Robinson, Elmer Ray ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1369-05

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ELMER RAY ROBINSON, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

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   Keasler, J., filed a dissenting opinion in which Price and Hervey, JJ., joined.

D I S S E N T I N G O P I N I O N

I respectfully dissent. I would hold that Elmer Ray Robinson may appeal the trial judge's decision to deny his pro se motion for a new trial. The trial judge clearly permitted hybrid representation by considering and ultimately denying the motion; therefore, I disagree with the majority's decision to remand this case to the court of appeals.   

Although a criminal defendant has the right to the assistance of counsel and the right to self-representation, ⁽¹⁾ a criminal defendant does not have the right to hybrid representation. ⁽²⁾ We have recognized, however, that a trial judge, in exercising his or her discretion, may permit hybrid representation. ⁽³⁾ But, because there is no right to hybrid representation, it has long been established that a trial judge generally has no ministerial duty to rule on a pro se motion when a defendant is represented by counsel.

The majority contends that two adverse presumptions of intent can be drawn from the trial judge's decision to deny Robinson's motion for a new trial: first, that the judge intended to rule on the merits of the motion after it was adopted by Robinson's attorney; second, that the trial judge knew that she could "disregard" the motion, and she "intended to simply dispose of [Robinson's] motion by 'denying' it." ⁽⁴⁾ I agree with the majority's conclusion that the record does not support the first presumption of intent, but I disagree with the majority about the second presumption of intent. Because the trial judge had no ministerial duty to rule on the motion, she had no need to "dispose" of the motion or explicitly deny hybrid representation. Therefore, it is contradictory to presume, as the majority does, that the trial judge knew that she was free to disregard the motion while also presuming that she disposed of the motion by denying it. If we presume that the trial judge knew that she was free to disregard the motion, which we should, then we should also presume that she considered and ruled on the merits of the motion when she denied it. As the majority correctly recognizes, we normally construe a denial as a ruling on the merits. ⁽⁵⁾ Under these circumstances, I do not think that we should question what the trial judge meant when she circled "denied" and signed her name. By denying Robinson's pro se motion, I believe that the trial judge issued a ruling on the merits, and by ruling on the merits, the trial judge permitted hybrid representation. I would therefore reverse the judgment of the court of appeals and hold that the trial judge's denial of Robinson's pro se motion for a new trial is appealable.

DATE DELIVERED: November 21, 2007

PUBLISH

1. Faretta v. California, 422 U.S. 806, 807, 818 (1975).

2.

Landers v. State, 550 S.W.2d 272, 279 (Tex. Crim. App. 1977).

3.

Johnson v. State, 760 S.W.2d 277, 291 (Tex. Crim. App. 1988) (stating, "'a patient trial judge may allow both counsel and the accused to jointly participate in the case.'") (quoting Webb v. State, 533 S.W.2d 780, 784 n.2 (Tex. Crim. App. 1976)); see also McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) (addressing the limitations on stand-by counsel).

4.

Ante, slip op. at 5.

5.

Ante, slip op. at 6.