Opinion
NUMBER 13-17-00055-CR
08-17-2017
ERIC MOSAIS MOJICA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 1 of Caldwell County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Chief Justice Valdez
This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through Ch. 49, 2017 R.S.).
Appellant Eric Mosais Mojica appeals from his conviction of possession of marihuana less than two ounces, a class B misdemeanor. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West, Westlaw through Ch. 49, 2017 R.S.). The jury assessed a punishment of 189 days' confinement with a $2,000 fine. By two issues, appellant contends that the trial court deprived him of his right to self-representation and the evidence is insufficient to prove that he was the same individual named in the judgments of conviction offered and admitted at trial. We affirm.
I. RIGHT TO SELF-REPRESENTATION
By his first issue, appellant contends that he invoked his right to represent himself in the trial court and that the trial court violated his rights under Faretta v. California, 422 U.S. 806 (1975). The State responds that appellant never indicated that he wanted to proceed pro se and instead stated that he would like another trial counsel.
A defendant has the right to represent himself at trial should he voluntarily and intelligently choose to waive his right to counsel. U.S. CONST. amend. IV, IV; TEX. CONST. art. I, § 10; Faretta, 422 U.S. at 819-20. Once a defendant invokes his right to self-representation, a trial court must admonish the defendant on the dangers and disadvantages of proceeding pro se, and determine whether the relinquishment of the right to counsel is knowing and voluntary. Faretta, 422 U.S. at 835. When a defendant asserts his desire to proceed without counsel, the trial court errs if it fails "to give the necessary explanations and warnings before ruling on his request." Birdwell v. State, 10 S.W.3d 74, 78 (Tex. App.—Hous. [14th Dist.] 2000, pet. ref'd). "The right to self-representation does not attach, however, until it has been clearly and unequivocally asserted." Id. at 77.
Appellant cites the following colloquy as supporting his contention.
The Court: The Court then asks for announcements in [trial] Cause No. 45,216: the State of Texas versus [appellant].
[The State]: State's Ready, Your Honor.
[Defense Counsel]: Defense is ready.
The Court: Thank you. The estimate I have from the attorneys is one day to try the matter, is that correct, Counselors?
[The State]: Yes, sir.
[Defense Counsel]: With punishment, maybe two days, Your Honor.
The Court: Okay.
[Appellant]: I fired him.
The Court: All right. And so you're an election for jury punishment?
[Defense Counsel]: I could not get the—
[Appellant]: I fired him.
[Defense Counsel]: —[appellant] to make an election, Your Honor.
[Appellant]: He won't cooperate. He won't do what I want him to do.
The Court: [Appellant—]
[Appellant]: He's flat out refusing to do what I want him to do.
The Court: [Appellant], stop right now. . . . We're going to get an understanding.
[Appellant]: That he works for me, yes. He doesn't understand that.
The Court: If the attorneys, and [appellant], you need to step up here. . . .
. . . .
The Court: . . . .
Now, [appellant], your attorney is [defense counsel]. He was appointed by the Court to represent you.
[Appellant]: Uh-huh.
The Court: He is your attorney.
[Appellant]: Uh-huh.
The Court: There's not going to be any discharge of your attorney today, the date of trial.
Now, you've already had some outbursts, some statements here on the record. I'm going to tell you, we're going to conduct this trial according to the rules and the law. If you disrupt this trial, at any stage of the proceedings, then I am telling you right now, I will hold you in Contempt of Court.
[Appellant]: Let's do that right now, then, and get it over with.
The Court: Listen to what I am telling you. I will hold you in Contempt—
[Appellant]: Let's do that right now and get it over with.
The Court: —of Court. You can go to jail for up to six months and be fined up to $500.
You want a jury trial. You want people from this community to weigh the evidence and make a determination whether you're guilty or not of the offense. That's what we're trying to do for you.
[Appellant]: I also need a lawyer that's going to do what I tell him to do and fight for me. He's incompetent. He's shown it several times over and over again.
The Court: You were delighted to no end when I announced to you—
[Appellant]: Yes, I was because—
The Court: —that he was appointed for you.
[Appellant]: —he was good the first time.
The Court: That's right.
[Appellant]: Now he's not anymore.
The Court: Well, I'm telling you that he is your attorney. He's going to try this case.
. . . .
The Court: [Appellant], what I was asking for is an election on punishment. As a Defendant, you have a choice either to let the jury make a determination of punishment or the Court.
And so I'm going to ask, once again, who would you like to make the determination of punishment in the event you're found guilty?
[Appellant]: Well, I need a lawyer that is going to represent me first so we can get to that.
The Court: All right. That isn't the question I asked you, so the Court—
[Appellant]: Well, we can't get to that until I have a competent lawyer, though.
The Court: Then the Court will acknowledge that it's going to be the jury that assesses punishment in this matter.
All right. You can go have a seat at counsel table, please, with your attorney. Thank you-all. Thank you, Mrs. Mojica.
The trial court also spoke with appellant's mother, Mrs. Mojica during this exchange.
