse,2 the State’s
1 E.g., CR 40-45, which is titled “Affidavit of Marcus Jamez Lewis©, by Special
Visitation.” In this document the appellant states that he “owns the name Marcus
Jamez Lewis© and the trade-name MARCUS JAMEZ LEWIS©.” He then lists several
people and entities (defense counsel, the foreman of the grand jury, an assistant
district attorney, Harris County, the state of Texas) and specifies that he “neither
granted [the people and entities] permission for using nor authorized … use of the
name MARCUS JAMEZ LEWIS© also known by any and all derivatives and variations
in the spelling of said name except ‘Marcus Jamez Lewis’, at any time without
consideration for the use of said name.”
1
appellate counsel recommends as a resource a Canadian case, Meads v.
Meads, 2012 ABQB 571 (CanLII), available at http://canlii.ca/t/fsvjq
(last viewed on August 5, 2015), which appears to be the best
researched and most authoritative resource on these sorts of disruptive
trial tactics. Comparing the appellant’s actions at trial with the
discussion in Meads makes clear that the appellant was not attempting
to engage with the trial court but was instead seeking to undermine its
authority and thwart any effort at an orderly trial.
Statement of Facts
Houston Police Officers Krisopher Solis and Juan Diaz were on
patrol when they observed a Chevy Impala with improperly displayed
license plates. (3 RR 20). The front license plate was inside the car on
the dashboard and the rear license plate was taped to the inside of the
rear window. (3 RR 20, 70). The officers initiated a traffic stop. (3 RR
20).
As the Impala slowed down, the officers observed the driver and
passenger engaged in furtive movements toward the center console and
2E.g., 2 RR 7 (appellant: “I'm not representing myself. I'm representing myself as
Paramount Security Interest Holder of all property collateral belonging to the
defendant. I am the agent for Marcus Jamez Lewis.”).
2
the door panels. (3 RR 21-22, 73). When the Impala stopped and the
officers approached, Solis observed a rock of crack cocaine sitting on the
passenger’s lap. (3 RR 25). Solis asked him to step out of the car. (3 RR
26).
At that point Diaz asked the driver, the appellant, for his
identification, but the appellant had no identification on him. (3 RR 74-
75). The appellant became argumentative, so Diaz asked him to step out
of the car. (3 RR 75). The appellant did not comply but instead made a
furtive movement toward the center console, as if to hide something. (3
RR 75-76). Solis drew his TASER and ordered the appellant out of the
car; the appellant complied. (3 RR 76).
After the appellant stepped out, Solis showed Diaz the rock of
cocaine he had found on the passenger. (3 RR 78). Based on the drugs
they had already found and the appellant’s apparent attempt to hide
something, Diaz began a search of the car for additional drugs. (3 RR
81). Diaz observed a pack of Newport cigarettes in the panel
compartment of the driver’s door. (3 RR 81). Diaz knew that cigarette
boxes were common hiding places for narcotics. (3 RR 81-82). Diaz
checked the box and discovered ten baggies of powder cocaine. (3 RR
81-82). A subsequent search of the vehicle revealed a CD case that
3
contained a 9mm handgun. (3 RR 47, 89). In the truck, police found a
fireproof safe that contained the appellant’s driver license. (3 RR 51, 89-
90).
Summary of the Argument
The appellant raises five points of error. In his first point of error,
the appellant complains that the trial court erred in not letting him
represent himself at trial. However, the appellant’s pre-trial filings and
courtroom behavior show that either he did not understand the
proceedings well enough to represent himself or else he was engaged in
an intentional effort to disrupt the trial. In either of those circumstances,
the trial court was correct to deny his efforts at self-representation.
In his second point, the appellant claims that his sovereign-citizen
tactics were a sign that he was incompetent to stand trial and the trial
court erred by not having an inquiry on the matter. The State does not
believe that the disruptive trial tactics used in this case are indicative of
incompetence, but are instead signs of obstinateness that do not require
a competence inquiry.
In his third point, the appellant claims that his trial counsel was
ineffective for not filing a motion to suppress. However, the appellant’s
4
belief that a motion to suppress would have been meritorious is based
on a factual misunderstanding of the law.
In his fourth point, the appellant complains about the trial court’s
refusal to hold a hearing on his motion to for new trial. However, the
only evidence supporting the appellant’s motion was an affidavit from
his mother stating that if she had been called as a witness she would
have said “good things” about the appellant. This conclusory affidavit
was an insufficient basis to require the trial court to hold a hearing on
the appellant’s motion.
In his fifth point, the appellant claims that the trial court erred in
not instructing the jury regarding illegally obtained evidence. However,
the conflict in the testimony that the appellant points to as creating a
question of fact was immaterial to the legality of the search that
uncovered his drugs, thus the trial court was not required to instruct the
jury as the appellant claims.
5
Reply to Point One
Because of the appellant’s bizarre pre-trial filings and disruptive
courtroom behavior, the trial court did not abuse its discretion in
denying his efforts at self-representation.
I. Factual Background: The appellant’s pseudolegal filings
and uncooperative behavior forced the trial court to
remove him from the courtroom.
A. The appellant’s pre-trial filings
In June 2014, three months before his trial, the appellant filed a
document labeled “Motion to Dismiss Court Appointed Attorney; Waiver
of the Right to Counsel; Right to Proceed Pro Se.” (CR 47-50). In this
document, the appellant asserted that, after ten months of
representation, he had lost faith in his court-appointed attorney and
wished to represent himself. (CR 47-59). There is no written order on
this document, nor does there appear to have been any on-the-record
hearing, but a month later the appellant filed a request for additional
time in the jail’s law library; the request stated that the appellant was
representing himself pro se. (CR 66).
