Wolfe v. State

1

Matthew Wolfe, Appellant v. The State of Texas

No. 02-22-00132-CR

Court of Appeals of Texas, Second District, Fort Worth

July 6, 2023

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from Criminal District Court No. 1 Tarrant County Texas Trial Court No. 1691858D

Before Kerr, Bassel, and Wallach, JJ.

MEMORANDUM OPINION

Dabney Bassel Justice

I. Introduction

In five points, Appellant Matthew Wolfe challenges his six convictions for aggravated kidnapping, burglary, aggravated robbery, two counts of aggravated assault, and injury to an elderly individual. In his first point, Appellant contends that he was denied the right to act as his own counsel. We rule against Appellant on this point because he failed to timely assert his right to self-representation. In his remaining four points, Appellant contends that multiple punishments are being imposed upon him in violation of the prohibition against double jeopardy. The State concedes the merit of three of Appellant's points, and we agree.^[1] For each of those points, we will retain the most serious of the convictions for which Appellant received multiple punishments in violation of the prohibition against double jeopardy. With respect to the remaining point-number four-we disagree that Appellant received multiple punishments for the same offense in violation of the prohibition against double jeopardy. Accordingly, we vacate three of the trial court's judgments and affirm the remaining three judgments.

II. Factual and procedural background

The underlying facts of the offenses committed have only a tangential impact on the points that Appellant raises. Thus, we detail those facts, which occurred on July 7, 2021, only to the extent summarized in Appellant's brief:

Appellant was staying with a friend at her apartment in Tarrant County. Across from her apartment lived the complainant, a 62-year-old man, his daughter[,] and his granddaughter. According to the complainant, Appellant asked to borrow his car[,] and when he declined, Appellant followed him into his apartment and began assaulting him. According to Appellant, he saw the complainant leaning over his naked grandchild in a concerning way[,] causing Appellant to enter the apartment to protect the child. Appellant had been the victim of sexual abuse as a child and was triggered by the complainant's behavior with the unclothed child.

Appellant [dragged] the complainant to his friend's adjacent apartment, shut the door, locked it[,] and continued to assault the complainant, kicking him and hitting him with a cooking pot. Appellant then took the complainant's car keys and left the location in his car. [Record references omitted.]

The jury convicted Appellant of the following offenses and assessed the following punishments:

• aggravated kidnapping with a deadly weapon-25 years;

• burglary of a habitation-25 years;

• aggravated robbery with a deadly weapon-25 years;

• aggravated assault with a deadly weapon causing bodily injury-40 years;

• aggravated assault by threat with a deadly weapon-40 years; and • injury to an elderly individual-40 years.^[2]

The trial court signed judgments reflecting the jury's verdicts on guilt and punishment after sentencing Appellant in accordance with the verdicts. The trial court also ordered that Appellant's sentences would run concurrently. Appellant timely filed a notice of appeal and then filed a "Motion for New Trial and Motion in Arrest of [Judgment]" that was overruled by operation of law.

III. Analysis

A. We overrule Appellant's first point because he was not improperly deprived of the right to self-representation.

In Appellant's first point, he claims that the trial court "violated Faretta^[3] and Appellant's state and federal rights of self-representation." Appellant made no clear and unequivocal request to self-represent until it was too late to invoke that right.

1. We summarize the three chapters that chart the story of Appellant's self-representation claim.

a. The first chapter

The first chapter occurred approximately six weeks before trial at a pretrial hearing presided over by a magistrate. The concern expressed by Appellant at the pretrial hearing was that his counsel was the son of a Tarrant County District Judge who had accepted a plea bargain from Appellant and had sentenced him to prison almost two decades earlier. Appellant expressed the nature of the problem and his thoughts on how to solve the problem as follows:

Your Honor, I believe that there may be a conflict of interest due to the fact that Mr. Salvant has a relative that sentenced me to prison for 12 years back [in] 2002 -- 2003. I explained this to my attorney, Mr. Salvant. It was brought to my attention, you know, that it was a conflict of interest by another attorney that I've talked to. And at this point, I'm asking for a little time to either hire a new attorney or to essentially maybe have another one appointed. [Emphasis added.]

