Opinion
03-22-00203-CR
07-28-2023
André Webb, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-19-301919, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING.
Before Baker, Smith, and Jones, Justices.[*]
MEMORANDUM OPINION
Thomas J. Baker, Justice.
André Webb was convicted of the offense of aggravated robbery and sentenced to fifty years' imprisonment. See Tex. Penal Code §§ 12.42, 29.03. In six issues on appeal, Webb contends that this Court lacks jurisdiction over the appeal; that the trial court erred by failing to refer his pro se recusal motion to the regional presiding judge; that he did not freely, intelligently, and voluntarily waive his right to counsel; that the trial court deprived him of his right to self-representation; that portions of the trial court's written judgment must be deleted because they conflict with the oral pronouncement of his sentence; and that the trial court erred by entering a cumulation order. We will modify the trial court's judgment of conviction to remove the cumulation order and affirm the judgment as modified.
BACKGROUND
Webb was charged with aggravated robbery in 2019, and the indictment alleged that Webb used and exhibited a firearm during the offense and that he previously committed the felony offense of aggravated robbery on two occasions. The trial was continued several times due to the COVID-19 pandemic, and several pretrial hearings were held before the trial ultimately began in March 2022.
In October 2019, the trial court appointed an attorney to represent Webb. In March 2020, Webb filed a motion to dismiss the appointed attorney, and Webb asked for his attorney to be dismissed during a pretrial hearing in May 2020. After considering Webb's arguments at the hearing, the trial court denied the motion to dismiss. In early August 2021, a new appointed attorney was substituted and began representing Webb. Almost three weeks later, while still represented by his second counsel, Webb filed a pro se motion to recuse the trial court judge.
One month later, Webb filed a motion to dismiss the second attorney, and Webb also asserted that he wanted to represent himself during a hearing in January 2022. After the trial court provided an explanation regarding the disadvantages to self-representation and recommended that Webb allow the appointed attorney to represent him, the trial court explained that it would allow him to represent himself if he filled out and signed the form for waiving an attorney. However, the trial court also explained that rather than dismiss the attorney, it would order the attorney to serve as standby counsel to aid Webb during trial if needed. Webb filled out and signed the form in January 2022 and represented himself during subsequent pretrial hearings and at trial, but the standby counsel was present.
During voir dire, the trial court explained to Webb that his range of movement would be limited to the area near his table, and Webb mentioned to the jury panel that there were law-enforcement officers present in the courtroom. At trial, several witnesses testified regarding the robbery that occurred at a convenience store by two masked individuals with guns, and surveillance footage of the offense was admitted into evidence. Further, multiple law-enforcement officials testified regarding their efforts to identify the offenders and how their investigation showed that Webb was one of the offenders. At some point, the trial court asked one of the law-enforcement officers if Webb's mic was on. In the beginning of his closing argument, Webb mentioned that he was wearing a leg brace. After considering the evidence, the jury found Webb guilty of the charged offense.
In the punishment hearing, Webb pleaded true to the enhancement allegation. In addition, the State presented evidence regarding an unadjudicated aggravated robbery allegedly committed by Webb. After considering the evidence, the jury sentenced Webb to fifty years' imprisonment. Once the jury foreperson read the jury's assessed punishment, the trial court explained that Webb's punishment in the current case would begin after he finished serving his sentence from the prior conviction. Although the trial court later entered a written judgment of conviction sentencing Webb consistent with the jury's verdicts, the trial court never orally pronounced the sentence at the punishment hearing.
Webb appeals the trial court's judgment of conviction.
DISCUSSION
In his first issue on appeal, Webb contends that this Court lacks jurisdiction over the appeal because the trial court failed to pronounce his sentence in his presence. In his second issue, Webb argues that the trial court erred by failing to refer his pro se motion to recuse the trial judge to the regional presiding judge. In his third issue, he asserts that he did not freely, intelligently, and voluntarily waive his right to counsel. In his fourth issue, he contends that the trial court deprived him of his right to self-representation. Finally, he argues in his last two issues that the cumulation order from the trial court's written judgment must be deleted.
Jurisdiction
As mentioned above, Webb asserts that this Court does not have jurisdiction over the appeal because the trial court did not pronounce its sentence in his presence. After Webb appealed, the State filed a motion to abate the appeal, suggesting that this Court should abate the appeal to allow the trial court to announce its sentence in Webb's presence. We granted the motion and abated the appeal for further proceedings. See Webb v. State, No. 03-22-00203-CR, 2023 WL 346678, at *2 (Tex. App-Austin Jan. 20, 2023, order) (mem. op., not designated for publication). On remand, the trial court "pronounce[d] the sentence that the jury returned of 50 years['] imprisonment on this aggravated robbery case." Further, the trial court ordered the trial court clerk to prepare a new judgment of conviction. A supplemental clerk's record containing the new judgment of conviction and a supplemental reporter's record of the hearing on remand were filed in this appeal, and the appeal was reinstated.
In his brief, Webb acknowledges that this Court and other intermediate appellate courts have concluded in similar circumstances that the courts did not have jurisdiction over the appeals but that the proper remedy was provided under Rule of Appellate Procedure 44.4, which requires as follows:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.Tex. R. App. P. 44.4; see Edic v. State, Nos. 03-17-00788-00789-CR, 2018 WL 2123465, at *2 (Tex. App-Austin May 8, 2018, order) (mem. op., not designated for publication) (concluding that appellate court did not have jurisdiction over appeal because trial court failed to orally pronounce sentence in defendant's presence but abating appeal and remanding case to allow trial court to pronounce sentence in his presence under Rule 44.4); Keys v. State, 340 S.W.3d 526, 529 (Tex. App -Texarkana 2011, order) (same); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App-Houston [14th Dist] 2008, order) (same). However, Webb contends that this procedure has not been endorsed by the Court of the Criminal Appeals and asserts that the Court has instead concluded that dismissal is the only appropriate remedy.