In August 2014, a month before his trial, the appellant filed a
series of documents and affidavits that, taken together, show that for
several months the appellant had been sending letters to a prosecutor.
(See CR 71-100). These documents use the sort of pseudolegal
6
“commercial law” language used by sovereign-citizen litigants. (See, e.g.
CR 90 (“Failure of Respondents to prove their claims or charges against
the Undersigned within ten (10) days (or in the alternative cease all
collection or enforcement actions against the Undersigned) shall
constitute deliberate criminal actions and willful breach of & default of a
bilateral contract (Affidavit of Agreement) formed knowingly,
intentionally, and voluntarily & between the Undersigned and the
Respondents.”)); see also Meads, 2012 ABQB 571 at para 487-91
(“[Sovereign citizen] litigants will often claim to use foisted unilateral
agreements to discharge an obligation or end a lawsuit.”).
B. The Faretta hearing
No other pre-trial documents from the appellant appear in the
record from the period after the appellant filed his motion for self-
representation. On the day when jury selection was scheduled to begin,
the trial court advised that it had read the appellant’s pre-trial motions
and understood them to be an effort to represent himself. (2 RR 4). The
trial court originally stated that it would allow the appellant to
represent himself. (2 RR 4).
7
The trial court then began asking questions to ascertain whether
the appellant’s waiver of the right to counsel was made knowingly and
intelligently. The first question regarded the appellant’s educational
background: “How far did you go in school?” (2 RR 4). The appellant
replied: “First of all, I would like to be referred to as Paramount Security
Interest Holder and Properties collateral belonging to the defendant.” (2
RR 4-5). The trial court denied this request. After several unfruitful
exchanges with the trial court, the appellant finally revealed that he had
attended Houston Community College. (2 RR 5-6).
The trial court then asked whether the appellant was aware of the
charges against him. The appellant replied: “Is there anybody in the
courtroom who can present me with the original charging instrument?”
(2 RR 6). The trial court pointed out that “[t]he lawyers had it for almost
a year now,” but offered to make a copy for the appellant. (2 RR 6). The
appellant refused the offer and demanded to see “the original.” (2 RR 6).
The trial court refused to give the appellant the original indictment from
the clerk’s file. (2 RR 6).
The trial court announced that it would have the appellant’s
formerly appointed attorney act as standby counsel, then it continued to
advise the appellant about self-representation. (2 RR 6). The trial court
8
noted that it had found the appellant’s pre-trial filings “amusing.” (2 RR
6). However, the trial court advised that it would not allow the appellant
to use “this UCC stuff” 3 at trial. (2 RR 6).
The trial court advised the appellant that if he represented
himself, he would be “held to the exact same standard of practice as a
licensed attorney.” (2 RR 7). The trial court asked if the appellant
understood this, and he replied, “No, sir.” (2 RR 7). The trial court then
stated that the appellant could not represent himself because he
“lack[ed] the basic understanding to represent himself.” (2 RR 7). The
appellant replied:
What I understand, sir, is you keep saying “representing
myself.” I’m not representing myself. I’m representing
myself as Paramount Security Interest Holder of all property
collateral belonging to the defendant. I am the agent for
Marcus Jamez Lewis.
(2 RR 7).
The trial court replied that the appellant “shows a lack of ability to
understand the issues,” and because of this the appellant could not
3Though it does not appear that the appellant explicitly cited the Uniform
Commercial Code in the pre-trial motions that made it into the record, many
sovereign-citizen tactics purport to be based on the UCC; the appellant wrote “UCC-
1308 without prejudice” under his signature acknowledging the Faretta warnings
and in post-conviction paperwork. (See CR 109, 129-130); see also Meads, 2012
ABQB 571 at para 150 (noting sovereign citizens’ reliance on UCC, even in Canadian
courts, and finding such tactics “baffling”).
9
represent himself. (2 RR 7-8). The trial court told defense counsel to
represent the appellant, to which the appellant replied: “I do not
consent to be represented by anybody.” (2 RR 8 ). The appellant stated
that he understood that if he represented himself he would be held to
the same standard as a lawyer. (2 RR 8).
The appellant asked the judge: “[S]ir, can you identify yourself, sir?
I don’t even know who you are.” The judge identified himself: “Judge,
first name, last name, Anderson.” (2 RR 8). The appellant then asked if
the clerk and an unknown woman could identify themselves, but the
trial court replied “No” to both requests. (2 RR 8).
The trial court resumed admonishing the appellant as though he
would be able to represent himself. (2 RR 8-9). The trial court explained
again that if the appellant represented himself he would be held to the
same standard as a lawyer, and the appellant again said he understood.
(2 RR 9). The trial court noted on the record that the appellant had
signed his “Fedora motion,” which seems to be how the court reporter
transcribed “Faretta,” the seminal Supreme Court case on self-
representation. (2 RR 9; CR 108-09 (Faretta warnings signed by
appellant on day of jury selection)).
10
The trial court continued with admonishing the appellant
regarding self-representation, with mixed results in terms of getting
answers from the appellant. When the trial court advised the appellant
again that “none of this UCC stuff is getting in front of this jury,” there
was a confused exchanged in which the appellant purported not to
understand what the trial court was talking about. (2 RR 10-11).
The appellant asked about his “three-step administration process
that I tried to handle with the district attorney[4] who I don’t even know
where she is.” (2 RR 11). The trial court pointed out that the prosecutor
was standing next to the appellant, after which the appellant replied,
“Where? She didn’t identify herself.” (2 RR 11). After another exchange
in which the appellant purported not to know that the prosecutor was
the person trying the case against him, the trial court refocused the
conversation: “I understand what you’re doing here, sir. It’s just
nonsense.” (2 RR 11).
