

Opinion filed September
27, 2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00272-CR 
                                                    __________
 
      TROY ROBINSON A/K/A
TROY O’NEAL ROBINSON, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 350th District Court
 
                                                            Taylor
County, Texas
 
                                                    Trial
Court Cause No. 9453-D
 

 
O
P I N I O N
            Following
a plea of not guilty, appellant, Troy Robinson a/k/a Troy O’Neal Robinson, was
convicted by a jury of delivery of cocaine in a drug-free zone.  At the
punishment phase, appellant pleaded true to two prior felony convictions.  The
trial court assessed punishment at confinement for a term of forty years.[1]
            Appellant
presents four issues on appeal.  In his first and third issues, appellant asserts
that the trial court abused its discretion by denying appellant’s request to
represent himself and by denying his motion for new trial.  In his second issue,
appellant challenges the legal sufficiency of the evidence to support a finding
of a drug-free zone.  In his final issue, appellant argues that the cumulative
harm of the errors denied him a fair trial.  We affirm.
Background
Facts
            Officer
Ken Robinson worked undercover in the Special Operations Division of the
Abilene Police Department, making controlled purchases of narcotics.  Officer
Robinson contacted appellant and his son, Justin Robinson, on December 28,
2009.  Two days later, Officer Robinson contacted Justin and arranged to buy
cocaine in the parking lot at the intersection of 12th Street and Grape
Street.  There was a small shopping center there, and Franklin Middle School was
located a block away.
            Officer
Robinson saw appellant arrive; Justin was in the passenger seat.  When Officer
Robinson pulled over to appellant’s car, appellant stepped out of the vehicle
and opened the hood.  Appellant told Officer Robinson that the cocaine was
inside a cup placed on the ground. Officer Robinson refused to get out of the
vehicle; appellant picked up the cup and drove to the back of the building. 
There, Officer Robinson pulled up next to Justin, who was still in the
passenger side.  Justin handed him the cup with the drugs in exchange for $150.
            Appellant
was indicted on two counts of delivery and possession of more than one gram but
less than four grams of cocaine within 1,000 feet of a school.  For enhancement
purposes, the indictment included two prior felony convictions for burglary of
a building.  The jury found appellant guilty of count one of the indictment and,
in answer to a special issue in the jury charge, found the offense was committed
in a drug-free zone.  Appellant elected to have the trial court assess
punishment.  Appellant pleaded true to the enhancement allegations, and the
trial court assessed punishment at confinement for forty years.  The trial
court denied appellant’s motion for new trial after hearing evidence on the
motion.
Sufficiency
of the Evidence
            In
his second issue, appellant argues that the evidence is insufficient to support
the jury’s finding that the offense of delivery of cocaine occurred in a
drug-free zone.  We review a sufficiency of the evidence issue, regardless of
whether it is denominated as a legal or factual claim, under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979).  Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State,
337 S.W.3d 286, 288­–89 (Tex. App.—Eastland 2010, pet. ref’d).  Under the Jackson
standard, we review all of the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found,
beyond a reasonable doubt, that Franklin Middle School was a school as defined
in the jury charge.  Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010).  We afford almost complete
deference to the jury’s determinations of credibility and resolve any
inconsistencies in the evidence in favor of the verdict.  Jackson, 443
U.S. at 326; Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App.
2008); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Curry
v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
            Appellant
argues that there was insufficient evidence that Franklin Middle School was a
school as defined in the jury charge because, at the time of the offense,
Franklin Middle School was not in operation.  The trial court’s charge to the
jury gave the following definitions:
            “Drug
Free Zone” means in, on, or within one thousand feet (1,000') of the premises
of a school.
 
            “Premises”
means real property and all buildings and appurtenances pertaining to the real
property.
 
            “School”
means a private or public elementary or secondary school.
 
