Bailey, Paul Clarence v. State ( 2013 )

A FFIRNI; and Opinion Filed August 2, 2013.
In The
(court of Apprtk
*iftlj itrict of it Thit1a
No. 05-12-00634-CR
PAUL CLARENCE BAILEY
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81879-09
MEMORANDUM OPINION
Before Justices O’Neill. Francis. and Fillmore
Opinion by Justice O’Neill
A jury convicted appellant Paul Clarence Bailey of aggravated assault with a deadly
weapon. The trial court sentenced him to five years in prison. In his first issue, appellant argues
the trial court erred by denying his request for self-representation. In his second issue, he claims
the trial court abused its discretion by failing to hold an evidentiary hearing on his motion for
new trial. We affirm.
Because the background facts are known to the parties. we recite only those relevant to
disposition of this appeal. TEX. R. APP. P. 47.1.
Waiver of Right to Counsel
In his first issue, appellant argues the trial court erred by failing to determine whether he
knowingly, voluntarily, and intelligently waived his right to counsel before denying his request
for self-representation. The State responds that although appellant requested to proceed pro se,
the record indicates he later abandoned his request and waived his right to self-representation.
A criminal defendant has a right to assistance of counsel in state court, guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution, Hatten v. State, 71 S.W.3d
332, 333 (Tex. Crim. App. 2002) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). The
criminal defendant also, however, has the right to waive counsel and represent himself. Hatten,
71 S,W,3d at 333; see also Faretta v. alifrrnia, 422 U.S. 806, 807 (1975). If a defendant
asserts his right to represent himself, the trial court must advise the accused of the consequences
of self-representation. Robinson v. State, 387 S.W.3d 815, 820 (Tex. App.—Eastland 2012, no
pet.).
When a criminal defendant chooses to waive his right to counsel and represent himself,
the waiver should be made “knowingly and intelligently,” and he should be warned of the
“dangers and disadvantages” accompanying such waiver. Faretta, 422 U.S. at 835—36. The
right to self-representation does not attach, however, until it is clearly and unequivocally
asserted. See Walton v. State, No. 05-08-00382-CR, 2010 WL 256630, at *1 (Tex. App.—Dallas
Jan. 25, 2010, no pet.) (not designated for publication).
A defendant may also waive his right to represent himself after he has asserted the right.
Id. Moreover, waiver may be found if it reasonably appears to the court that the defendant has
abandoned his initial request to represent himself. Funderburg v. State, 717 S.W.2d 637, 642
(Tex. Crim. App. 1986); see also Aftrd v. State, 367 S.W.3d 855, 862 (Tex. App.—Houston
[14th Dist.j 2012, pet. ref’d). Of course, a defendant has not waived his right to self
representation if he has merely acquiesced to a trial court’s unmistakable denial of his request to
represent himself. Funderburg, 717 S.W.2d at 642.
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Vie review the trial courts factual determination of whether the detendant elected to
represent himself fur an abuse of discretion. Wa/ion, 2010 WL 256630. at 1; see De(;,)t
e. Slate. 24 S.W.3d 456, 457 (Tex. App..-( orpils Christi 2000, no pet.).
The record reveals the trial court appointed and withdrew appointments for multiple
attorneys. On January 1 2, 2012, the trial court sent a letter to the parties stating in part that
At Mr. Bailey’s request, this ease was set for hearing on December
12, 201111 at 9:00 AM to consider Mr. Bailey’s request to proceed
pro Se. On December 11, 201111, Mr. Gibbs appeared with Mr.
DeLaGarza in chambers and advised the Court that Mr.
DeLaGarza requested permission to withdraw and substitute Mr.
Gibbs. The request was granted. Therefore, Mr. Gibbs will serve
as Mr. Bailey’s attorney, or if he so chooses, standby counsel, at
the trial on January 23, 2012.
The month before trial, Gibbs filed subpoenas and numerous documents on appellant’s behalf.