The trial court returned to admonishing the appellant. The trial
court advised that if the appellant represented himself he was waiving
his right to effective counsel. (2 RR 12). The appellant replied: “I reserve
4Neither the State’s appellate nor trial counsel knows what the appellant was
referring to here. Presumably the appellant thought it had something to do with his
pre-trial filings.
11
all of my legal rights.” (2 RR 12). The trial court asked the question
again, and this time the appellant stated that he waived his right to
effective representation. (2 RR 12).
The trial court asked if the appellant was familiar with the Penal
Code and knew the charges against him. (2 RR 12). The appellant said
that he was familiar with the Penal Code, but he was not aware of the
charges. (2 RR 12). The trial court repeated the charges the appellant
faced and asked if he understood; the appellant said that he did not. (2
RR 12-13).
At this, the trial court announced that the appellant could not
represent himself because he did not understand the charges. (2 RR 13).
The court recessed for lunch.
Something appears to have happened during the lunch break,
because when the record resumes the trial court announces that there is
“a significant security team in court.” (2 RR 13). The trial court advised
the appellant that it wanted him to “join us for your trial,” but that the
appellant was free to remain in a holding cell if he preferred. (2 RR 14).
The trial court asked if the appellant wanted to be part of the trial, to
which the appellant replied: “For the record you keep referring to me as
someone else. I am the Paramount Security Interest Holder and
12
collateral belonging to the defendant, Marcus Jamez Lewis. And the
Court can refer to as Marcus.”5 (2 RR 14). The appellant advised that he
did not consent to having defense counsel represent him, and that he
had “never consented to be represented by anybody else other than
Marcus.” (2 RR 14-15).
The trial court then asked “Marcus” whether he wanted to sit in on
the trial, and the appellant replied: “I do not consent.” (2 RR 15).
Defense counsel asked if the appellant wanted to represent himself, but
the trial court advised that “that’s not going to happen” because it had
no intention “to spend two days referring to Mr. Marcus Lewis as
Paramount Security Interest Holder in all Parties and properties of
Marcus Jamez Lewis.” (2 RR 15). The trial court characterized the
appellant’s name preference as “just silly.” (2 RR 15).
The trial court advised the appellant that he could watch the trial
so long as he was “non obstructive.” (2 RR 15). The appellant continued
to state that he did not consent to defense counsel representing him and
asked whether anyone could “show me where I consented to voluntary
waive my right to represent myself.” (2 RR 16).
5This seems to be the appellant’s take on the classic sovereign-citizen trope that
each person is, in fact, two persons, one an actual person and the other a non-
corporeal legal entity. Meads discusses this concept and its manifestations with
some detail. Meads, 2012 ABQB 571 at paras 417-46.
13
The trial court again asked the appellant whether he wanted to
observe and participate in the trial, to which the appellant replied: “I
have issue with subject matter jurisdiction.” (2 RR 17). The appellant
then asked the trial court whether its name, “Judge,” was “in your
physical capacity or primatial capacity.” (2 RR 17). The trial court said
that was in its physical capacity. (2 RR 17). The appellant followed that
up by asking, “So you’re the judge of who and what?” (2 RR 17). The trial
court replied, “You today, sir …” (2 RR 17). From this exchange, the trial
court concluded that the appellant was “not going to participate in his
trial.” (2 RR 17). The appellant was then taken to a holding cell. (2 RR
18). The appellant was brought back at the beginning of voir dire but
was eventually removed from the courtroom again after causing
numerous disruptions. (2 RR 52).6
At some point that day, the trial court entered a written order
denying the appellant’s request to represent himself. (CR 109). The trial
court made the following handwritten notation:
6 When the guilt phase of the trial started the next day, the appellant resumed his
sovereign-citizen talking points (e.g., when the trial court asked whether he pled
guilty or not guilty, the appellant replied, “Judge, there’s the issue of subject matter
jurisdiction.”), so the trial court had him removed from the courtroom before the
jury was brought out. (3 RR 5-9). Later, the appellant was able to disrupt the trial by
shouting from the holding cell, which prompted the trial court to have him removed
to a different holding cell. (3 RR 28-31).
14
[Defendant] is confrontational, obstructive and chooses to
assert issues not relevant to this case. He insists on using
the name “Paramount Security Interest Holder in all party
Properties.” He insists he is a sovereign state and not subject
to any laws of this Country and the state has not filed a UCC
lien — utter nonsense. No understanding of rules of
evidence / relevancy [illegible].
(CR 109).
II. Legal Background: The right to self-representation can be
denied if a defendant is disruptive or is not competent to
represent himself.
A. The right and its limits
The Sixth and Fourteenth Amendments to the federal constitution
give criminal defendants in state court a right to represent themselves at
trial. Faretta v. California, 422 U.S. 806, 807 (1975). However, there are
two limitations on this right that are relevant to this case.
First, because a defendant who represents himself gives up “many
of the traditional benefits associated with the right to counsel” (such as
the right to effective assistance of counsel), a defendant’s decision to
represent himself must be made “knowingly and intelligently.” Id. at 835.
While the case law does not require “formalistic questioning” of the
defendant by the trial court, for a defendant to represent himself the
record must establish that “he knows what he is doing and his choice is
15
made with open eyes.” Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim.
App. 1988) (plurality op.); see Goffney v. State, 843 S.W.2d 583, 585 (Tex.
Crim. App. 1992).