As support, Webb refers to Thompson v. State, 108 S.W.3d 287 (Tex. Crim. App. 2003). In that case, the defendant was charged with two offenses, but the trial court only pronounced sentence on one of the counts following conviction. Id. at 288, 289. However, the written judgments of conviction reflected that the defendant was given the same sentence in each count. Id. at 289. The intermediate court of appeals dismissed the defendant's appeal regarding the offense for which no oral pronouncement was made, addressed the appeal of the other conviction, and affirmed that conviction. Id. When considering the propriety of the appellate court's decision, the Court of Criminal Appeals agreed that the court of appeals had no jurisdiction to consider the merits of the offense for which no sentence was pronounced. Id. at 290. However, although the Court of Criminal Appeals concluded that the intermediate court chose a proper remedy, it did not conclude that abatement under Rule 44.4 would have been impermissible; in fact, the Court of Criminal Appeals indicated that there may have been more than one proper remedy in that case. Id. at 290-91. Moreover, years later, when confronted with an issue addressing a conflict between a trial court's "oral denial of a motion to quash . . . and its subsequent written order," the Court of Criminal Appeals concluded that Rule 44.4 applied and that the intermediate court should have abated the matter to the trial court to allow the court to resolve the conflict. Henery v. State, 364 S.W.3d 915, 916, 919 (Tex. Crim. App. 2012); see also Taylor v. State, 247 S.W.3d 223, 223-24 (Tex. Crim. App. 2008) (concluding that intermediate court of appeals should have abated appeal due to conflict in record concerning ruling on motion for new trial).
Given that the Court of Criminal Appeals recognized in Thompson that other permissible remedies were possible, that the Court has never prohibited the use of Rule 44.4 in the circumstances present here, and that the Court has sanctioned using Rule 44.4 in similar circumstances, we conclude that Rule 44.4 applied in this case and that our prior abatement under Rule 44.4 properly allowed the trial court to pronounce its sentence in the presence of Webb and cure the defect. See Tex. R. App. P. 44.4; Webb, 2023 WL 346678, at *2. Moreover, because the trial court has now pronounced sentence in Webb's presence, we conclude that we have jurisdiction over this appeal. See Thompson, 108 S.W.3d at 290.
For these reasons, we overrule Webb's first issue on appeal.
Motion to Recuse
In his second issue on appeal, Webb contends that the trial court erred by failing to refer his pro se motion to recuse to the regional presiding judge. When presenting this issue, Webb contends that his motion complied with the requirements for recusal motions and was timely filed. Further, Webb contends that he attempted to bring the motion to the trial court's attention multiple times by writing two letters to the trial court clerk, by mentioning the motion to the trial court during a pretrial hearing, and by filing a petition for writ of mandamus with this Court after he was convicted in this case asking us to order, among other things, that the trial judge allow the motion to be ruled on. See In re Webb, No. 03-22-00195-CV, 2022 WL 1203567, at *1 (Tex. App- Austin Apr. 22, 2022, orig. proceeding) (mem. op.) (denying relief). Moreover, Webb argues that because the trial judge failed to recuse herself or refer the matter to the regional presiding judge, all the subsequent actions by the trial court were void. For these reasons, Webb contends that his conviction should be reversed and that the case should be remanded for further proceedings.
Under Rule 18a, a party in a case "may seek to recuse . . . a judge who is sitting in the case by filing a motion with the clerk of the court." Tex.R.Civ.P. 18a(a); see Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (explaining that Rule 18a applies to recusal of judges in criminal cases); Duffey v. State, 428 S.W.3d 319, 324 (Tex. App -Texarkana 2014, no pet.) (same). That Rule sets out requirements for the motion. See Tex. R. Civ. P. 18a(a). Upon receiving the motion, the trial judge must either sign an order recusing the judge from the case or sign an order referring the motion to the regional presiding judge. Id. R. 18a(f). If the motion is filed before evidence has been offered at trial, the trial judge "must take no further action in the case until the motion has been decided, except for good cause stated in writing or on the record." Id.
However, when Webb filed his motion to recuse in August 2021, he was represented by counsel, and as highlighted by Webb, the trial court never ruled on the motion. "[A] defendant has no right to hybrid representation." Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). Accordingly, "a trial court is free to disregard any pro se motions presented by a defendant who is represented by counsel," and a "decision not to rule on a pro se motion" is not "subject to review." Id. Moreover, although Webb referenced that the motion to recuse had not been ruled on in letters to the trial court clerk, in a pretrial hearing, and in a petition for writ of mandamus filed with this Court after he was convicted, he did not file a motion to recuse after waiving his right to counsel or present argument regarding the motion during the pretrial hearing. See Tex. R. Civ. P. 18a(a) (requiring that motion to recuse be filed with clerk of trial court).
On this record, we cannot conclude that the trial court erred by failing to either sign an order of recusal or an order referring the motion to the regional presiding judge. See id. R. 18a(f); see also Hazelwood v. State, 838 S.W.2d 647, 650 (Tex. App-Corpus Christi-Edinburg 1992, no pet.) (concluding that trial court did not err in failing to either recuse itself or refer pro se recusal motion to presiding administrative judge when accused was represented by counsel).