            Because
the State must prove the offense occurred within 1,000 feet of a “school” for
the evidence to be legally sufficient, we must define “school” before reviewing
the evidence.  When construing a statute, we give effect to the plain meaning
of the text where possible.  Clinton v. State, 354 S.W.3d 795, 800 (Tex.
Crim. App. 2011).  The applicable statute defines a “school” as a private or
public elementary or secondary school.  Tex.
Health & Safety Code Ann. § 481.134(a)(5) (West Supp. 2012). 
Black’s Law Dictionary defines “school” as “[a]n institution of learning and
education.”  Black’s Law Dictionary
1463 (9th ed. 2009).  Neither the dictionary nor the statutory definition of
“school” depends on the school being currently in session.  Therefore, the
plain language of the statute makes apparent that a person need only deliver a
controlled substance within 1,000 feet of a school (or its premises) to have
committed the offense in a drug-free zone.  “[T]he name of the premises alone
may be sufficient to raise a presumption that it is a private or public
elementary or secondary school.”  Young v. State, 14 S.W.3d 748, 754
(Tex. Crim. App. 2000).  In Young, two officers testified that the
premises in question were those of a school, and one of the officers testified
to the distance between the premises and the offense.  Id. at 753–54.
            To
prove appellant delivered cocaine within a drug-free zone, the State elicited
testimony from three police officers involved in the undercover operation.  Officer
Robinson purchased the cocaine and described the location where he met appellant
and Justin, stating “[t]here is a school just a block west, Franklin Middle
School.”  Officer David “D.D.” Gray testified that the actual distance between
the school and the location of the offense was approximately 228 feet.  David
Gage, a former sergeant with the Abilene Police Department, worked as part of
the undercover team.  On direct examination, he stated that Officer Robinson
and appellant were “between the old Franklin Middle School and the shopping
center.”  Gage further verified that Franklin Middle School was still owned by
the school district, even though it was not in use.  As the factfinder, the
jury was the exclusive judge of the facts, the credibility of the witnesses,
and the weight to be given to the testimony.  Brooks, 323 S.W.3d at 899;
Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008).  The jury
was free to believe or disbelieve all or any part of the testimony.  Beardsley
v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).  We conclude a
rational jury could have determined beyond a reasonable doubt that Franklin
Middle School was a school as defined in the jury charge.  Appellant’s second
issue is overruled.
Right
of Self-Representation
            In
his first issue, appellant complains that he did not effectively waive his
right to self-representation.  The State contends that appellant never made a
clear and unequivocal assertion of that right, and even if he did, appellant
withdrew his request.  We review the factual issue of whether a defendant has
clearly and unequivocally invoked the right to self-representation for an abuse
of discretion.  DeGroot v. State, 24 S.W.3d 456, 457–58 (Tex.
App.—Corpus Christi 2000, no pet.).  We view the evidence in the light most
favorable to the trial court’s ruling and will imply any findings of fact
supported by the record.  Chadwick v. State, 309 S.W.3d 558, 561 (Tex.
Crim. App. 2010).
            A
defendant in a state criminal trial has a constitutional right to proceed
without counsel when he voluntarily and intelligently elects to do so.  U.S. Const. amend. VI; Tex. Const. art. I, § 10; Faretta v.
California, 422 U.S. 806, 819 (1975); Williams v. State, 252 S.W.3d
353, 356 (Tex. Crim. App. 2008).  This right of self-representation is implicit
in the Sixth Amendment, but it is not absolute.  Faretta, 422 U.S. at
834 n.46.  The defendant must clearly and unequivocally assert the right to
self-representation, thereby waiving the right to counsel guaranteed by the
Sixth Amendment.  Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App.
1992); Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986); see
Brewer v. Williams, 430 U.S. 387, 404 (1977) (holding that courts must
consider every reasonable presumption against waiver of counsel).  Once
asserted, the trial court must advise the accused of the consequences of
self-representation.  Blankenship v. State, 673 S.W.2d 578, 583 (Tex.
Crim. App. 1984).  If, after the trial court’s admonishments, the accused
elects to continue pro se, he should be allowed to do so provided the asserted
right to self-representation is unconditional and not asserted to disrupt or
delay proceedings.  Id. at 585.
            After
asserting his right to self-representation, a defendant may waive it by his subsequent
conduct.  Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982)
(citing Chapman v. United States, 553 F.2d 886, 893 & n.12 (5th
Cir. 1977)).  The trial court may find a waiver of the right where it
reasonably appears that the defendant has abandoned his initial request to
represent himself or is vacillating on the issue.  Id.
            Appellant
argues he did not effectively withdraw his request for self-representation.  We
disagree.  The record shows the trial court appointed an attorney to represent
appellant, but appellant subsequently submitted two motions pro se—a motion to
dismiss counsel and a motion for self-representation.  In his motion for self-representation,
appellant only requested hybrid representation: to appear “partially pro se and
partially by counsel.”[2]
 The trial court held a hearing on the matter, during which it admonished
appellant according to the requirements in Faretta, to determine whether
appellant was “clearly and unequivocally” asserting his right to represent
himself knowing of the dangers and disadvantages.  See Tex. Code Crim. Proc. Ann. art.
1.051(g) (West Supp. 2012); Williams, 252 S.W.3d at 356; Funderburg,
717 S.W.2d at 642.  During the hearing, appellant vacillated on the issue
before ultimately consenting to representation:
            THE
COURT: All right.  Mr. Robinson, I understand that you wish to represent
yourself and you do not wish [to] go forward with an attorney.  Is that
correct?
 