In Indiana v. Edwards, 554 U.S. 164 (2008), the Supreme Court
addressed the question of what level of competence was required for a
defendant to intelligently and knowingly waive his right to counsel and
represent himself. The state trial court in Edwards had found that the
defendant was competent to stand trial, but not competent enough to
represent himself. Edwards, 554 U.S. 167. The state appellate courts
reversed the conviction, holding that the level of competence to
represent oneself was no higher than the level required to stand trial. Id.
at 169.
The Supreme Court reversed that decision. It noted that the test
for competence to stand trial involves asking whether the defendant can
assist counsel, which is a significantly different level of competence than
being able to be one’s own counsel.7 Id. at 174-75. Ultimately, the court
7 In his brief, the appellant points out that the level of competence required for
waiving the right to counsel is the same, minimal requirement as the level of
competence to stand trial. (Appellant’s Brief at 23-24); see Godinez v. Moran, 509 U.S.
389, 399 (1993). However, the Supreme Court in Edwards distinguished Godinez,
noting that its holding related only to the level of competence required to waive the
right to counsel when entering a plea of guilty. Edwards, 554 U.S. at 173. While the
appellant’s statement of the law here is technically accurate, it is off point. The
16
concluded that, while not required to do so by the Constitution, a state
court could apply a higher standard of competence for self-
representation than is required to stand trial. Id. at 177-78. That is, if a
defendant is competent to stand trial but the trial court found that his
level of competence was low enough that allowing him to represent
himself would turn the trial into a farce, a state trial court could force
the defendant to be represented by counsel. Id. at 175-77.
The second relevant limitation on the right to self-representation
is that it cannot be used “to abuse the dignity of the courtroom.” Faretta,
422 U.S. at 835 n.46. While the State can find no Texas cases upholding a
trial court’s decision to deny self-representation based on disruptive
courtroom behavior, 8 federal courts and courts in others states have
held that a trial court may force counsel upon disruptive pro se
defendants. See United States v. Brock, 159 F.3d 1077, 1080 (7th Cir.
appellant sought not only to waive the right to counsel, he sought to conduct a trial
while acting as his own counsel. It is his competence to do the latter that is at issue.
8Texas courts have not disputed that this is a viable basis for denying the right of
self-representation, but in the particular circumstances of the cases that have been
appealed, appellate courts have held that trial courts’ decisions on this basis were
not supported by the record. See, e.g., Birdwell v. State, 10 S.W.3d 74, 78 (Tex. App.—
Houston [14th Dist.] 1999, pet. ref’d); Ex parte Winton, 837 S.W.2d 134, 135 (Tex.
Crim. App. 1992); Colon v. State, 717 S.W.2d 474, 475 (Tex. App.—San Antonio 1986,
no pet.).
17
1998) (defendant effectively waived right to self-representation through
disruptive, non-cooperative behavior); United States v. Long, 597 F.3d
720, 729 (5th Cir. 2010) (disruptive behavior combined with vacillating
response to judicial questioning constituted waiver of right to self-
representation);9 United States v. Brunson, 482 Fed. Appx. 811, 818 (4th
Cir. 2012) (upholding trial court’s decision to appoint counsel for
previously pro se defendants after defendants “had filed numerous
nonsensical pro se motions” and asserted such arguments at hearings);
see also Hummel v. Com., 306 S.W.3d 48, 53 (Ky. 2010) (stating “the rule
in other jurisdictions is that a request for self-representation may be
properly denied if the defendant is unable or unwilling to act with
decorum in court as he conducts his own defense and instead seeks only
to disrupt or delay proceedings,” and collecting sources).
The most on-point case is United States v. Mosley, 607 F.3d 555
(8th Cir. 2010). Mosley was charged with being a felon in possession of a
firearm and the trial court originally allowed him to represent himself.
9 Of note, Long displayed certain indicia of being a sovereign-citizen litigant. When
the trial court asked Long whether he wanted to represent himself, Long replied:
“For the record, Your Honor, your offer of contract is accepted for value and returned
with consideration for discharge, settlement, and closure.” Long, 497 F.3d at 723; see
Meads, 2012 ABQB 571 at para 223, 249 (identifying similar phrases as being strong
indication of a sovereign-citizen litigant).
18
Mosley, 607 F.3d at 557. Mosley filed a pre-trial motion and made
courtroom statements indicative of being a sovereign-citizen litigant.
Ibid. (“I am a live and living, flesh and blood breathing man, who is a
secured party who is sovereign. I am not a corporation.”). 10 At one
hearing Mosley “read from a prepared statement making claims that
were unrelated to his case.” Ibid. At other hearings, when the trial court
would attempt to engage him about self-representation Mosely was
“completely unresponsive to the Court.” Id. at 558. Sometime during this
process the trial court appointed counsel for Mosley, who continued
representing him through trial over Moseley’s objection. Ibid. 11
On appeal, Mosley’s only complaint was the denial of his right to
self-representation. The Eighth Circuit held that Mosley, through his
“obstreperous conduct” had forfeited his right to proceed pro se. Id. at
559. The appellate court noted that the trial court’s decision to
terminate Mosley’s self-representation was based on its belief that
10See Meads, 2012 ABQB 571 at para 221 (stating that documents filed by
sovereign-citizen litigants “frequently refer to the litigant as having a particular
status or characteristic,” and listing several possibilities, including “a ‘flesh and
blood man’” and that “the litigant is a person or a natural person, but not a
corporation,” or that “the litigant is … [a] ‘secured party.’”).
11 Like the appellant, Mosley continued being disruptive during jury selection and
trial, at one point interrupting trial to advise the court that the name on the
indictment was not his name but that of a corporation. Mosley, 607 F.3d at 559.