Accordingly, we overrule Webb's second issue on appeal.
Waiver of Right to Counsel
In his third issue, Webb asserts that he did not freely, intelligently, and voluntarily waive his right to counsel. When presenting this issue, Webb acknowledges that he asked to represent himself, that the trial court warned him about the disadvantages to self-representation, that the trial court warned him self-representation was particularly problematic in felony cases like his that could result in a sentence of life imprisonment, and that the trial court provided him with a "waiver of attorney" form informing him of the drawbacks to self-representation. However, he asserts that the waiver form was not very thorough; notes that other states have recommended that trial judges ask questions listed in various judicial benchbooks to ascertain whether the waiver is freely, intelligently, and voluntarily made, see State v. Parsons, 437 S.W.3d 457, 481 n.14 (Tenn. Crim. App. 2011); Hannan v. State, 732 N.W.2d 45, 53 (Iowa 2007); People v. Alengi, 148 P.3d 154, 159 (Colo. 2006); and then identifies questions from the Benchbook for U.S. District Judges that he suggests should be asked by Texas trial courts, see Federal Jud. Ctr., Benchbook for U.S. District Court Judges § 1.02 (2013) (listing questions for district judge to ask defendant if defendant does not want counsel). Webb contends that the trial court failed to engage in this type of dialogue and, therefore, failed to adequately warn him of the specific disadvantages and dangers of self-representation. Additionally, Webb contends that he was not specifically warned that representing himself in this case would place him at a disadvantage due to his freedom of movement being hindered by a leg brace and due to his being monitored by two deputies. For these reasons, he contends that his waiver was not freely, intelligently, and voluntarily made and that this Court should reverse his conviction and remand the case for a new trial.
Appellate courts review de novo issues challenging the propriety of a waiver of the right to counsel on the basis that the trial court did not properly warn a defendant about the dangers and disadvantages of self-representation. See United States v. Garcia-Hernandez, 74 F App'x 412, 415 (5th Cir 2003); Hernandez v State, No 03-19-00202-CR, 2020 WL 3526355, at *5 (Tex App-Austin June 30, 2020, no pet) (mem op, not designated for publication) The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense" U.S. Const amend VI; see Williams v State, 252 S.W.3d 353, 355 (Tex Crim App 2008) That amendment also "implies a right of self-representation" Faretta v California, 422 U.S. 806, 821 (1975); see Williams, 252 S.W.3d at 356 Even if a defendant "may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law'" Faretta, 422 U.S. at 834 (quoting Illinois v Allen, 397 U.S. 337, 350-51 (1970) (Brennan, J, concurring)); see Hathorn v. State, 848 S.W.2d 101, 123 (Tex. Crim. App. 1992) (noting that defendant's choice of self-representation need not be "wise"). A defendant must assert his right to self-representation clearly and unequivocally for the right to attach. Williams, 252 S.W.3d at 356; see Faretta, 422 U.S. at 835 (noting that "weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel"). To exercise his right to self-representation, a defendant must competently, knowingly, and intelligently waive his right to counsel. Austin v. Davis, 876 F.3d 757, 764 (5th Cir. 2017); see Faretta, 422 U.S. at 835.
A defendant's decision to waive counsel and proceed pro se is made "knowingly and intelligently" if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. Moore v. State, 999 S.W.2d 385, 396 n.5 (Tex. Crim. App. 1999). A defendant's decision is made "voluntarily" if it is uncoerced. Id. We look at the totality of the circumstances-including the defendant's background, experience, and conduct-to assess whether a waiver is effective. Williams, 252 S.W.3d at 356.
Before granting a defendant's request to proceed pro se, the trial judge must caution him about the dangers of such a course of action "so that the record will establish that he knows what he is doing and his choice is made with eyes open." Austin, 876 F.3d at 783 (internal quotations omitted); see Faretta, 422 U.S. at 835. Trial couts have no required "litany" to establish a defendant's knowing and intelligent waiver. Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988). The admonishments should include an effort to ensure the defendant's awareness "of the practical disadvantages of representing himself." Id. at 279. The trial judge must inform the defendant "that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights." Williams, 252 S.W.3d at 356.
Although Webb suggests that the trial court should have asked him the type of questions listed in benchbooks for federal and other states' courts, the Court of Criminal Appeals has determined that there is no need to follow a "formulaic questioning" or a particular "script" to evaluate a defendant's waiver of counsel. See Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). In this case, in several pretrial hearings, Webb acknowledged that he had been appointed a lawyer in a prior case for evading arrest, and the trial court explained to Webb that in this case he had been charged with the first-degree-felony offense of aggravated robbery, that the punishment range was from 5 to 99 years or life, that the minimum punishment option would be elevated if the enhancement allegation were found to be true, and that he had been appointed a new attorney with more experience and qualifications to represent him in this case. See Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. App. 1997).
We note that multiple intermediate appellate courts have concluded that Faretta admonishments are not required when standby counsel is appointed, see Montgomery v. State, No. 03-15-00203-CR, 2016 WL 7187471, at *4 n.4 (Tex. App-Austin Dec. 7, 2016, pet. dism'd, untimely filed) (mem. op., not designated for publication) (listing cases), even in circumstances where standby counsel is appointed but does not participate in trial, see Walker v. State, 962 S.W.2d 124, 126-27 (Tex. App-Houston [1st Dist] 1997, pet. ref d); Robertson v. State, 934 S.W.2d 861, 864, 866 (Tex. App-Houston [14th Dist.] 1996, no pet.). But see Grant v. State, 255 S.W.3d 642, 647 (Tex. App-Beaumont 2007, no pet.) (explaining that "admonishments should be given regardless of the appointment of standby counsel").
