                                    NO. 07-03-0041-CR

                                IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                    JANUARY 31, 2005

                        _________________________________


                      CLARENCE DANIEL PAXTON, APPELLANT

                                             V.

                              THE STATE OF TEXAS, APPELLEE


                        _________________________________

           FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY;

                     NO. 3782; HONORABLE TOM NEELY, JUDGE

                          _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.


                                 MEMORANDUM OPINION


       Clarence Daniel Paxton was convicted by a jury of aggravated robbery over his plea

of not guilty and sentenced to 20 years confinement in the Institutional Division of the Texas

Department of Criminal Justice. He appeals the conviction and sentence. We will affirm

the trial court’s judgment.
       Paxton presents eight points of error. By his points of error one and two, he

contends the required evidence of his intent was legally and factually insufficient. Through

points three and four, he makes the same contentions with respect to the evidence he used

a deadly weapon while committing theft. Points five and six present Paxton’s arguments

he was wrongfully denied his right to represent himself granted by the Sixth Amendment

and the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. By points seven and eight, Paxton contends he was wrongfully denied due

process of law when he was brought before prospective jurors in jail clothes.


       A Hardeman County grand jury indicted Paxton alleging that in that county on or

about July 23, 2002, Paxton did “while in the course of committing theft of property and with

intent to obtain or maintain control of said property, intentionally or knowingly threaten or

place Brett Ramirez in fear of imminent bodily injury or death, and the defendant did then

and there use or exhibit a deadly weapon, to-wit: a firearm.”


       At trial Ramirez testified he was working alone on that date as cashier at a small

grocery store in Chillicothe, Texas, when a person he identified as Paxton entered and

walked about the store. He inquired of Ramirez about the store’s supply of duct tape and

later asked to use the telephone. When Ramirez gave him the phone, Paxton pulled its

cord from the handset,1 pointed a small pistol at Ramirez and said, “Give me your money.”

Ramirez removed cash from both the store’s registers and gave it to Paxton. Ramirez

testified he was fearful during the encounter that Paxton might shoot him, causing him



       1
           The testimony uses the term “headset.”

                                             2
death or injury. He followed Paxton’s instructions to go to the back of the store and, after

he heard Paxton’s vehicle leave, told two entering customers of the robbery and locked the

store.


         Evidence including the testimony of law enforcement officers established that a

Texas highway patrolman stopped Paxton’s vehicle on U. S. Highway 287 outside Vernon

because the vehicle matched the description broadcast over police radio. Examining the

interior of the vehicle with Paxton’s consent, the patrolman found a two-shot .22 caliber

Derringer, which was admitted into evidence and identified by Ramirez as the gun the

robber pointed at him.      Paxton’s vehicle also contained three boxes of .22 caliber

ammunition, and a sports bag in which officers found $903 in cash. While the patrolman’s

attention was directed toward the vehicle’s interior, Paxton left the scene on foot. A search

ensued and he was arrested when he later approached officers. He was seventeen at the

time.


         A written statement prepared by a Texas Ranger and signed by Paxton within hours

of his arrest also was among the evidence. In the statement Paxton admitted actions

consistent with Ramirez’s version of the events. It states, in part, “I had my uncle’s two

shot pistol . . . . I pulled the pistol out of my front right pants pocket. I told the guy can I

have your money please. I felt bad about it. He sat the money on the counter.”


         Paxton’s case at the guilt-innocence phase of trial was developed only through cross

examination. He offered no testimony or other evidence.




                                               3
       In reviewing the legal sufficiency of the evidence, we look at all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Griffin v.

State, 614 S.W.2d 155, 159 (Tex.Crim.App. 1981). The standard for legal sufficiency

review "gives full play" to the jury's responsibility "fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts." Jackson, 443 U.S. at 319; Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.

2003). In a review of the record for factual sufficiency, we consider all the evidence in a

neutral light, and will set aside the verdict if the evidence supporting it, either (1) standing

alone or (2) when weighed against the contrary evidence, is too weak to establish the

elements of the offense beyond a reasonable doubt. The analysis is to answer the single

ultimate question: considering all the evidence in a neutral light, was the jury rationally

justified in finding appellant guilty beyond a reasonable doubt? See Zuniga v. State, 144

S.W.3d 477, 481 (Tex.Cr.App. 2004); Goodman v. State, 66 S.W.3d 283, 285

(Tex.Crim.App. 2001).


                          Points One and Two - Evidence of Intent


       Under point of error one, Paxton argues the trial court erred by denying his motion

for directed verdict because there was no evidence he had any intent to obtain and

maintain control of the “said property” referred to in the indictment. The court’s charge

instructed the jury, in accordance with Penal Code Section 29.02(a), that robbery requires

an “intent to obtain or maintain control of the property,” and, in accordance with Penal Code

                                                 4
Section 6.03(a), that a person acts intentionally, or with intent, with respect to a result of

his conduct when it is his conscious objective or desire to cause the result. See Tex. Pen.