19
either Mosley did not understand the proceedings or that he was not
willing to participate in them. Id. at 559. This belief, the trial court noted,
was based on Mosley’s refusal to answer questions and participate in
proceedings. Ibid. Because this was well supported by the record, the
trial court did not err. Ibid.
B. Standard of review
A ruling on a defendant’s motion for self-representation is a mixed
question of law and fact that turns on an evaluation of credibility and
demeanor. Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App.
2010). As such, the trial court’s ruling is reviewed for an abuse of
discretion. Ibid. On review, appellate courts afford almost total deference
to the trial court when the resolution turns on an evaluation of
credibility and demeanor. Ibid. An appellate court is to view the
evidence in the light most favorable to the trial court’s ruling. Ibid. If the
trial court failed to make necessary findings, appellate courts are to
imply any findings that are supported by the evidence and necessary to
support the trial court’s ruling. Ibid
If a trial court abuses its discretion in denying a motion for self-
representation, the error is not subject to harm analysis and requires
20
reversal. Alford v. State, 367 S.W.3d 855, 865 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d).
III. Argument: This Court could affirm the trial court’s ruling
either on the basis that the appellant did not understand
the proceedings well enough to represent himself or on the
basis that the appellant was using his right to self-
representation to obstruct trial proceedings. This Court
should affirm on the second basis.
The record in this case could support findings that the appellant
did not understand the charges against, and that he was using his right
to self-representation to disrupt the trial. In Mosely, the Eighth Circuit
responded to a sovereign-citizen litigant by affirming the trial court’s
ruling on both grounds. Mosley, 607 F.3d at 559.
However, that sort of holding does not get at the core of what
occurred in this case. To the degree that the appellant gave vacillating
answers as to whether he understood the proceedings, he did so as part
of his general effort to disrupt and disrespect the proceedings. A finding
that a defendant is competent to stand trial but incompetent to
represent himself at trial, as the courts made in Edwards and Chadwick,
should be reserved for cases in which there is solid evidence of an actual
mental disorder. The appellant had no mental disorder. (See CR 24-
21
29).12 He was using the right of self-representation to abuse the system.
He was not insane, he was obstreperous. This Court should not dignify
the appellant’s conduct by attributing it to a legitimate cause. Instead,
this Court should affirm the trial court’s explicit finding that the
appellant was being “obstructive” and therefore waived his right to self-
representation.
A. Evidence that the appellant did not understand the
proceedings
The appellant vacillated in his answers to the trial court’s
questioning, sometimes indicating that he understood the proceedings
and what self-representation entailed (see 2 RR 9), sometimes
indicating that he had no understanding whatsoever of what was
occurring (see 2 RR 6 (did not understand charges), 7 (did not
understand being held to same standard as attorney), 11 (seemed to
believe there was a “three step administration process” to resolve
charges, then seemed not to know that prosecutor was trying the case
against him), 12-13 (repeatedly disavowed knowing of charges against
12From the appellant’s competency examination: “Findings on this competency
examination indicated that the [appellant] exhibited rational thought and
calm/cooperative demeanor with the capacity to communicate in a reasonable and
rational manner.” (CR 28).
22
him)), and sometimes he answered the trial court with nonsense (see,
e.g., 4-5).
At one point, the trial court found that the appellant “ha[d] no
perception of what he’s doing down here.” (2 RR 7). Later in the hearing,
the final straw for the trial court was when the appellant repeatedly
stated that he did not understand what he was charged with. (2 RR 12-
13). Whether the appellant was being sincere in his claims of ignorance
or whether he was using false claims of ignorance to be obstructive, the
record supports the trial court’s explicit and implicit findings that the
appellant did not understand the nature of the charges against him.
In abuse-of-discretion review, this Court defers to a trial court’s
findings if there is conflicting evidence on the matter, particularly where
those findings are based on credibility and demeanor. Chadwick, 309
S.W.3d at 561. While the appellant provided a couple of answers
indicating that he understood the nature of the proceedings, the bulk of
his answers (and his bizarre pre-trial filings) indicated, as the trial court
found, a complete lack of perception of what was going on. Accordingly,
this Court could affirm the trial court on the basis that the appellant did
not have sufficient understanding of the proceedings to conduct a trial.
23
B. Evidence that the appellant was attempting to use
his right to self-representation to obstruct the
proceedings
The appellant’s interactions with the trial court during the Faretta
hearing consisted largely of inappropriate answers to simple questions.
After the Faretta hearing, the appellant’s conduct became even more
disruptive, indicating that the trial court was correct in its belief that the
appellant’s aim was to disrupt the proceedings. (See 3 RR 6 (when asked
to plead guilty or not guilty, appellant brought up “the issue of subject
matter jurisdiction”), 8-9 (when presented with last-minute plea offer,
appellant responded by requesting trial court refer to him as “Marcus”
instead of “Mr. Lewis,” and then questioned whether “anyone in this
courtroom … can present me with an original charging instrument or a
claim against me”)).
In his brief, the appellant asserts that at the Faretta hearing he
“was cooperative and answered all of the trial court’s questions.…”
(Appellant’s Brief at 34). The appellant further asserts that “[t]here is no
evidence in the record to suggest that [his] behavior was a deliberate
attempt to obstruct the trial court proceedings.” The State respectfully
disagrees with these characterizations, as did the trial court. Based on
the appellant’s courtroom demeanor, the trial court found that the
24
appellant was “confrontational” and “obstructive.” (CR 109). Considering
the nature of the answers the appellant provided, along with his bizarre
pre-trial filing (see CR 71-99 (lengthy handwritten documents, the gist
of which is that the prosecutor’s failure to respond to appellant’s claims
with sworn affidavit would constitute “default” and acceptance of
appellant’s claims)), the trial court was well within its discretion to
conclude, based on the appellant’s demeanor, that the appellant
intended to use his right to self-representation to obstruct the
proceedings. See Mosley, 607 F.3d at 558-59. Therefore, this Court
should reject the appellant’s first point.