Additionally, the trial court warned Webb that he would be "held to the same rules and standards of knowledge that a lawyer would have" if he chose to represent himself, would "have to know the rules of procedure," would have to know when to make objections and what types of questions were allowable, and would be charged with knowledge regarding "the rules, the processes, [and] the Texas law regarding [his] case." See Williams, 252 S.W.3d at 356; Collier, 959 S.W.2d at 626. Similarly, the trial court warned Webb that he would be at a disadvantage because the prosecuting attorneys had been practicing for years. Additionally, the trial court warned that representing himself would not provide Webb with any additional access to a law library, but the trial court explained that he could have access to a private investigator if he filed the appropriate motion. The trial court also asked Webb's appointed counsel about Webb's familiarity with the law, and his attorney explained that he had "an extraordinarily high knowledge of legal matters" and legal process. Further, the trial court repeatedly recommended that Webb not choose to represent himself. However, despite these warnings, Webb repeatedly, unequivocally, clearly, and consistently stated that he wanted to waive his right to counsel and represent himself. See Faretta, 422 U.S. at 835; Williams, 252 S.W.3d at 356.
After Webb declared his desire to represent himself, the trial court directed him to read and sign a waiver form, and Webb signed the form. The language of the waiver-of-counsel portion of the form is consistent with the waiver language suggested in subarticle 1.051(g) of the Code of Criminal Procedure, and the remainder of the form provided additional explanation beyond that required by subarticle 1.051(g). See Tex. Code Crim. Proc. art. 1.051(g). Specifically, the form reflects that Webb was aware of the charges against him; understood that there were many disadvantages to representing himself; would be "expected to adhere to all relevant rules of procedure, decorum, evidence[,] and any other rules that a licensed attorney would be expected to adhere to"; and would be "expected to know the complexity of the rules regarding the making of proper objections, preserving error, and other related skills." Additionally, the form stated that Webb understood that there are benefits to having the assistance of counsel due to the attorney's experience and knowledge but that he had chosen to "knowingly and intelligently waive [his] right to counsel."
Nothing in the record indicates that Webb's decision to elect to represent himself was coerced or could be considered involuntary; on the contrary, the totality of the circumstances reveals that he made the decision to represent himself freely, intelligently, and voluntarily after being warned about the dangers of doing so. See Faretta, 422 U.S. at 834-36; Moore, 999 S.W.2d at 396. Further, although Webb contends that he should have been given additional admonishments, the admonishments given by the trial court were as extensive as the types of admonishments that have been deemed sufficient. See Collier, 959 S.W.2d at 626 (observing that trial court explained offense and punishment range, conveyed that defendant's representing himself would be serious mistake, elicited from defendant that he had high-school-equivalent education and knew of right to have appointed counsel, and explained that there were technical rules that would be applied at trial and that he would not be given any special consideration regarding those rules); Burgess v. State, 816 S.W.2d 424, 427, 428-29 (Tex. Crim. App. 1991) (noting that trial court advised defendant that rules of evidence and procedure would apply to him if he represented himself, that he would be under same rules of conduct as lawyer, that trial court would treat his objections same as ones made by lawyer, and that he would not be given any slack or treated any differently than lawyer); Griffis v. State, 441 S.W.3d 599, 610, 611 (Tex. App-San Antonio 2014, pet. refd) (emphasizing that trial court elicited that defendant attended college and had never represented himself, that trial court informed defendant that practicing law is complicated and involves knowledge of rules of evidence and procedure, and that self-representation was like going across mine field). Further, the trial court respected Webb's unequivocal and clear decision to represent himself while also ensuring that the decision was made freely, intelligently, and voluntarily with Webb's eyes "open" to the dangers and disadvantages accompanying the right to represent oneself. See Faretta, 422 U.S. at 835; Williams, 252 S.W.3d at 356.
Considering the totality of the circumstances and based on this record, we conclude that Webb's waiver of his right to be represented by counsel, other than benefitting from the assistance of standby counsel, was effective because it was made freely, intelligently, and voluntarily with his eyes open and was made following adequate judicial admonitions about the disadvantages and dangers of self-representation. See Faretta, 422 U.S. at 835; Williams, 252 S.W.3d at 356; Collier, 959 S.W.2d at 626; see also Myles v. State, No. 01-14-00581-CR, 2015 WL 3877738, at *3 (Tex. App-Houston [1st Dist] June 23, 2015, no pet.) (mem. op., not designated for publication) (rejecting claim on appeal that waiver of counsel was invalid because record revealed that trial court admonished appellant under Faretta and also appointed standby counsel).
For these reasons, we overrule Webb's third issue on appeal.
Right to Self-Representation
In a companion claim, Webb asserts in his fourth issue on appeal that the trial court deprived him of his right to self-representation. More specifically, Webb contends that the trial court violated his right by ordering him "to wear a hobbling leg brace in the presence of the jury, ordering Travis County Sheriffs deputies to closely guard [him] during trial, restricting [his] movements in the courtroom (while declining to restrict the prosecutor's movements), and making comments before the jury panel disparaging [his] exercise of his constitutional right to self-representation."