            THE
DEFENDANT: Yes, sir, but I would like to have me a standby attorney.
 
            THE
COURT: All right.  Now, the law says -- of course, you are entitled to that.  The
law, though, requires that I make an inquiry of you that is fairly extensive
before I decide on that request.  You understand that, sir?
 
            THE
DEFENDANT: Yes, sir. 
 
            . . . .
 
            THE
COURT: Do you wish to have [counsel] represent you?
 
            THE
DEFENDANT: If he gonna act right, if he gonna do the right thing.
 
            . . . . 
 
            THE
COURT: So we are here again, one last time, do you want [counsel] to represent
you at trial, or do you want to go forward on your own with just him sitting as
a -- to give you advice when you ask him during trial?
 
            THE
DEFENDANT: (Crying.)  I guess I’ll let him represent me.
 
Appellant’s
dissatisfaction with appointed counsel and his request for hybrid
representation did not establish a clear and unequivocal assertion of his right
to self-representation.  See Saldaña v. State, 287 S.W.3d 43, 55 (Tex.
App.—Corpus Christi 2008, pet. ref’d); Cain v. State, 976 S.W.2d 228,
235–36 (Tex. App.—San Antonio 1998, no pet.).  Viewing the motion and the
hearing as a whole, appellant did not clearly and unequivocally assert his
right to self-representation.  Appellant requested standby counsel and
subsequently withdrew that request, consenting to representation by appointed
counsel.  In the absence of a clear and unequivocal assertion of his right to
self-representation, the trial court did not abuse its discretion in denying
appellant’s request.  Appellant vacillated on the issue and ultimately chose
representation.  Appellant’s first issue is overruled.
Denial
of Appellant’s Motion for New Trial
            In
his third issue, appellant argues that the trial court erred in denying his
motion for new trial.  After hearing evidence on his motion, the trial court
denied the motion.  We review a trial court’s ruling on a motion for new trial
for an abuse of discretion.  State v. Herndon, 215 S.W.3d 901, 906–07
(Tex. Crim. App. 2007).
            Appellant
contends that the prosecution prevented a material witness, Justin, from
testifying.  Under Rule 21.3(e) of the Texas Rules of Appellate Procedure, a
defendant must be granted a new trial “when a material defense witness has been
kept from court by force, threats, or fraud.”  Tex. R. App. P. 21.3(e).  However, there is nothing in the
record suggesting the prosecution breached its duties.  See Tex. Code Crim. Proc. Ann. art. 2.01 (West
2005) (a district attorney “shall not suppress facts or secrete witnesses
capable of establishing the innocence of the accused”).  Appellant’s son
invoked his Fifth Amendment right and did not testify at appellant’s trial.  A
prosecutor risks reversible error by calling a witness who has invoked the privilege.
 See Namet v. United States, 373 U.S. 179, 188–89 (1963).  A defendant
has no right to have a witness assert his Fifth Amendment privilege against
self-incrimination in the presence of the jury.  Ellis v. State, 683
S.W.2d 379, 382 (Tex. Crim. App. 1984).  Neither the prosecution nor the
defense could call Justin to testify once he invoked his right against
self-incrimination.
            At
the hearing on the motion for new trial, appellant questioned the prosecutor
regarding the plea bargain offered to Justin.  The prosecution admitted to
withholding a final plea agreement until hearing Justin’s testimony at
appellant’s trial.  Such actions are within the broad discretion of the
prosecution.  See Wayte v. United States, 470 U.S. 598, 607–08 (1985); Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978).  We view the evidence in the light most
favorable to the trial court’s ruling and find an abuse of discretion only when
no reasonable view of the record could support that ruling.  Holden v. State,
201 S.W.3d 761, 763 (Tex. Crim. App. 2006).  Appellant has failed to show that the
trial court abused its discretion when it denied his motion for new trial. 
Appellant’s third issue is overruled.
Cumulative
Error Doctrine
            Appellant
argues in his last issue that the cumulative effect of the errors resulted in
an unfair trial.  We have found no errors affecting appellant’s substantial
rights.  While a number of errors may be harmful in their cumulative effect,
non-errors cannot in their cumulative effect cause error.  Chamberlain v.
State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).  
            Appellant
argues in the alternative that the prosecutor improperly questioned him on
cross-examination in violation of Texas Rule of Evidence 609(b) because the
prosecutor asked him about prior felony convictions that were over ten years
old. Tex. R. Evid. 609(b).  Appellant did not
preserve this complaint for appeal.  To preserve a complaint for our review, a
timely and specific request, objection, or motion is required.  Tex. R. App. P. 33.1(a)(1); Layton
v. State, 280 S.W.3d 235, 238 (Tex. Crim. App. 2009).  Moreover,
appellant’s argument is without merit.  Once appellant took the witness stand
in his own defense, he was subject to the same rules as any other witness and
could be “impeached, contradicted, made to give evidence against himself,
cross-examined on new matters, and treated in every respect as any other
witness.”  Harper v. State, 930 S.W.2d 625, 630–31 (Tex. App.—Houston [1st
Dist.] 1996, no pet.).  Appellant’s counsel opened the door to the prosecutor’s
line of impeachment questioning when his counsel asked whether appellant had
“prior problems with the law.”  Appellant’s fourth issue is overruled.
This
Court’s Ruling
             The
judgment of the trial court is affirmed.
            