Reply to Point Two
The appellant’s use of sovereign-citizen tactics does not raise a
bona fide doubt about his mental competence to stand trial.
In his second point of error, the appellant argues that his
disruptive sovereign-citizen tactics were bizarre enough that they
should have prompted the trial court to make inquiry into his
competence to stand trial. The appellant is arguing that if he did not
have an understanding of the proceedings against him to allow him to
represent himself, then he may not have had a sufficient understanding
25
of the proceedings to go to trial. This point illustrates why it is
important that this Court address the appellant’s first point by affirming
the trial court’s finding that the appellant was too disruptive to
represent himself.
I. Legal Background: Absent a request from a party, a trial
court’s decision not to hold a competency inquiry is an
abuse of discretion only if, as a matter of law, the evidence
created a “bona fide doubt” regarding a defendant’s
competence to stand trial.
A defendant is not competent to stand trial if he does not have
sufficient present ability to consult with his attorney with a reasonable
degree of rational understanding, or if he does not have a rational and
factual understanding of the proceedings against him. TEX. CODE CRIM.
PROC. art. 46B.003(a). Either party may suggest, or the trial court may
suggest on its own motion, that the defendant may be incompetent to
stand trial. TEX. CODE CRIM. PROC. art. 46B.004(a) . If evidence suggesting
that the defendant may be incompetent to stand trial comes to the
attention of the trial court, the court must suggest that the defendant
may be incompetent. Id. at 46B.004(b). Upon such a suggestion, the trial
court must determine by informal inquiry whether there is some
evidence that would support a finding that the defendant may be
26
incompetent. Id. at 46B.004(c). If there is such evidence, the trial court
must stay the proceedings in order to have the defendant examined. TEX.
CODE CRIM. PROC. art. 46B.005(a).
If a trial court does not conduct a competency inquiry but, on
appeal, a defendant suggests that one was appropriate, an appellate
court reviews the trial court’s actions (or lack thereof) for an abuse of
discretion. Salahud-din v. State, 206 S.W.3d 203, 207 (Tex. App.—Corpus
Christi 2006, pet. ref’d). “Evidence sufficient to prompt a competency
hearing or inquiry must raise a ‘bona fide doubt’ in the mind of the trial
judge as to the defendant’s competency to stand trial; a bona fide doubt
exists if the evidence indicates recent severe mental illness, or at least
moderate mental retardation, or truly bizarre acts by the defendant.” Id.
at 208 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App.
1997)).
However, bizarre, obscene, or disruptive comments by a defendant
during court proceedings do not necessarily constitute evidence
supporting a finding of incompetency. Johnson v. State, 429 S.W.3d 13, 18
(Tex. App.—Houston [14th Dist.] 2013, no pet.). “If such actions were
[necessarily] probative of incompetence, one could effectively avoid
27
criminal justice through immature behavior.” Moore v. State, 999 S.W.2d
385, 395 (Tex. Crim. App. 1999).
A defendant’s obstinate refusal to work with his trial counsel is
not evidence that he is incompetent to stand trial. Turner v. State, 422
S.W.3d 676, 691 (Tex. Crim. App. 2013). Such obstinateness is only
indicative of a lack of competence if there is evidence showing that it is
the result of a mental illness.
II. Argument: The only evidence of incompetence the
appellant points to are his sovereign-citizen tactics, but
those are evidence of obstinateness, not incompetence.
Very early in the proceedings, defense counsel presented the trial
court with a suggestion that the appellant was incompetent, and that,
specifically, “he does not recall why he is in custody.” (CR 21). The court
ordered a psychological evaluation, and the psychologist found that the
appellant understood the proceedings, understood why he was in jail,
and was capable of assisting his counsel. (CR 24-29). Nothing in the
record suggests that anyone questioned the appellant’s competency at
any other point in the proceedings.
On appeal, the appellant points to his bizarre pre-trial filings and
courtroom discourse as evidence that he was incompetent to stand trial.
28
(Appellant’s Brief at 38-41). But the appellant’s sovereign-citizen tactics
were not the result of mental illness, they were plainly the result a
conscious plan to disrupt his trial. As Meads makes clear, sovereign-
citizen tactics are not the result of insane individuals making delusional
filings, they are the result of programs that are sold and marketed by
gurus to individuals who believe they can use certain tactics skirt their
legal obligations to society. Meads, 2012 ABQB 571 at paras 81-86
(discussing how sovereign citizen tactics “appear to be developed in
social groups”). Indeed, as bizarre as the appellant’s pre-trial filings
might seem, the State’s appellant counsel was able to find a template for
one these filings with a simple google search. Compare CR 40-44 to
CRACKING THE CODE, 310-14 (3rd ed. 2002) (free preview available from
Google at https://goo.gl/5rW6zo).13
In his brief, the appellant points to the trial court’s determination
that his understanding of procedure was not sufficient to allow him to
represent himself. (Appellant’s Brief at 40-41). At the end of the Faretta
13This book, which seems to be by an anonymous author, states that its purpose is to
help people avoid ordinary legal obligations. The preface of the book describes its
purpose as “showing anyone how to successfully withstand and nullify unsolicited
demands for payment/performance from attorneys, banks, judges, clerks of court,
police, taxmen, and government agents (and anyone else who would casually and
unjustly damage one’s life) and cease being muscled into ‘doing business’ with such
parties against his will.” CRACKING THE CODE, xix.