The trial court indicated that it did not see a conflict and told Appellant that he could hire a new lawyer if he wanted and that it was late in the process to bring up Appellant's concern. Appellant never asserted a right to self-representation during the pretrial hearing.

b. The second chapter

The second chapter of the story occurred on the morning before voir dire was conducted. At the request of his counsel, Appellant testified about his ongoing concern that a conflict of interest existed between his present counsel and him. Again, the conflict centered on the fact that his counsel's father had sentenced him to prison. When Appellant reiterated his concern, he made a passing mention of representing himself:

I was informed by another lawyer that that definitely is a conflict of interest. And upon me getting able to be able to work again and speaking with you in-person where I actually got down there to the office, you^[4] agreed with me that it was . . . a conflict.

So essentially that let me put a couple of options to hire an attorney, have another one appointed[, ] or represent myself. I was told that . . . one particular attorney, she had told me that there was no way she could prepare for trial within the time allotted. And the last time that I . . . spoke to you, you said the last time we came to court, which was yesterday, is that we were going to get it on record and just try to get it figured out, or we could, you know, proceed on. [Emphases added.]

The trial court (now presided over by the court's elected judge) ruled that there was no conflict. Appellant's counsel then sought a continuance, which was denied.

c. The third chapter

The third chapter occurred during the trial (which was being conducted by a visiting judge) after the State had rested. This third chapter began when Appellant's counsel informed the trial court that he could not announce ready to present the defense's case because Appellant had given him a list of seven witnesses whom he wanted to testify, and Appellant's counsel sought a continuance to locate and subpoena the witnesses. The trial court implicitly overruled the motion for continuance but gave Appellant's counsel ten minutes to talk with Appellant. After a discussion, Appellant's counsel indicated that Appellant wanted to address the court. The trial court noted that the proceeding was at "midtrial," that the State had presented all of its evidence and had rested, and that the jury was in the jury room.

Appellant reiterated his complaints about a conflict of interest with his counsel and then told the trial court that he was dissatisfied with his lawyer's performance for apparently not cross-examining witnesses as he thought they should be and for not calling certain witnesses. Appellant stated that he wanted his present counsel removed from the case and a new lawyer appointed or to represent himself. This produced a discussion with the trial court regarding whether Appellant was equivocal in the desire to represent himself. As the discussion continued, Appellant then raised an additional complaint that his present lawyer's investigator was Appellant's former parole officer.

After the trial court told Appellant that the case would proceed that day, the trial court again asked if Appellant wanted to represent himself, and he said that he did. The trial court then began interrogating Appellant on his level of knowledge and describing the pitfalls of self-representation. The hearing continued with Appellant's stating that he had no choice but to represent himself because of the allegedly subpar representation that he had received to that point.

When again confronted with the fact that the trial would proceed and asked whether he still wished to waive his attorney, Appellant responded tentatively in response to when he could proceed:

THE COURT: Okay. Well, ultimately, . . . it's up to you. You've . . . got to freely and knowingly waive your right to an attorney.

Are you willing to do that?

[APPELLANT]: I am.

THE COURT: And would you be doing so understanding that you're going to proceed today? Is that what you're asking the [c]ourt to do?

[APPELLANT]: I don't know if . . . I could proceed today. I don't have the pertinent information in front of me to be able to understand if I have enough time to be able to answer that question.

THE COURT: Okay.

[APPELLANT]: I would like, in the very least, to be able to get my hands on, you know, the court records, pertinent paperwork that I need to . . . adequately represent myself.

THE COURT: Okay. So it sounds like there would be a considerable delay involved?

[APPELLANT]: I don't think that there would be a considerable delay. I think that in order to answer that question with honesty and respect to you, I would have to . see what was in front of me before I could

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