Chuck Allen Little v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00086-CR
CHUCK ALLEN LITTLE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Chuck Allen Little appeals his convictions for kidnapping and
burglary of a habitation. In four issues, Little argues that the trial court abused its
discretion by not empanelling a jury to determine his competency to stand trial;
that the trial court committed reversible error by ordering expert evaluation
regarding his competency to stand trial without being afforded his right to
1
See Tex. R. App. P. 47.4.
counsel; that his appointed trial counsel failed to request a hearing regarding his
desire for self-representation; and that the trial court erred by denying his request
for hybrid representation. We will affirm.
II. BACKGROUND
Upset that his girlfriend had ended their relationship, Little held a knife to
her and threatened to kill her if she did not accompany him from Parker County
to either Oklahoma or Mexico. The girlfriend temporarily escaped the house they
were in, and a neighbor called the police and reported that Little had dragged her
back into the house. Little released her to police when they arrived but escaped
out the back and was later apprehended.
The State indicted Little for kidnapping and assault on May 5, 2011. For
reasons that are not apparent from the record, on June 1, 2011, the trial court
ordered that Little undergo an expert evaluation to determine whether he was
competent to stand trial. Over the next six weeks, Little filed numerous pro se
documents, including affidavits of indigency, letters to the trial court expressing
his desire to represent himself, and motions to dismiss the charges against him.
Some of the motions that Little filed in the trial court include a request for legal
supplies, a request for funds to retain a legal assistant, and a motion requesting
that the State pay for a private investigator.
On July 15, 2011, Dr. Peter Oropeza conducted a competency evaluation
and determined that Little was competent to stand trial. Four days later, the trial
court appointed Matt McConahay to serve as Little‘s trial counsel. Despite the
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appointment of trial counsel, Little continued to send the trial court numerous
motions and demands. One of the documents is a letter in which Little
expressed his desire to fire McConahay. On December 1 and on December 5,
2011, the clerk‘s record reflects that the trial court again ordered that Little be
examined by an expert to determine whether he was competent to stand trial.
On December 8, 2011, the trial court ―unilaterally‖ held a hearing ―to cover
pretrial matters.‖ At the December 8 hearing, Little requested that he be allowed
―a hybrid counsel to help assist [him]‖ but added that he ―would like to maintain
control of the case.‖ Little specifically said that he did not want the assistance of
appointed counsel McConahay. The trial court denied Little‘s request for hybrid
counsel. After further discussion, the trial court gave Little the choice between
allowing McConahay to continue as appointed counsel, allowing McConahay to
serve as standby counsel, or allowing Little to represent himself without the aid of
counsel at all. Little stated that he desired ―standby counsel.‖ After admonishing
Little regarding the possible perils of self-representation, the trial court granted
Little‘s request for self-representation with standby counsel. On December 12,
2011, the trial court, finding Little competent to stand trial, ordered that the
previous orders for additional expert evaluations be set aside. Specifically, the
trial court stated that after ―having examined [Little] in open court and after having
received [Little‘s] writings . . . there [was] not a current issue as to [Little‘s]
competency to stand trial.‖ The trial court further stated that it had considered a
previous determination of competency to stand trial in making this finding. The
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next day, the trial court again held a hearing in which the trial court delivered to
Little its order setting aside the previous orders for an additional competency
evaluation and its findings regarding Little‘s competency to stand trial. Little,
accompanied by standby counsel, did not object. On December 19, 2011, the
State filed a superseding indictment adding the charge of burglary of a habitation.
A jury found Little guilty of kidnapping and burglary of a habitation and
assessed punishment at ninety-nine years‘ incarceration for kidnapping and fifty
years‘ incarceration for burglary of a habitation with the sentences to run
concurrently. Standby counsel filed a motion for new trial and arrest of judgment,
which the trial court overruled. After Little filed an affidavit of indigency seeking
appointed appellate counsel, the trial court appointed appellate counsel. This
appeal followed.
III. DISCUSSION
A. Little’s Competency to Stand Trial
In part of his first issue, Little contends that the trial court abused its
discretion ―when it found [him] competent to stand trial.‖ Specifically, Little
argues that the trial court erred by not assembling a jury to determine whether he
was competent to stand trial. He argues that the trial court should have
conducted a jury trial on the issue because evidence raised a bona fide doubt
that he was not competent. In his argument, Little also suggests that ―at the very
minimum, a hearing should have been held‖ to assess his competency. We
conclude that the trial court did conduct an informal inquiry under the proper
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statutory scheme and that the trial court did not abuse its discretion by declaring
Little competent to stand trial.