Code Ann. §§ 6.03(a), 29.02(a) (Vernon 2003). The court also instructed the jury that

“property” means a document, including money, that represents or embodies anything of

value. See Tex. Pen. Code Ann. § 29.01(2)(B).


       The jury could infer Paxton’s intent from his acts, words and conduct.            See

Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991), cert. denied 504 U.S.

974, 112 S Ct. 2944, 119 L. Ed. 2d 568 (1992). See also Manrique v. State, 994 S.W.2d

640, 649 (Tex.Crim.App. 1999) (Meyers, J., concurring) (intent almost always proven

through evidence of circumstances surrounding the crime).             Ramirez’s undisputed

testimony, corroborated by Paxton’s own statement, that Paxton took money from Ramirez

at gunpoint, provides legally sufficient evidence that he acted with the intent to obtain or

maintain control of the money. If further evidence of his intent were needed, it is provided

by the evidence he placed the money in a bag in his vehicle and drove away with it.


       Paxton argues in his second point that the evidence of his intent was factually

insufficient, but does not point us to evidence he contends demonstrates the absence of

the required intent. As noted, his written statement says he “felt bad” about his actions.

It also states that as he left the store he “knew” Ramirez was going to call police, and that

as he drove down the highway at 55-60 mph, he “figured” he would get caught. None of

those statements weaken the inference that Paxton acted with the conscious objective of

obtaining or maintaining control of the money. The evidence of his intent to do so is

factually sufficient. Paxton’s first and second points are overruled.

                                              5
                   Points Three and Four - Evidence of Deadly Weapon


       Paxton’s robbery of Ramirez was aggravated, the indictment alleged, because he

used or exhibited a deadly weapon, a firearm. Paxton contends the evidence of his use

or exhibition of a deadly weapon is legally and factually insufficient.


       Penal Code Section 1.07(a)(17) includes a firearm within the definition of the term

deadly weapon. See Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2004); Thomas

v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). Because an object meets the

definition of deadly weapon if it is a firearm, the State “must simply prove at trial that it was

a firearm in fact.” Id. at 620. As noted, the gun was in evidence. During the testimony of

the Texas Ranger, he responded affirmatively to the district attorney’s question whether he

would describe the gun as a firearm. He further testified that the Derringer would shoot a

.22 caliber bullet, and, responding to a question about the capability of a bullet shot from

the gun to cause death or serious bodily injury, stated that to his knowledge more people

are killed with .22s each year than any other caliber.


       A person “uses or exhibits” a deadly weapon under Penal Code Section 29.03(a)(2)

if he employs the weapon in any manner that facilitates the associated felony. McCain v.

State, 22 S.W.3d 497, 502 (Tex.Crim.App. 2000). Again, Ramirez’s undisputed testimony

that Paxton pointed the gun at him, corroborated by Paxton’s own statement, provide ample

evidence from which a rational jury could have found Paxton used or exhibited a firearm

while taking the money from Ramirez.




                                               6
       Again, too, Paxton does not direct us to any contrary evidence. In presenting his

motion for directed verdict to the trial court, Paxton contended there was no evidence the

gun was a “functioning firearm” because officers had not fired the gun.              On cross

examination, the Texas Ranger acknowledged he had not fired the weapon, but stated it

appeared to him to be functional and he did not see anything that would prevent it from

functioning.   The Chillicothe Chief of Police testified he examined the gun when a

patrolman delivered it to him for safekeeping. He broke the weapon open and found it to

be loaded with one round. He also acknowledged he had not fired it. That officers had not

fired the gun is not evidence it would not fire. Examined in a neutral light, the evidence is

not too weak to establish that Paxton used or exhibited a firearm. Thomas, 821 S.W.2d

at 620. See also Adame v. State, 69 S.W.3d 581, 583 (Tex.Crim.App. 2002) (Meyers, J.,

concurring). We overrule points three and four.


                    Points Five and Six - Right of Self-Representation


       After the State’s argument following the close of evidence in the guilt-innocence

stage of the trial, as his appointed counsel began his argument, Paxton interrupted and

asked to “address the court.” The jury was removed, and Paxton advised the court that he

was going to “fire” his attorney, stating also the attorney “has no say in this case from here

on.” The court disallowed Paxton’s effort. Paxton persisted, asserting “by my constitutional

right it’s my choice” and “I have a right to fire my lawyer.”2


         2
           The record indicates that following a consultation, off the record, among Paxton, his
counsel and his family, the trial continued to completion without a renewal of Paxton’s effort
at self-representation. At the hearing on Paxton’s motion for new trial, held several weeks
after trial, in response to the trial court’s question, Paxton stated he was satisfied with his

                                               7
       On appeal Paxton argues the trial court’s action denied his right to represent himself

under the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.