When presenting these claims, Webb highlights that he mentioned that he was wearing a leg brace when he made his closing argument and further indicated that he made his opening statement and closing argument while standing. Accordingly, Webb asserts that the jury saw him wearing the brace. Further, Webb notes that there is no explanation in the record regarding the trial court's decision to require him to wear a brace. Moreover, Webb contends that there were two police officers that were in close proximity to him during trial and that their presence undermined his right to self-representation. Next, Webb argues that the trial court imposed restrictions on his ability to move in the courtroom but placed no restrictions on the State. Additionally, Webb highlights that he asked to have the victim brought closer to him so that the victim could look at Webb's eyes to see if the victim recognized the eyes but that the trial court stated that it would not allow that to happen. Further, Webb emphasizes that the State approached the trial court bench in front of the jury once without his presence and was allowed to approach the witness stand twenty-seven times during trial, but he acknowledges that he was allowed to approach the bench two times with the State in the presence of the jury and one time outside the presence of the jury. In addition, Webb argues that the trial court did not allow him to approach the jury box when he wanted to publish an exhibit and instead had the bailiff hand the exhibit to the jury.
In his brief, Webb extensively details the type of leg brace that he allegedly wore during at least part of the trial, but no information regarding the type of brace used is in the record. See Sterling v. State, 830 S.W.2d 114, 118 (Tex. Crim. App. 1992) (explaining that appellate courts "must accept the record as presented and cannot assume the existence of any circumstance or fact"); see also Estrada v. State, No. 14-17-00410-CR, 2018 WL 5914504, at *3 (Tex. App - Houston [14th Dist] Nov. 13, 2018, pet. ref d) (mem. op., not designated for publication) (noting that appellate courts "cannot consider documents that are not included in the record on appeal").
In its brief, the State asserts that Webb failed to preserve this complaint by failing to make an objection at trial. In response, Webb contends that the denial of the right to self-representation is structural error that may be raised for the first time on appeal and that, accordingly, this Court may address this appellate issue. See Weaver v. Massachusetts, 582 U.S. 286, 295 (2017) (explaining that violation of a "defendant's right to conduct his own defense" is structural error); Powell v. State, 252 S.W.3d 742, 744 (Tex. App-Houston [14th Dist] 2008, no pet.) (explaining that denial of "the right to self-representation at trial" is fundamental error). For purposes of resolving this issue on appeal, we will assume that Webb's arguments may be raised for the first time on appeal. Cf. Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (explaining that need to inform trial court of basis for complaint is even greater when complaint is making constitutional argument).
"The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense." McKaskle v. Wiggins, 465 U.S. 168, 176-77 (1984); see id. at 177 (explaining that both objectives "can be reached without categorically silencing standby counsel"). "A defendant's right to self-representation plainly encompasses certain specific rights to have his voice heard." Id. at 174. More specifically, "[t]he pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial." Id. These rights to facilitate making a defendant's "voice heard" "form the core of a defendant's right to self-representation." Id. at 177. To effectively achieve the right to self-representation, "the pro se defendant" must be allowed "to preserve actual control over the case he chooses to present to the jury." Id. at 178. Further, "participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself." Id.
The record in this case reveals that Webb informed the jury panel during voir dire that he had chosen to represent himself because he believed that he could present his defense better than anyone else could and because he knew what he did and did not do, discussed the issue of credibility, and questioned the panelists about their ability to fulfill their duties if chosen to be jurors. Additionally, Webb elected to have the jury determine his punishment. Further, Webb was present for the entirety of the trial, and nothing in the record indicates that Webb was excluded from any hearing outside the presence of the jury. Although the record seems to indicate that the State did approach the bench once without Webb in the presence of the jury, that short conference is part of the record, and in the conference, the State simply said that its next witness would be a long one and informed the trial court when the witness was expected to arrive.
During both phases of trial, Webb cross-examined nearly every witness that the State called and made several objections regarding questions posed or arguments made by the State. Further, during the first phase, he invoked the rule at the start of trial, made an opening statement in which he asserted that the State's evidence would not establish his guilt, and made closing arguments questioning the thoroughness of the investigation by the police, noting that the State did not explain the large gaps in time in the investigation, highlighting inconsistencies in the State's evidence, emphasizing that the victim of the aggravated robbery did not recognize him, and urging that the State did not prove its case beyond a reasonable doubt. During the second phase, Webb asserted in his closing argument that he was a changed man and that the jury should bear that in mind when sentencing him. Moreover, standby counsel only addressed the trial court once to ask how challenges and strikes to panelists would be handled and asked this question outside the presence of the panel. Standby counsel did not attempt to undermine Webb's presentation of the case. Accordingly, the record establishes that Webb was able to make his voice heard and that the appointment of standby counsel in this case did not affect the jury's interpretation that Webb was representing himself. See id.