The conviction of an accused person while he is legally incompetent to
stand trial violates due process. See McDaniel v. State, 98 S.W.3d 704, 709
(Tex. Crim. App. 2003). A defendant is incompetent to stand trial if he does not
have a ―(1) sufficient present ability to consult with [his] lawyer with a reasonable
degree of rational understanding; or (2) a rational as well as factual
understanding of the proceedings against [him].‖ Tex. Code Crim. Proc. Ann. art.
46B.003(a) (West 2006). A defendant is presumed to be competent to stand
trial, and incompetence must be established by a preponderance of the
evidence. Id. art. 46B.003(b).
The standard of review is whether the trial court abused its discretion by
failing to empanel a jury for the purpose of conducting a competency hearing.
Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999), cert. denied, 530
U.S. 1216 (2000); Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.—Fort
Worth 2005, pet. ref‘d). We do not substitute our own judgment for that of the
trial court; rather, we consider the totality of the facts surrounding the trial court‘s
decision to determine whether the trial court acted arbitrarily or unreasonably.
Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009); see also Gray v.
State, 257 S.W.3d 825, 828–29 (Tex. App.—Texarkana 2008, pet. ref‘d).
When there is evidence that is sufficient to raise a bona fide doubt as to a
defendant‘s competency, a trial court shall first conduct an informal inquiry to
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ascertain whether there is evidence that would support a finding of
incompetence. Tex. Code Crim. Proc. Ann. art. 46B.004(c) (West Supp. 2012);
Montoya, 291 S.W.3d at 425.
If an informal inquiry shows that evidence exists that would support a
finding of incompetence, the trial court shall then order an examination to
determine whether the defendant is incompetent to stand trial. Tex. Code Crim.
Proc. Ann. art. 46B.005(a) (West 2006). Only after such an examination need
the trial court conduct a formal hearing on the issue if the trial court still has a
bona fide doubt about the defendant‘s competency. See Montoya, 291 S.W.3d
at 424–25; Moore, 999 S.W.2d at 393. And the formal hearing need not be
conducted before a jury unless a party requests it or the trial court determines on
its own motion to conduct the hearing before a jury. Tex. Code Crim. Proc. Ann.
art. 46B.051 (West 2006).
Neither party in this case requested a jury trial on the issue of competency.
And to the extent that Little claims the trial court erred by not conducting an
informal inquiry to ascertain whether he was competent to stand trial, that part of
his claim is overruled. See id. The trial court did conduct an informal inquiry into
Little‘s competency. The trial court ordered that Little be examined by a medical
examiner, who assessed Little as competent to stand trial. The trial court
furthered its informal inquiry by questioning Little at multiple pretrial hearings.
After making this informal inquiry, the trial court specifically found that there was
not an ―issue as to [Little‘s] competency to stand trial‖ and that Little ―exhibited
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considerable working knowledge of the court system, court procedure, the
charge[s] against him, as well as the consequences of a trial.‖ These findings
are supported by the record.
Little attacks these findings by arguing that he did not demonstrate
―exercised reason, sound judgment, or good sense‖ because he filed a ―flurry‖ of
motions after being indicted, including multiple assertions that he be allowed to
represent himself. Little also argues that there was evidence before the trial
court that he had experienced mental health issues in the past, that Little
believed his counsel and the trial court were conspiring to prevent him from
receiving a fair trial, and that the trial court demonstrated its own concern
regarding his competency by ordering multiple competency evaluations. But
Little points to nothing in the record that would compel this court to ignore the trial
court‘s firsthand factual assessment of his mental competency, a finding that this
court is bound to afford great deference to, or the trial court‘s reliance of an
expert‘s determination that he was competent to stand trial. See McDaniel, 98
S.W.3d at 712 (―Appellant's history of mental illness was insufficient to create a
bona fide doubt about his present mental condition, in light of the more recent
psychological evaluation attesting to his mental competency.‖); see also Smith v.
State, No. 02-11-00243-CR, 2012 WL 3600002, at *2–3 (Tex. App.—Fort Worth
Aug. 23, 2012, pet. ref‘d) (mem. op., not designated for publication) (holding that
trial court did not abuse its discretion by not impaneling a jury to determine
defendant‘s competency despite expert opinion that defendant was ―mildly
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mentally retarded,‖ defendant‘s belief that appointed attorney was ―working with‖
the State to deprive him of a fair trial, and multiple court-ordered competency
evaluations during which court observed and questioned defendant in pretrial
hearing regarding his dissatisfaction with appointed counsel). We overruled this
portion of Little‘s first issue.
B. Competency Evaluation Without Counsel
In the remainder of his first issue, Little argues that he was denied
assistance of counsel when the court ordered that he undergo a competency
evaluation without having been appointed counsel. The State concedes that
Little was denied counsel under the statute governing competency. See Tex.
Crim. Proc. Code Ann. art. 46B.006(a) (West 2006) (―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.‖). The State argues, however, that any error by the
trial court in not affording Little counsel for the competency evaluation was
harmless. We agree.