During a pretrial hearing four (lays before trial, Gibbs participated in lengthy discussions about
the motions and issues in the case.
The State sought clarification during the pretrial hearing regarding who would be
handling the case because, “We know that the Defendant has previously asked to proceed as pro
se. I know that Mr. Gibbs and Mr. Ledbetter have been appointed as standby counsel.” Gibbs
responded that according to his recollection, after the trial court granted appellant’s motion to
proceed pro se, he met with appellant. Gibbs stated, “[Hje instructed me to take over the reigns
in this case and to try it and I’ve proceeded that way.” Gibbs further admitted that he and
appellant had disagreements over certain defense strategies and that was why he had not made
formal notice that he was “taking over this thing.” He said appellant had instructed him to pick
the jury, but appellant wanted to make his own opening statement. The court denied the request
because the law does not give a defendant the right to hybrid representation. Robinson v. State,
240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Henry v. State, 948 S.W.2d 338, 340 (Tex.
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App.—Dallas 1997. no pet). The court further ruled Gibbs would pick the jury. make the
opening statement, and control the case.
Appellant continued to argue that there was a very important aspect of his case he wanted
brought out in trial. While the “very important aspect” was never specifically discussed on the
record, Gibbs made it clear to the trial court that while he had instructed appellant he should not
testify. Gibbs would fulfill his obligation and allow appellant to testify should he so decide.
When the trial court asked appellant again if he wanted to continue pro se, appellant said
“no,” that he really just wanted a certain point clarified and to make sure they were “on the same
page.” The court ultimately took a break for Gibbs and appellant to talk and to decide “who’s
going to be the captain of this ship.”
After the break, Gibbs told the trial court, “. . . I’m going to run this program entirely.”
Appellant then responded, “He’s finally accepted my idea.” Appellant also acknowledged before
voir dire that, lilt’s better to have the attorney represent me than to do it myself.” When the
trial started, Gibbs conducted voir dire, examined witnesses, and handled all other aspects of the
tha
While we agree the record indicates appellant filed a motion to proceed pro se, which the
trial court panted, as detailed above, it can reasonably be inferred from the record that appellant
abandoned his request to continue pro se. See A(ford, 367 S.W.3d at 862; Funderburg, 717
S.W.2d at 642 (holding defendant abandoned right to self-representation when he informed the
trial court he decided to accept attorney’s assistance). Further, appellant never expressed a desire
to represent himself without assistance of counsel during the pre-trial hearings, but rather
requested hybrid representation. In Texas, there is no right to hybrid representation. Robinson,
240 S.W.3d at 922; Heniy, 948 S.W.2d at 340. Moreover appellant never disputed Gibbs’s
statement to the trial court that he was “going to run this program entirely.” Thus, appellant
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n Itimately decided to accept lepresdntation by counsel, thereby ahandomnu any requests to
represent himself, Appellant did not “acquiesce” to any “unmistakable denial of his request to
represent himsell” hut instead “made a conscious, deliberate and voluntary choice to waive a
known righi” Funderburi’, 717 S.W2d at 643. Accordingly, appellant’s first issue is overruled.
Motion for New Trial Hearing
In his second issue, appellant argues the trial court abused its discretion by I’ailing to hold
an evidentiary hearing on his molion for new trial. The State responds appellant laile(I to fleet
his burden to reschedule his motion br new trial hearing: therefore, the trial court did not abuse
its discretion by allowing the motion to be overruled by operation of law. We agree with the
State.