                                                                                    
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
September 27, 2012
Publish.  See Tex. R. App. P. 47.2(b).
Panel[3]
consists of: Wright, C.J.,
McCall, J., and Hill.[4]
 


 
Opinion filed September
27, 2012











                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00272-CR
                                                    __________
 
      TROY ROBINSON A/K/A
TROY O’NEAL ROBINSON, Appellant
                                                             V.
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 350th District Court
                                                            Taylor
County, Texas
                                                    Trial
Court Cause No. 9453-D
 

 
D I S S E N T I N G   O P I N I O N
I
respectfully dissent because a rational jury could not have determined beyond a
reasonable doubt that a building owned by a school district, which had formerly
been used as a middle school but which was not being used as a school at the
time of the offense, was a school, where there was no evidence as to whether
the non-use of the premises as a school was permanent or temporary.  As the
majority notes, “school” is defined as a private or public elementary or
secondary school.  The only reasonable conclusion one can reach is that a
building that is a former school that is not being used as a school at the time
of the offense is not a school for purposes of the drug-free zone section
relied upon in this case, unless its non-use is temporary, such as for a
recess or holiday.  
In
reaching the conclusion that the jury could have reasonably determined that the
building in question was a school, the majority relies upon the opinions in Young
v. State, 14 S.W.3d 748, 754 (Tex. Crim. App. 2000); Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008); and Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987).  I find all of these cases to be
distinguishable.
            In Young,
the court held that the evidence was sufficient to show that the location in
question was near a school where two officers testified that the premises in
question was a school and a map was presented showing that the offense was
committed near a school.  Young, 14 S.W.3d at 753–54.  While, as noted
by the majority, the Young court held that the name of the premises
alone might be sufficient to create a presumption that it is a school, in this
case the State presented evidence that rebutted such a presumption by eliciting
testimony that the building was still owned by the school district even though
it was not being used “at that moment.”  In Young, no evidence was
presented that would show the premises in question was not being used as a
school at the time of the offense.
            The
other cases cited are cases that show that we, as the reviewing court, are to
defer to the jury’s credibility and weight determinations.  Brooks, 323
S.W.3d at 899; Bartlett, 270 S.W.3d at 150 n.5; Beardsley, 738 S.W.2d
at 684.  I agree with these courts that we are required to give such deference
to the jury’s verdict.  However, the test for determining the sufficiency of
the evidence requires that we not give such deference where, as here, a
rational factfinder could not have made the determination it made beyond a
reasonable doubt.  Neither Robinson nor the State developed evidence from which
one could reasonably determine whether Franklin Middle School was a school at
the time in question.   Instead, after two officers testified that Franklin
Middle School was a school within the proper distance, a third officer, a
police sergeant, testified that the building was still owned by the school
district but was not being used as a school “at that moment.”  This testimony
showed that the building, although known as Franklin Middle School as shown by