The denial of counsel implicates the Sixth Amendment, and violations of
the Sixth Amendment are subject to a harmless error analysis. See Hanson v.
State, 11 S.W.3d 285, 289 (Tex. App.—Houston [14th Dist.] 1999, pet. ref‘d); see
also Satterwhite v. Tex., 486 U.S. 249, 254, 108 S. Ct. 1792, 1796 (1988)
(holding that when the absence of counsel does not pervade the entire
proceeding, Sixth Amendment violations are subject to a harmless error
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analysis). ―If the appellate record in a criminal case reveals constitutional error
that is subject to harmless error review, the court of appeals must reverse a
judgment of conviction or punishment unless the court determines beyond a
reasonable doubt that the error did not contribute to the conviction or
punishment.‖ See Tex. R.. App. P. 44.2(a).
Here, as the State points out, ―nothing related to [the competency
evaluation] was used at trial.‖ We therefore conclude beyond a reasonable doubt
that the lack of counsel at Little‘s competency evaluation did not contribute to his
convictions or punishments. We overrule the remainder of Little‘s first issue.
C. Knowing and Intelligent Waiver of Counsel
In his second issue, Little argues that he could not have knowingly and
intelligently waived his right to counsel and that the trial court erred by allowing
him to exercise his right to self-representation.2 Little‘s argument seems to be
that because he expressed beliefs that his appointed attorney was working in
concert with the trial court and because he had demonstrated ―psychological
breaks‖ in the past, he lacked the capacity to voluntarily and knowingly waive his
right to counsel.
2
Little argued in his initial briefing to this court that the trial court had not
properly admonished him regarding self-representation, but in his reply brief,
Little concedes that the trial court admonished him; and the record supports that
the trial court admonished him both in writing and at a hearing regarding Little‘s
request that he be allowed to represent himself.
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In all criminal prosecutions in which an accused may be punished by
imprisonment, the accused has the right to assistance of counsel for his defense.
U.S. Const. amends. VI, XIV; Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp.
2012); see Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975);
Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997), cert. denied, 525
U.S. 829 (1998). In lieu of being represented by counsel, however, a defendant
also has a Sixth Amendment right to prosecute his own legal defense. Faretta,
422 U.S. at 818, 95 S. Ct. at 2532–533; see also Tex. Const. art I, § 10; Tex.
Code Crim. Proc. Ann. art. 1.05 (West 2005). For the decision to represent
oneself to be constitutionally effective, a defendant must make the decision
(1) competently, (2) knowingly and intelligently, and (3) voluntarily. Moore, 999
S.W.2d at 396. Little argues that he did not make his election of self-
representation knowingly and intelligently.
In his initial briefing, Little argued that the trial court had not properly
admonished him regarding his abandonment of the right to counsel and his
decision to proceed pro se. After reviewing his reply brief, Little has abandoned
this position and merely argues now that he did not possess the rational
capability to make a knowing and intelligent decision. Specifically, and citing the
Diagnostic and Statistical Manual of Mental Disorders, Little‘s appellate counsel
claims that she ―suspects‖ that Little meets the criteria for a person who displays
paranoid personality disorder; thus, according to Little‘s appointed counsel, Little
could not have knowingly and intelligently waived his right to counsel. We agree
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with the State that there is no evidence in the record that Little was suffering from
a mental illness at the time the trial court admonished him.
In this case, the trial court engaged in substantial interaction with Little
both before and after his ultimate decision to proceed pro se, providing the trial
court abundant information with which to take realistic account of Little‘s
competence to represent himself and providing this court with a thorough record
from which to review the trial court‘s determination. At multiple pretrial hearings,
Little displayed a working knowledge of the court system, including his
understanding of the differences between self-representation, hybrid
representation, and the appointment of standby counsel. He also demonstrated
that he is well-versed in the constitutional provisions and cases supporting his
desire to represent himself. The trial court admonished Little multiple times in
writing and through questioning in open court. In these admonishments, the trial
court explained to Little that he would be responsible for the presentation of
evidence, conducting witness examination and cross-examination, and ―all
procedural matters and evidentiary matters.‖ The trial court further implored that
ignorance of the law would not be an excuse with regard to the outcome of his
case. The trial court conveyed to Little: ―In 30 years of experience in the law, I
do not recall ever having seen a layperson, meaning a person who is not a
lawyer, be as familiar with the law, which includes the law of evidence and the
law of procedure, as well as even the youngest lawyer‖ and that without such
experience, the trial court was concerned that by representing himself, Little
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―increas[ed] the possibility of the [S]tate[‗s] being able to meet its burden on
everything that it asserts.‖ Following this exchange, the trial court asked again,
―Under those conditions, do you still maintain that you desire to represent
yourself in this case?‖ And Little responded, ―Yes, sir.‖ We hold that under these
circumstances, the trial court did not abuse its discretion by allowing Little to
represent himself while also appointing standby counsel. See Cudjo v. State,
345 S.W.3d 177, 184 (Tex. App.—Houston [14th Dist.] 2011, pet. ref‘d)
(―Appellant confirmed that he understood the dangers and disadvantages of self-
representation as the trial court explained them to him, and thus his waiver was
knowing and intelligent.‖). Thus, we overrule Little‘s second issue.