After reviewing the above-described colloquy, we conclude that appellant did not clearly and unequivocally assert his desire to proceed pro se in this case. On the contrary, appellant specifically stated that he desired another lawyer that would "represent" him first, "fight" for him, and who was "competent." We see nothing in this exchange providing the trial court with notice either explicitly or implicitly that appellant desired to represent himself in this cause. Moreover, simply stating that one is dissatisfied with one's trial counsel is insufficient to invoke one's right to self-representation. Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983) ("[A] defendant's request to be relieved of counsel in the form of a general statement of dissatisfaction with his attorney's work does not amount to an invocation of the Faretta right to represent oneself, especially when made on the morning of trial."). Accordingly, the trial court did not err by not providing explanations and warnings concerning self-representation. We overrule appellant's first issue.
II. SUFFICIENCY OF THE EVIDENCE
By his second issue, appellant complains that although the sponsoring witness testified that appellant committed the crimes as described in State's exhibits 4-7, the sponsoring witness failed to provide the basis for his knowledge and "did not testify to any specific identifying features between Appellant and the individual named in the judgments." The State responds that the issue is waived.
At trial, appellant did not object to the admission of State's exhibits 4-7 on the basis he complains on appeal. The sponsoring witness testified that the exhibits "match [appellant's] criminal history," that he was "confident" that appellant was the same individual referred to in the exhibits, that he was "personally familiar" with appellant, and that he did not have any doubt about the authenticity of the exhibits. The State then offered the exhibits for admission, and appellant stated, "No objection, Your Honor." The trial court replied, "State's Exhibit No. 4, State's Exhibit No. 5, State's Exhibit No. 6 and State's Exhibit No. 7 are all admitted into evidence." Appellant did not make any other objections to the exhibits. Therefore, we conclude that appellant waived any objections on the basis that the sponsoring witness failed to provide the basis for his knowledge and "did not testify to any specific identifying features between Appellant and the individual named in the judgments." See Ex parte Russell, 738 S.W.2d 644, 647 (Tex. Crim. App. 1986) (holding that one must make a timely objection about the use of prior convictions admitted as evidence during the punishment phase or the complaint is waived); Logan v. State, 482 S.W.2d 229, 232 (Tex. Crim. App. 1972) (holding that in absence of an objection to the use of prior convictions in the punishment phase of trial, any error is waived).
At trial, when the State offered State's exhibits 4-7, appellant asked, "Your Honor, are these going to be offered into evidence before they're testified to" and the trial court replied, "Yes." Appellant said, "I would object to the testimony," and the trial court sustained his objection. Appellant stated, "They've not been offered into evidence." It is clear from the context of this exchange that appellant objected to State's exhibits 4-7 on the basis that the sponsoring witness testified about the contents of the exhibits that had not been admitted in to evidence.
Appellant also argues that the evidence is insufficient to support a finding that the he committed the prior convictions. However, these prior convictions were not used to enhance appellant's punishment, and were admitted pursuant to article 37.03(a)(1) of the Texas Code of Criminal Procedure, which requires merely that the fact-finder determine beyond a reasonable doubt that the defendant was involved in the acts. See TEX. CODE CRIM. PROC. ANN. art. 37.07(a)(1) (West, Westlaw through Ch. 49, 2017 R.S.). "'We do not review the sufficiency of the evidence of an extraneous offense to support the [fact-finder's] assessment of punishment'" under the Jackson v. Virginia standard of sufficiency of the evidence to prove appellant's culpability. See Thompson v. State, 425 S.W.3d 480, 491 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). "Instead, to satisfy the procedural standard for evidence of extraneous offenses or bad acts, the proponent need only demonstrate 'a defendant's involvement in the act itself, instead of the elements of a crime necessary for a finding of guilt.'" Id. (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). "'Whereas the guilt-innocence stage requires the [fact-finder] to find the defendant guilty beyond a reasonable doubt of each element of the offense, the punishment phase requires' only that the fact-finder 'find that [ ] prior acts are attributable to the defendant beyond a reasonable doubt.'" Haley, 173 S.W.3d at 515. Here, there is sufficient evidence supporting such a finding because the sponsoring witness testified that he was familiar with appellant and his criminal record, the records "matched" appellant's criminal history, and those records were properly admitted into evidence. See id.
Moreover, the jury charge instructed the jury not to consider any extraneous offenses or prior convictions when determining the sentence unless it found beyond a reasonable doubt that appellant committed such offenses. See Thompson v. State, 425 S.W.3d 480, 491 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); Williams v. State, 958 S.W.2d 844, 845 (Tex. App.—Houston [14th Dist.] 1997, pet. ref'd). (explaining that if there is no indication that the fact-finder considered the evidence in assessing punishment, there is no error in admission). We must presume that the jury followed the instruction unless appellant rebuts that presumption. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) ("On appeal, we generally presume the jury follows the trial court's instructions in the manner presented. The presumption is refutable, but the appellant must rebut the presumption by pointing to evidence that the jury failed to follow the trial court's instructions."). Therefore, because appellant has not rebutted that presumption, we must presume that the jury followed the instruction. We overrule appellant's second issue.
III. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this 17th day of August, 2017.