Hilberto Martinez, Appellant, v. The State of Texas, Appellee.

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Court of Appeals of Texas, Corpus Christi-Edinburg.

Hilberto Martinez, Appellant, v. The State of Texas, Appellee.

NUMBERS 13–15–00445–CR, 13–15–00446–CR

Decided: February 25, 2016

Before Justices Garza, Perkes, and Longoria

MEMORANDUM OPINION

Appellant Hilberto Martinez challenges his convictions on two counts of burglary of a habitation.  See Tex. Penal Code Ann. § 30.02(a) (West, Westlaw through 2015 R.S.).  We affirm.

I. Background

The State charged appellant by indictment with burglarizing a home owned by Cody and Megan Parker on two separate occasions.  See id.  The State alleged in two enhancement paragraphs that appellant had been twice convicted of a felony at the time of the burglaries, elevating the charges from second to first-degree felonies.  See id. § 12.42(b) (West, Westlaw through 2015 R.S.).

Appellant's counsel filed a pretrial motion to withdraw because appellant had sent written correspondence directly to District Attorney Robert Bell seeking a plea agreement.  At a pretrial hearing on counsel's motion, appellant told the court that he was dissatisfied with the quality of his counsel's representation and asked to represent himself so he could agree to a plea bargain calling for him to receive a sixteen-year sentence.  Specifically, appellant said:  “I'm competent enough to plea out to 16 years without [counsel's] assistance.  I still don't want him as my attorney.”  District Attorney Bell replied that the State was no longer offering a plea deal.1  The trial court denied the motion, and the case proceeded to trial.

At a mid-trial hearing outside the presence of the jury, appellant's counsel told the court that appellant “wanted to represent himself” but agreed that it was probably “too late” in the trial to make that request.  Appellant immediately clarified:  “I've got full representation.  I'd just like to cross-examine some of the witnesses.  I'm very competent.”  The trial court denied appellant's request.

The jury returned a verdict of guilty on both counts.  The jury assessed punishment on each count at ninety-nine years in prison and a $10,000 fine.  This appeal followed.

II. Analysis

Appellant argues in his sole issue that the trial court erred by not permitting him to represent himself.

A. Standard of Review and Applicable Law

The Sixth Amendment to the United States Constitution guarantees a defendant the right to representation by counsel and a corresponding right to self-representation.  See U.S. Const. amend.  VI;  Faretta v. California, 422 U.S. 806, 835 (1975);  Hatten v. State, 71 S.W.3d 332, 333 (Tex.Crim.App.2002).  This right is also protected by the Texas Constitution and by statute.  See Tex. Const. art. 1, § 10;  Tex.Code Crim. Proc. Ann. art. 1.051(f) (West, Westlaw through 2015 R.S.)).

The right to self-representation does not attach unless the defendant “clearly and unequivocally” asserts it.  Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App.2008).  The defendant must also timely assert his right before the jury is empaneled.  McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App.1997) (en banc);  O'Brien v. State, No. 01–14–00229–CR, _ S.W.3d. _, _, 2015 WL 9141503, at *24 (Tex.App.—Houston [1st Dist.] Dec. 15, 2015, pet. filed).  We review the factual issue of whether the defendant clearly and unequivocally elected to represent himself for an abuse of discretion.  DeGroot v. State, 24 S.W.3d 456, 457 (Tex.App.—Corpus Christi 2000, no pet.).  Under this standard, we view the evidence in the light most favorable to the trial court's ruling.  O'Brien, _ S.W.3d. at _, 2015 WL 9141503, at *24.

B. Discussion

Appellant argues that the trial court erred by not conducting a hearing on his request at the mid-trial hearing to represent himself.  See Williams, 252 S.W.3d at 356 (explaining the procedure the trial court must follow under Faretta before allowing a defendant to proceed pro se).  We disagree.

Appellant's counsel told the court about appellant's desire for self-representation at a hearing outside the presence of the jury during the guilt phase.2  Appellant immediately clarified to the trial court that he had “full representation” but that he wanted to personally cross-examine some of the State's witnesses.  Taken in context, appellant's request at the mid-trial hearing was not for self-representation but for hybrid representation.  See Robinson v. State, 240 S.W.3d 919, 921 (Tex.Crim.App.2007) (defining hybrid representation “as representation partly by counsel and partly by self”);  see also DeGroot, 24 S.W.3d at 458 (observing that when evaluating whether a defendant's statement was an unequivocal request for self-representation, the statement “cannot be taken alone or out of context”).  The trial court did not abuse its discretion in denying appellant's request because there is no right to hybrid representation.  See Robinson, 240 S.W.3d at 922;  Saldana v. State, 287 S.W.3d 43, 53 (Tex.App.—Corpus Christi 2008, pet. ref'd).

Furthermore, even if appellant made an unequivocal request for self-representation at the hearing, his request came too late.3  The hearing at which appellant made the request came after the jury was empaneled.  See McDuff, 939 S.W.2d at 619 (overruling a similar issue because “appellant's request was long after the jury had been empaneled”);  see also Bansal v. State, 169 S.W.3d 371, 377 (Tex.App.—Beaumont 2005, pet. ref'd) (“The right must be asserted in a timely manner, namely, before the jury is impaneled.”).  Even if appellant unequivocally requested self-representation at the midtrial hearing, the request was untimely and trial court did not abuse its discretion in denying it.  See McDuff, 939 S.W.2d at 619;  Bansal, 169 S.W.3d at 377.

We overrule appellant's sole issue.

III. Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   District Attorney Bell personally prosecuted the case.

2.   The trial court held a hearing outside the presence of the jury to address whether evidence of appellant's arrest on another charge would be admitted and whether appellant's wife would invoke her spousal privilege not to testify against him.

3.   We note that appellant does not argue on appeal that his request at the pretrial hearing to accept a plea agreement without representation by counsel was an unequivocal request for self-representation.

Memorandum Opinion by Justice Longoria