D. Appointed Counsel and Hearing on Little’s Self-Representation
In his third issue, Little argues that his appointed trial counsel was
―ineffective when he failed to assert a claim for a hearing to determine if [Little]
was making a voluntary, intelligent, and knowing waiver of counsel.‖ The gist of
Little‘s third issue is that his appointed trial counsel should have sought a hearing
―to ascertain whether [Little‘s] waiver of counsel was freely, knowingly, and
voluntarily waived.‖ Though not directly stated, Little appears to have abandoned
this position in his reply brief. In his reply brief and in relation to his first issue,
Little concedes that a hearing on his desire to proceed pro se did in fact occur.
Thus, we overrule Little‘s third issue.
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E. Little’s Request for Hybrid Representation
In his fourth issue, Little argues that the trial court abused its discretion by
denying Little‘s request for hybrid representation and by ultimately appointing his
previously appointed trial counsel as standby counsel. Specifically, Little argues
that because he did not trust his appointed trial counsel, it was an abuse of
discretion to appoint that same attorney as standby counsel. Further, Little
argues simply that he was entitled to hybrid representation. Both of these
positions within his fourth issue are also predicated on appellate counsel‘s initial
mistaken belief that a hearing had not been held regarding Little‘s desire for self-
representation. And in his reply brief, Little does not address whether he has
abandoned his fourth issue.
We conclude that the trial court did not abuse its discretion by appointing
Little‘s previously court-appointed trial counsel as standby counsel. First, the
record reveals that when the trial court presented Little with the options of
proceeding with appointed counsel, appointed counsel as standby counsel, or
proceeding with no assistance, Little specifically chose standby counsel with full
knowledge that standby counsel would be his court-appointed counsel.
Furthermore, a criminal defendant is not entitled to hybrid representation. See
Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Patrick v. State,
906 S.W.2d 481, 498 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996).
And a trial court can appoint standby counsel to assist a criminal defendant who
represents himself at trial, even over the defendant‘s objection. Sossamon v.
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State, 110 S.W.3d 57, 61 (Tex. App.—Waco 2002, pet. ref‘d). We overrule
Little‘s fourth issue.
F. Little’s Reply Brief
Little argues for the first time in his reply brief that the trial court abused its
discretion by denying his motion to suppress without holding a suppression
hearing and that he preserved this issue for our review by making a general
objection to the trial court during a pretrial hearing that he wanted to ―preserve all
these issues for appellate purposes.‖ We decline to address this newly raised
issue.
A reply brief is allowed only to address matters raised in the appellee‘s
brief. See Tex. R. App. P. 38.3; Barrios v. State, 27 S.W.3d 313, 322 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref‘d), cert. denied, 534 U.S. 1024 (2001);
Conrad v. State, 10 S.W.3d 43, 46 n.4 (Tex. App.—Texarkana 1999, pet. ref‘d).
This reply issue was not argued in Little‘s initial briefing, nor was it raised in the
State‘s brief. Therefore, this issue may not be argued for the first time in Little‘s
reply brief. See Barrios, 27 S.W.3d at 322. Furthermore, we are not persuaded
by Little‘s contention that he was unaware of the lack of a hearing transcript
regarding his motion to suppress until after he had filed his initial briefing and that
he first learned of the lack of a transcript after he had received a copy of the
State‘s request for supplementation of the record, which occurred after he filed
his initial brief. It is Little who bore the burden of presenting a record
demonstrating that the trial court‘s decision should be overturned. See Newman
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v. State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) (―We decide that appellant
has failed to present a record demonstrating that the trial court‘s decision should
be overturned.‖); see also Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim.
App. 2007) (―It was, however, appellant‘s burden to bring forward a record on
appeal sufficient to show that the trial court erred in his ruling on the motion to
suppress.‖); Word v. State, 206 S.W.3d 646, 651–52 (Tex. Crim. App. 2006) (―It
is usually the appealing party‘s burden to present a record showing properly
preserved, reversible error.‖) We decline to address Little‘s issue that he brings
for the first time in his reply brief.
IV. CONCLUSION
Having overruled all of Little‘s issues and having declined to address his
newly raised issue from his reply brief, we affirm the trial court‘s judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 10, 2013
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