29
hearing, the trial court found that the appellant “showed a lack of
understanding of what he’s charged with and procedures of the Court.”
(2 RR 13). The trial court continued: “I don’t think for a second that he
can represent himself.…” (2 RR 13).
This finding by the trial court, by its terms, related to the
appellant’s ability to represent himself as counsel, not his competence to
stand trial. See Indiana v. Edwards, 554 U.S. 164, 173, 176-78 (2008)
(noting distinction between those two types of competence). As the
holding in Edwards makes clear, a defendant can be competent to stand
trial but not competent to represent himself as counsel. Id. at 177-79;
see Chadwick 309 S.W.3d at 563 (affirming court of appeals’s conclusion
that trial court did not abuse discretion in finding defendant was
competent to stand trial but incompetent to represent himself). The
trial court in this case observed the appellant’s demeanor in the
courtroom and came to the conclusion that it was only his competence
to represent himself that was at issue.
The appellant was not incompetent to stand trial, he merely
subscribed to some peculiar pseudolegal theories and sought to put
those theories into action. Allowing a competent defendant with no
mental illness to grant himself the protections afforded to the
30
legitimately incompetent by consciously adopting a disruptive trial
strategy would make an utter mockery of the system. The appellant’s
conduct was an effort to “avoid criminal justice through immature
behavior.” See Moore, 995 S.W.2d at 395. This Court should thwart that
effort by denying the appellant’s second point.
Reply to Point Three
The appellant’s point is based on a factual mistake. On the date the
appellant was stopped, the offense of improper display of a license
plate was punishable by a fine of between $5 and $200, thus
counsel was not ineffective for failing to file a motion to suppress
based on the fact that improper display of a license plate was not a
criminal offense.
The appellant’s third point is quite long, but it can be addressed
quite briefly because it is based on a factual mistake. In his third point,
the appellant argues that his trial counsel was ineffective because trial
counsel did not file a motion to suppress the evidence in this case. The
appellant asserts that the police stop that led to his arrest was illegal
because at that time there was no statutory penalty attached to the
failure to properly display a license plate, meaning that it was not a
criminal offense for which an officer could lawfully stop a vehicle. (See
Appellant’s Brief at 44-60). The State does not substantially disagree
31
with most of the appellant’s legal points, and were it not for a factual
error his argument might well have merit.
However, at the time of the stop the legislature had assigned a
penalty to the failure to properly display license plates, meaning that it
was a criminal offense and the officers’ stop of the appellant was lawful.
In 2013, apparently realizing that the prior legislature had accidentally
repealed the penalty for failure to properly display license plates, the
83rd Legislature enacted Transportation Code § 504.948, which
establishes that the penalty for violating any provision of Chapter 504
for which no other penalty is specified is a fine of between $5 and $200.
TEX. TRANSP. CODE § 504.948 (West Supp. 2014). The enacting legislation
made this provision effective immediately upon approval of the
legislation, which occurred on June 14, 2013. Act of June 14, 2013, 83rd
Leg. R.S., ch. 1135 §§ 84, 144, 2013 Tex. Sess. Law Serv. 2708, 2724,
2739-40. The stop in this case occurred on August 15, 2013. (3 RR 17).
The proper display of license plates is a requirement imposed in
Chapter 504 of the Transportation Code. See TEX. TRANSP. CODE §
504.943. Therefore, Section 504.948 applied to it. Trial counsel was not
ineffective for not raising this matter in a motion to suppress, thus this
Court should reject the appellant’s third point.
32
Reply to Point Four
The trial court did not err in refusing to hold a hearing on the
appellant’s motion for new trial. The motion alleged that counsel
was ineffective for failure to investigate the case and call witnesses,
but the only uncalled witness mentioned in the motion was the
appellant’s mother, and her affidavit that she would say “good
things” about the appellant was conclusory.
The appellant filed a timely motion for new trial alleging that trial
counsel was ineffective for failing to investigate the case and call
witnesses in the punishment phase. (CR 149-160). The motion was
presented to the trial court, but the trial court denied the appellant’s
request for a hearing on the motion. (CR 163). In his fourth point of
error, the appellant claims that this was error. (Appellant’s Brief at 61-
64).
The denial of a defendant’s request for hearing on a motion for
new trial is reviewed for an abuse of discretion. Smith v. State, 286
S.W.3d 333, 339 (Tex. Crim. App. 2009). A defendant is entitled to a
hearing on his motion for new trial so long as his motion asserts, and
properly supports, reasonable grounds for relief that are not
determinable from the record. Jordan v. State, 883 S.W.2d 664, 665 (Tex.
Crim. App. 1994). Appellate review of a trial court’s decision to deny a
hearing on a motion for new trial is limited to the trial court’s
33
determination of whether the defendant raised grounds that (1) are
undeterminable from the record and (2) could entitle the defendant to
relief. Smith, 286 S.W.3d at 340.
To prevail on a motion for new trial based on a claim of ineffective
assistance, a defendant must show that his trial counsel’s performance
was deficient, and that this deficiency prejudiced the defendant. Ibid.
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
prejudice, a defendant must show that there is “a reasonable probability
that, but for his counsel’s unprofessional errors, the result of the
proceeding would have been different.” Ibid. (quoting Strickland, 446 U.S
at 694). To be entitled to a hearing on motion for new trial that is based
on a claim of ineffective assistance, a defendant must allege sufficient
facts from which the trial court could reasonably conclude that the
defendant could meet both parts of the Strickland test. Id. at 341.