In his brief, Webb seems to acknowledge that standby counsel did not interfere with his ability to represent himself at trial but argues that the actions of the trial court in this case violated his right to self-representation. However, rather than address a violation of the right to self-representation, the cases that Webb refers to address the presence of police officers in a courtroom as affecting the presumption of innocence or the use of restraints in the context of due process, the ability of a defendant to communicate with his or her attorney, or an infringement of the presumption of innocence. See, e.g., Deck v. Missouri, 544 U.S. 622, 625, 630-31, 634-35 (2005) (noting that defendant objected multiple times to use of shackles; reasoning that visible shackling affects presumption of innocence, can interfere with ability to communicate with attorney, and can undermine court's formal dignity; and concluding that defendant's constitutional rights were violated because jury saw shackles, because no explanation for why shackles were used was made, and because shackling is inherently prejudicial); Holbrook v. Flynn, 475 U.S. 560, 562-63, 567, 572 (1986) (stating that defendant objected to presence of uniformed officers and concluding that presence of officers was not "so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial"); Bell v. State, 415 S.W.3d 278, 280, 283 (Tex. Crim. App. 2013) (considering objection to being shackled as affecting defendant's presumption of innocence and due-process rights and concluding that error was not of constitutional dimension because record did not show "that there was a reasonable probability the jury perceived [the] restraints" or that shackling interfered with defendant's ability to communicate with counsel or participate in trial or "undermined the dignity of the judicial process"); Austin v. State, No. 06-07-00161-CR, 2008 WL 4910254, at *2, *3-4 (Tex. App.-Texarkana Nov. 18, 2008, no pet.) (mem. op., not designated for publication) (concluding that trial court abused its discretion by shackling defendant after ruling on motion to appear without restraint because it affected his presumption of innocence but concluding that error was harmless because there is no indication that jury saw shackles).
As support for this argument, Webb relies, in part, on analyses from federal cases. See Earhart v. Konteh, 589 F.3d 337 (6th Cir. 2009); Oses v. Massachusetts, 775 F.Supp. 443 (D. Mass. 1991). However, the analyses from those cases are not binding on this Court, and the cases are distinguishable. See State v. Cardenas, 36 S.W.3d 243, 245 n.3 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd); see also Earhart, 589 F.3d at 351 (finding no infringement of right to act as own attorney where record showed prosecution and defendant had similarly restricted movement); Oses, 775 F.Supp. at 458, 459, 460 (noting that defendant's control over his trial "was severely restrained by his exclusion from the lobby and bench conferences" and discussing how judge ordered pro se defendant gagged and placed in shackles).
Webb concedes on appeal that he could not bring a due process claim on appeal because he did not object to the restrictions at trial. See Ex parte Chavez, 560 S.W.3d 191, 200 (Tex. Crim. App. 2018); see also Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (concluding that defendant "forfeited his denial-of-due-process claim by not preserving error at trial").
Moreover, nothing in the record before this Court demonstrates that the use of a leg brace, the presence of police officers, and the limitation in his movement in the court room impacted his right to self-representation. Regarding the leg brace, the only reference to the brace in the record came from Webb when he stated during his closing argument, "Y'all got to excuse me; they got me wearing a brace on my leg." Nothing indicates that the brace is something that the jury could see or that its effects were noticeable. Similarly, there are only two references to the presence of police officers in the record. First, Webb mentioned the presence of officers when he asked the jury panel during voir dire if any of the panelists felt he was guilty because he had "a sheriff right here and another sheriff" and explained as follows: "I asked them to stand right there because I want you all to feel at ease, not saying I'm going to do anything to you." Next, during the guilt-innocence phase, the trial court asked, "Deputy, is [Webb's] mi[c] on?" See Sterling v. State, 830 S.W.2d 114, 117, 118 (Tex. Crim. App. 1992) (noting that presence of armed law-enforcement officers "is not inherently prejudicial" because presence of guards need not be interpreted as sign that defendant is particularly dangerous or culpable and can instead lead to conclusions that guards were necessary '"to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence'" (quoting Holbrook, 475 U.S. at 569)).
Regarding limitations on Webb's ability to move throughout the court room, the trial court explained to Webb during voir dire that he would "only be able to walk around the area of [his] counsel table" both in front of and behind the table. When Webb asked if the State would have the same limitation, the trial court explained that the State would not have the same restrictions and that his "movement is a little more restricted than theirs because [he was] in jail and the security aspect of it." During another hearing, the trial court explained in response to a question from Webb that he would be able to stand near his table when making an opening statement. Both of those instructions occurred outside the presence of the jury panel and jury. And nothing in the record indicates that this limitation affected Webb's ability to represent himself.
Further, although the State was permitted to approach the witness stand multiple times, although the trial court did not allow the victim to be moved closer to Webb to see if the victim recognized Webb's eyes, and although the trial court had a bailiff show an exhibit to the jury rather than allow Webb to do so, "[conditions in the courtroom that treat the defendant differently are not inherently prejudicial because jurors are aware that the defendant is not in trial by choice or happenstance." See King v. State, No. 03-12-00105-CR, 2014 WL 1691642, at *3 (Tex. App-Austin Apr. 25, 2014, pet. ref d) (mem. op., not designated for publication).
Moreover, trial courts have broad discretion regarding how to conduct trial proceedings. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex. Crim. App. 2003); see also Musgrove v. State, 425 S.W.3d 601, 611 (Tex. App-Houston [14th Dist] 2014, pet. refd) (explaining that appellate courts should not "second-guess the trial court's discretion in controlling the courtroom and ensuring the safety of the litigants, participants, and witnesses in attendance"). In addition, no emphasis was placed on the limitations in front of the jury, and the State was not allowed to move witnesses from the stand in the manner requested by Webb. See Musgrove, 425 S.W.3d at 606, 612 (determining that requiring standby counsel to approach witnesses instead of defendant was unobtrusive way to keep courtroom secure and proceedings orderly and explaining that nothing in record showed that jury had reason to perceive defendant differently based on procedure used). Further, when imposing the restrictions, the trial court was aware that Webb was being charged with aggravated robbery with a firearm and had allegedly committed two prior aggravated robberies.