A trial court’s denial of a motion for new trial hearing is reviewed for an abuse of
discretion. Gon:ales v. State. 304 S.W.3d 838. 842 (Tex. Crim. App. 2010). An appellant does
not have an absolute right to a hearing on a motion for new trial. Reves v. State. 849 S.W.2d
8 12, 815 (Tex. Crim. App. 1993). It is the defendant’s burden to ensure that a hearing is set on a
date within the trial court’s jurisdiction. Hernandez v. State, No. 05-02-00842-CR, 2003 WL
1735136, at *1 (Tex. App.—Dallas Apr. 2, 2003, no pet.) (mem. op., not designated for
publication); see (I/SO Ryan v. State. 937 S.W.2d 93, 97 (Tex. App.—Beaumont 1996, pet. ref’d)
(noting the burden was on appellant, through her appointed counsel, to request and obtain a
hearing on her motion prior to the seventy-fifth day after imposition of her sentence).
In Hernandec, the appellant timely filed a pro se motion for new trial in which he
acknowledged the hearing on his motion had to occur before the expiration of seventy-five days
from the imposition of his sentence. Hernandez, 2003 WL 1735136, at * 1. He failed to obtain a
hearing before that date. Id. In concluding the trial court did not err in failing to conduct a
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hearing on his motion br new trial, we stated. “What appellant fails to acknowledge is that it
was his burden to ensure that a hearing was set on or before that date,” Id.
Here, appellant’s appointed appellate counsel timely filed a motion for new trial. The
trial court set the hearing Ior June 22, 2012. However, on May 23. 2012. an entry on the (locket
sheet shows a hearing was held on appellant’s request to proceed pro se, which the trial court
granted, and appellant’s appointed counsel was removed as appellate counsel. Appellant then
timely filed a pro se amended motion for new trial.
The day before the motion for the new trial hearing, appellant filed a motion for
continuance because he was scheduled to appear before another district court in Dallas County
for a separate hearing. He acknowledged in this motion that the court needed to rule on his
motion for new trial prior to July 9, 2012. Nothing in the record indicates the trial court ruled on
this motion.
On July 6, 2012, appellant filed a motion for the court to issue a bench warrant or in the
alternative, grant his amended motion for new trial. Nothing indicates the trial court ruled on
this motion, and appellant’s motion was overruled by operation of law.
Courts have repeatedly held it is the appellant’s burden to timely set a hearing on a
motion for new trial. See, e.g.. Hernande, 2003 WL 1735136, at ‘p1; Ryan, 937 S.W.2c1 at 96—
97; Johnson r’. State, 925 S.W.2d 745. 747—49 (Tex. App.—Fort Worth 1996, pet. ref’d) (noting
it was counsel’s burden to request a hearing on a motion for new trial even though the first
hearing was suspended because of a bomb threat). This is true even if a defendant has requested
a hearing, but for certain reasons such as a continuance, the hearing is postponed. See Johnson,
925 S.W.2d at 749. Thus, it continues to be appellant’s burden to request additional hearings
before his motion for new trial is overruled by operation of law. See Smith v. State, No. 14-97-
00512-CR, 1999 WL 816249, at *2 (Tex. App.—Houston [14th Dist.1 Oct. 14, 1999, no pet.)
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lioldin that the burden uontinues to he on an appellant to see that a hearing is properly set
before the mot ion for new trial is overruled by operation of law) (not designated for publication).
Therefore, based on the record before us, appellant failed to meet his burden to reschedule a
hearing on his motion br new trial hebore it was overruled by operation of law. Accordingly, we
overrule appellants second issue.
Conclusion
Having overruled appellant’s issues, we affirm the trial court’s judgment.
/T\ilichael J. ONeill/
M IC ITAEL JO’ NEILL
JUSTICE
Do Not Publish
Tnx. R. App. P. 47
1 20634F.tJ05
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JUDGMENT
PAUL CLARENCE BAILEY. Appellant On Appeal from the 366th Judicial District
Court, Collin County, Texas
No. 05-12-00634-CR V. Trial Court Cause No, 366-81879-09.
Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS. Appellee Justices Francis and Fillmore participating.
Based on the Court’s opinion of this (late, the judgment of the trial court is AFFIRMED.
Judgment entered this 211 day of August, 20! 3.
fMichael J. O’Neill!
MICHAEL J. O’NEILL
JUSTICE
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