Affidavits that are conclusory in nature and unsupported by facts are
not sufficient to put the trial court on notice that reasonable grounds for
relief exist. Buerger v. State, 60 S.W.3d 358, 362 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d); see Jordan v. State, 883 S.W.2d 664, 665
(Tex. Crim. App. 1994).
34
Regarding the claim that counsel was ineffective for failing to
conduct an investigation, the appellant produced no evidence at the
motion for new trial or on appeal regarding what an effective
investigation would have uncovered. Thus the appellant failed to make
the required showing that this was a viable basis for a new trial, and the
trial court did not abuse its discretion in not holding a hearing on this
ground. See Washington v. State, 417 S.W.3d 713, 725 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d).
Regarding the allegation that trial counsel was ineffective for
failing to call a witness, the only witness identified in the appellant’s
filings is his mother. Attached to the motion was an affidavit from the
appellant’s mother stating that she was available to testify, and if called
she “would have told the jury good things about [the appellant].” (CR
173). The affidavit does not state what “good things” the appellant’s
mother would have testified about, thus it is a conclusory affidavit that
did not apprise the trial court of a basis to believe the appellant could
meet the Strickland standard. See Buerger, 60 S.W.3d at 363 (trial court
did not err in denying hearing on motion for new trial that was
supported only be conclusory affidavit). This Court should reject the
35
appellant’s fourth point because he failed to submit sufficient affidavit
evidence to justify a hearing on his motion for new trial.
Reply to Point Five
The question of fact that the appellant points out in his brief was
not material to the determination of probable cause to search the
appellant’s car, thus the trial court did not err in refusing to give
the jury a 38.23 instruction.
At trial, both of the officers testified that they observed the
appellant and his passenger make furtive movements after the officers
activated their emergency lights to initiate a traffic stop. (3 RR 21-22,
73). Officer Solis characterized the furtive movements in terms of the
driver making movements toward the door and center console, and the
passenger making movements toward the glove compartment. (3 RR 22,
56). Officer Diaz characterized the movements by noting that he saw
“[b]oth heads in the vehicle … started kind of ducking to the side,
leaning forward …” (3 RR 73). On cross examination, Diaz said that he
did not see either the driver or passenger “do anything” because during
the pursuit he could only see them “from the shoulders up.” (3 RR 93).
In his fifth point of error, the appellant asserts that there is a
“direct conflict between the two officers’ testimony” and that this
36
conflict justified submitting to the jury an instruction on illegally
obtained evidence. (Appellant’s Brief at 65-72).
I. This argument was not presented to the trial court
At trial, the appellant requested that the jury be charged on
illegally obtained evidence, though it was on an entirely different basis:
Trial counsel requested the instruction because he did not believe there
was probable cause for the search at all. (4 RR 5-11). At one point, the
trial court treated trial counsel’s request as a motion to suppress. (4 RR
10 (“I am not going to suppress the discovery of the substance in this
case)). 14 At no point did trial counsel point out any question of fact to
the trial court. Thus, the charge error that the appellant is alleging on
appeal should be reviewed only for “egregious harm” under Almanza v.
State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Madden v. State, 242
S.W.3d 504, 513 (Tex. Crim. App. 2007) (where 38.23 instruction is
requested on one basis in trial court but appellate argument alleges
different basis for 38.23 instruction, Almanza’s “egregious harm”
standard applies).
14Defense counsel had made a motion to suppress earlier, but the trial court advised
that he would carry the motion until the end of the State’s case. (3 RR 77).
37
II. The minor discrepancy in the testimony was immaterial to
the legality of the appellant’s detention or the search of the
car.
Not every question of fact requires the trial court to instruct the
jury on illegally obtained evidence. To obtain a jury instruction under
Article 38.23(a), the disputed fact must be one that affects the
determination of the legal issue. Madden, 242 S.W.3d at 517.
In this case, the differences between the officers’ testimony that
the appellant points to is extremely marginal. Both officers testified that
they saw both occupants moving around in a manner that caused them
to believe the occupants may have been hiding something. (3 RR 21-22,
3 RR 73-76). The only difference is that one officer believed that he
could tell that the passenger was reaching into the glove compartment,
but the other officer did not have that belief and characterized the
movements more generally.
But probable cause to search the car did not hinge on whether the
passenger reached into the glove compartment (as Solis said) or
whether the passenger was making generalized furtive movements and
“leaning forward” (as Diaz said). (3 RR 79). At the time that Diaz
searched the car, he had several clues that there was contraband inside:
38
• After officers tried to initiate a traffic stop, the driver continued
driving for about 1/5 of a mile as both occupants made furtive
movements as though to hide something. (3 RR 73).
• Once the car was stopped, the passenger was found with what
appeared to be crack cocaine on his lap. (3 RR 25).
• The appellant, the driver, became agitated when asked to produce
identification. (3 RR 74-75).
• When asked to step out of the car, the appellant made a “quick
movement” toward the center console. (3 RR 75).
These factor gave Diaz probable cause to believe that there was
additional contraband in the vehicle, thus the search was lawful. See
Cunningham v. State, 11 S.W.3d 436, 440 (Tex. App.—Houston [14th
Dist.] 2000, no pet.) (where officer observed driver make furtive
gestures when officer initiated traffic stop, and then officer observed
marihuana residue in car, officer had probable cause to search for
additional contraband). Whether the passenger reached into the glove
compartment was immaterial, thus the trial court was correct not to
instruct the jury on Article 38.23. This Court should overrule the
appellant’s fifth point.
39
Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24071454
40
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 8,541 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Jani Maselli Wood
jani.maselli@pdo.hctx.net
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
Date: August 5, 2015
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