Turning to Webb's contention that the trial court disparaged his choice to represent himself, he emphasizes that the trial court informed the jury that there is a warning and waiver that defendants must sign before they can represent themselves; that trial courts also provide a "verbal admonition that they should not [represent themselves] and that it is not advisable"; that the trial court was not forcing Webb to represent himself "because it is solely a defendant's choice to be represented by counsel or not"; that Webb is competent and knowingly made the "decision on his own, regardless of what the Court's advice or counsel's advice might have been"; that defendants representing themselves "are held to the same standards" as attorneys; and that the trial court could not "preside and teach law school during the course of a trial." On appeal, Webb characterizes these comments as impermissibly implying that the trial court would have preferred that Webb have a lawyer, that Webb rejected the trial court's advice, and that Webb's defense would likely be ineffective. Further, Webb contends that the comments were improper because they expressed the trial court's negative views of his exercise of a constitutional right.
In presenting these arguments, Webb refers to Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.). However, that case is distinguishable because it involved a situation in which the trial court explained to a jury panel that the defendant had the right to a jury trial but that the trial court would have preferred that he pleaded guilty. Id. at 132-33. Moreover, Blue is a plurality opinion, and the Court of Criminal Appeals has explained that the analysis is not binding authority. See Unkart v. State, 400 S.W.3d 94, 100-01 (Tex. Crim. App. 2013).
However, we do not agree with Webb's characterization and note that those comments were part of a larger explanation provided by the trial court. As part of an introduction to the case, the trial court provided the following explanation to the jury panel during voir dire:
Of counsel in this case is Mr. Ray Espersen. Mr. Espersen is a local attorney who is functioning of counsel.
And I know you have questions about that, so I'm going to stop and explain that to you right now. It goes along with one of the areas I'm going to be talking to you about anyway.
You know, our constitution provides that everyone has a right to represent themselves should they so choose and should they be mentally competent to make that decision to do so.
I cannot force anyone to hire an attorney if they have chosen not to do so or if they don't want one. So I cannot force an attorney upon any person charged with any crime. However, when you choose to represent yourself, I am obligated and have warned anyone accused of a crime, especially a serious crime as we hear in these courtrooms, of the dangers of doing so.
A person who chooses to represent themselves are held to the same standards as an attorney would be who has been trained to do that, no matter how many lawsuits they have tried [or] how much knowledge they have.
If you choose to represent yourself, you have to abide by those same rules. There are no exceptions. You can't just do things that are not in order and not according to the law because you have chosen to represent yourself. You have to abide by the same legal parameters as any attorney would in representing you.
What I have done in this instance is appointed a standby counsel that can offer advice to an accused charged if the accused solicits that information or asks that information of them. It is totally up to the defendant to request that information, or to request that advice, or to reject that advice.
The of-counsel attorney cannot force the defendant to do anything, cannot make the defendant [do] anything, can only actually interact when requested to do so. That is the point of standby counsel, and that is the capacity in which Mr. Espersen is serving.
Prior to my allowing any defendant accused of a felony to represent themselves, there is a long written warning that they are given and that they must sign and acknowledge that they have knowledge of, in addition to the Court's verbal admonition that they should not do so and that it is not advisable.
That has all occurred prior to you getting here. I don't want you to think that the Court or any agent of the Court is forcing it to happen because it is solely a defendant's choice to be represented by counsel or not.
In this instance, Mr. Webb has chosen to represent himself. He has received all of those warnings. He is competent to stand trial and knowingly made that decision on his own, regardless of what the Court's advice or counsel's advice might have been.
Let me tell you -- and so they're expected -- they are held to the same standards. I cannot preside and teach law school during the course of a trial. You have to come in here ready to go. The most I can do is appoint a standby counsel to consult with you if you make that request to do so.
So that's where we are, and that's why it looks the way it does right now.
With this larger context, the trial court's comments do not impugn or malign Webb's decision to represent himself and instead explain the process by which someone chooses to represent himself and the burdens and responsibilities that self-representation carries with it. See Sturgeon v. State, No. 01-11-00575-CR, 2013 WL 816377, at *3-4 (Tex. App.-Houston [1st Dist.] Mar. 5, 2013, pet. ref'd) (mem. op., not designated for publication) (explaining that comments by trial court that defendant refused offer of appointed counsel, would not receive special treatment, and would not be advised by court on how to conduct case did not "disparage[] or demean[] defendant" and instead explained "the unusual situation in which [defendant] was representing himself but "had access to standby counsel"). Although the trial court did explain that it admonished Webb that it was not advisable to represent himself, the court also explained that Webb had the right to represent himself, was competent to make the decision regarding whether to represent himself, and knowingly made that choice. In that context, we do not agree that the trial court's statements maligned Webb's decision to represent himself. See Saunders v. State, 721 S.W.2d 359, 364 (Tex. App-Tyler 1985, pet. ref d) (noting that after trial court explained that defendant had elected to exercise his constitutional right to self-representation and explained role of stand-by counsel, court then stated that it had advised defendant not to represent himself because decision placed him "at a decided disadvantage," was "dangerous," was "ill-advised," and was like performing "brain surgery on oneself and concluding that comments "did not ridicule, or in any manner impugn [defendant's choice of self-representation"); see also Ganther v. State, 187 S.W.3d 641, 649, 650 (Tex. App-Houston [14th Dist] 2006, pet. refd) (listing comments by trial court to jury panel that defendant had chosen to represent himself and that there is saying "that the lawyer who defends himself has a fool for a client" and concluding that comments did not ridicule or impugn choice of self-representation when considered in context in which they were made).