the testimony of the other two officers, was not in use as a middle school or
any other school at the time of the offense.  The State presented no testimony
showing that the third officer was mistaken or that the non-use was temporary. 
I would suggest that where, as here, the State presents evidence that appears
to clarify the status of the premises as not being a school, without presenting
further evidence showing that the premises is a school, the finder of fact
cannot reasonably determine, beyond a reasonable doubt, that the premises is a
school.  I would note that Brooks, Bartlett, and Beardsley did
not involve a sufficiency of the evidence issue in a drug-free zone case.
            I
agree with the majority’s suggestion that a school need not necessarily be in
session at the time of an offense in order to be a school for the purpose of
determining whether an area is a drug-free zone.  However, while this offense
occurred on or about December 30, 2009, which could have been during a holiday
period, the officer’s testimony was that the school was not in use as a school
at that time.  There was no suggestion that its non-use at the time in question
was because of a school holiday or other recess.  I would submit that there is
a difference between a school that is temporarily not in session because of a
recess, such as a summer recess, or a holiday period, and one that is not in
use as a school.
            The
State appears to suggest in its brief that the jury could reasonably find that
the premises was a school because the definition of “school” in Section 481.134
of the Texas Health and Safety Code makes no requirement that the school be
open.  Tex. Health & Safety Code
Ann. § 481.134 (West Supp. 2012).  However, I would suggest that a
premises formerly used as a school, but no longer in use as a school, is not a
school unless the non-use is shown to be temporary.  The word “school” has
several definitions, including “an institution where instruction is given,
especially to persons under college age” and “a building housing a school.”  See
Dictionary.Com, http://dictionary.reference.com/browse/school?s=t.
 Neither of these definitions appears to include either an institution
where instruction is not given or a building that is not housing a school.
            ow
Because
I find that a rational jury could not have determined beyond a reasonable doubt
that the premises in question was a school, I would sustain Robinson’s second
issue.
 
                                    
September 27,
2012                                                                JOHN G.
HILL
Publish.  See
Tex. R. App. P. 47.2(b).                                              JUSTICE
Panel[5]
consists of: Wright, C.J.,
McCall, J., and Hill.[6]




[1]We note that the judgment incorrectly states that the
jury assessed appellant’s punishment.  The record reflects that the trial court
assessed punishment.


[2]The Texas Court of Criminal Appeals has held that there
is no constitutional right in Texas to hybrid representation; however, a trial
court has the discretion to allow standby counsel.  Landers v. State,
550 S.W.2d 272, 280 (Tex. Crim. App. 1977) (op. on reh’g); Webb v. State,
533 S.W.2d 780, 784 n.2 (Tex. Crim. App. 1976); see also McKaskle v. Wiggins,
465 U.S. 168, 183 (1984) (stating there is no constitutional right to hybrid
representation).  


[3]Eric Kalenak, Justice, resigned effective September 3,
2012.  The justice position is vacant pending appointment of a successor by the
governor or until the next general election.
 


[4]John G. Hill, Former Chief Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


[5]Eric Kalenak, Justice, resigned effective September 3,
2012.  The justice position is vacant pending appointment of a successor by the
governor or until the next general election.
 


[6]John G. Hill, Former Chief Justice, Court of Appeals,
2nd District of Texas at Fort Worth, sitting by assignment.