For these reasons, we conclude that the trial court did not violate Webb's right to self-representation and, therefore, overrule his fourth issue on appeal.
Cumulation Order
In a supplemental brief following the reinstatement of this case, Webb argues in his fifth and sixth issues that the order stacking his fifty-year sentence in this case onto his prior punishment in another aggravated-robbery case should be deleted. See Tex. Code Crim. Proc. art. 42.08 (authorizing cumulative or concurrent sentences). In his fifth issue, he asserts that the trial court's new written judgment of conviction issued after the abatement conflicts with the oral pronouncement of punishment. Specifically, Webb highlights that the new written judgment includes a stacking order but emphasizes that during the hearing on remand, the trial court did not mention having the punishment run consecutively. Webb contends that if a trial court desires to have sentences run consecutively, it must make that order when the sentence is orally pronounced. Alternatively, in his sixth issue, Webb contends that the cumulation order needs to be deleted because the record in this case indicates that he was on parole at the time of his sentencing, because nothing in the record shows that his parole had been revoked, and because it was, therefore, improper to stack his sentence in this case onto his prior one.
As referenced by Webb in his sixth issue, an investigating detective testified that approximately one month after the alleged offense in question, a patrol officer informed him that the officer had arrested Webb for a parole violation. Additionally, the detective clarified that a warrant for Webb's arrest due to a parole violation meant that Webb had made parole and been released from prison. The detective explained that Webb was on parole for a prior aggravated-robbery conviction and that after Webb was arrested for the parole violation, he was transferred to jail. Although the detective mentioned Webb's being on parole multiple times and being arrested for a parole violation, nothing in the remainder of the record indicates that Webb's parole had been revoked.
Article 42.08 of the Code of Criminal Procedure governs the procedure by which trial courts may order consecutive sentences. Id. If a defendant "has been convicted in two or more cases," the trial court has the discretion to decide whether the punishments for "the second and subsequent convictions . . . begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate" or "run concurrently with the other case or cases." Id. art. 42.08(a). Appellate courts review a trial court's decision regarding whether to stack a sentence onto a prior one for an abuse of discretion. See Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016). Provided that the law authorizes the imposition of a cumulative sentence, "the trial judge has absolute discretion to cumulate sentences." Id. (quoting Smith v. State, 575 S.W.2d 41, 41 (Tex. Crim. App. 1979)). Stated differently, if the law requires concurrent sentences, a trial court abuses its discretion by imposing consecutive sentences. Id. at 446-47.
In Byrd v. State, the Court of Criminal Appeals addressed the following question: "if a defendant commits a second offense while on parole for a first offense, is the trial court able to stack the second sentence on top of the first sentence if the defendant's parole on the first offense has not been revoked before he is sentenced on the second offense?" Id. at 445. When answering this question, the Court explained "that a sentence 'ceases to operate' when a defendant 'makes parole'" or serves his sentence in full, but the Court clarified "that a defendant who had been on parole can still be considered to have not 'made parole' if his parole is revoked." Id. at 447 (construing statutory provisions and governing case law). From the preceding, the Court concluded that if a defendant's parole on a prior offense is revoked "before that defendant is sentenced on the second offense, then . . . the second sentence may be stacked on top of the first sentence." Id. at 451. Further, the Court determined that if a defendant's parole on a prior offense has not been revoked "before that defendant is sentenced for the second offense, then the second sentence may not be stacked on top of that first sentence" because the "first sentence had already ceased to operate" when the defendant made parole. See id. Additionally, the Court reasoned that "the State has the burden to present evidence to support the proper cumulation of the sentences," including if applicable, "proof that [a defendant's parole . . . had been revoked prior to sentencing" in a subsequent case. See id.
Regarding the facts of that case, the Court determined that the defendant's prior sentence "had already 'ceased to operate' when he was sentenced in this case," meaning "that there was no earlier sentence still in operation upon which to stack these sentences." Id. at 448. In light of the preceding, the Court determined that the trial court's cumulation order "was invalid" and reformed the trial court's judgment "to delete the cumulation order" "because there was no evidence that appellant's parole had been revoked at the time he was sentenced on his second offense." Id. at 445.
The facts in this case are similar to those in Byrd. In this case, evidence showed that Webb was on parole for the prior offense when he was sentenced, and nothing in the record indicates that his parole had been revoked by the time that he was sentenced. As in Byrd, there was no earlier sentence that was still in effect for the trial court to stack on a new punishment. See id. at 448; see also Caballero v. State, No. 12-16-00191-CR, 2017 WL 6523106, at *6 (Tex. App - Tyler Dec. 21, 2017, no pet.) (mem. op., not designated for publication) (determining that cumulation order was invalid "[b]ecause there is no evidence that Appellant's parole had been revoked at the time he was sentenced in this case"). Accordingly, we conclude that the trial court abused its discretion by including a cumulation order in its written judgment, sustain Webb's sixth issue on appeal, and modify the trial court's written judgment to delete the cumulation order. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Having sustained Webb's sixth issue, we need not address his fifth issue seeking the same relief. See Tex.R.App.P. 47.1.
CONCLUSION
Having sustained Webb's sixth issue but having overruled the remainder of Webb's issues on appeal, we modify the trial court's written judgment to delete the cumulation order and affirm the trial court's judgment of conviction as modified.
Modified in Part, and as Modified, Affirmed.
[*] Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).