The defendant in a criminal case has the constitutional rights to waive the assistance of

counsel and to represent himself without counsel at trial. See Faretta v. California, 422

U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Johnson v. State, 760 S.W.2d 277

(Tex.Crim.App. 1988). The right of self-representation must be asserted, though, clearly

and unequivocally in a timely manner. “Timely” generally has been held to mean before

the jury is impaneled. See McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App. 1997);

Ex parte Winton, 837 S.W.2d 134, 135 (Tex.Crim.App. 1992); Blankenship v. State, 673

S.W.2d 578, 585 (Tex.Crim.App. 1984). But see Johnson v. State, 676 S.W.2d 416, 419-

20 (Tex.Crim.App. 1984) (assertion of right timely after impaneling of jury but before any

evidence presented to jury).3 Paxton’s assertion of the desire to represent himself, made




lawyer. A handwritten pro se notice of appeal Paxton submitted expressly asked that the
same counsel represent him on appeal.

       3
         At oral submission, Paxton’s counsel made us aware of the memorandum opinion
issued in Wiseman v. State, No. 04-03-00432-CR and No. 04-03-00433-CR, 2004 WL
2289613 (Tex.App.–San Antonio, October 13, 2004, pet. filed). The opinion, citing Burgess
v. State, 816 S.W.2d 424, 428 (Tex.Crim.App.1991) and two other cases on the issue,
discusses the options available to the trial court “when confronted with an accused who
makes an eleventh hour request for change of counsel.” Among those options, the court
notes, if the accused makes an unequivocal assertion of the right of self-representation and
persists after proper admonishment, “the court must allow the accused to represent
himself.” The Wiseman opinion does not suggest the trial court erred by denying Paxton’s
request. Neither the Wiseman opinion nor any of the three cases it cites on this issue
concern the timeliness of the unequivocal assertion. Wiseman asked to dismiss his
attorney on the day of trial, but before trial began. The “eleventh hour” reference is
contained in earlier cases, see, e.g., Burgess, 816 S.W.2d at 428, and clearly is not
intended to override the requirement that the assertion be made timely.

                                             8
for the first time after the evidence was closed, was not timely and the trial court did not err

in refusing it. Points five and six are overruled.


                   Points Seven and Eight - Appearance in Jail Clothes


       Paxton filed a pretrial motion asking the court to direct that he not be brought to the

courtroom for trial wearing jail clothes. No one arranged for civilian clothing for him,

though, and shortly after 8:00 on the first morning of trial, a sheriff’s deputy escorted Paxton

to the courthouse in his jail clothes. Before the jury panel was brought into the courtroom,

the judge heard a defense motion for continuance and, after denying the motion, directed

that Paxton be provided with civilian clothes.4 The sheriff escorted Paxton to a room off the

courtroom, from which he was taken back to the jail while the court met with the panel.


       During the second day of trial, Paxton’s counsel brought to the court’s attention a

motion for mistrial, prepared pro se by Paxton. The motion alleged Paxton walked past the

potential jurors in his jail clothes when he was escorted initially to the courtroom the day

before. The court filed the motion and held a hearing outside the presence of the jury.

Testimony indicated the jury panel was summoned for 9:00 the morning of trial and that

several cases were scheduled. Testimony was consistent that there were several people

in the hallway outside the courtroom both when Paxton was brought into the courthouse

and when he was escorted back to the jail to change clothes. There was conflicting



      4
        While the record does not reflect the court took written action on Paxton’s motion,
the court made its practice regarding the dress of defendants clear, admonishing those
present, “We don’t ever try anybody in jail clothes, not ever, never, so that ought not to . . .
happen again.”

                                               9
testimony concerning whether any of those present at either time were jurors. Paxton and

his aunt both testified there were “a lot” of people in and around the hallway outside the

courtroom, and Paxton said he saw many of the same faces later during voir dire. The law

enforcement officers who testified remembered fewer persons being present when Paxton

was brought in. The Texas Ranger testified he was present at that time and there were “six

or seven” people, none of whom was on the jury. The officers who escorted Paxton from

the courtroom area back to the jail testified there were then 15 to 20 people present. A

constable who was acting as bailiff testified that he was collecting information sheets from

prospective jurors when Paxton was taken from the courtroom, and there were not any

prospective jurors then in the hallway.


       The trial court denied the motion for mistrial, and Paxton argues on appeal that his

due process rights under both the United States and Texas Constitutions were violated

when he was brought before prospective jurors in jail clothes. He cites Randle v. State,

826 S.W.2d 943 (Tex.Crim.App. 1992) and Ephraim v. State, 471 S.W.2d 798

(Tex.Crim.App. 1971).      Those cases establish that requiring a defendant, over his

objection, to go to trial wearing jail clothes violates his rights to a fair trial and to be

presumed innocent. Randle, 826 S.W.2d at 944-45. In those cases, however, there was

no question the defendants were tried in jail clothes. Here, the trial court was not asked

to make a finding on the fact question whether Paxton appeared before jury members in

his jail clothes. Because the evidence heard by the trial court would support a conclusion

that he did not appear before jurors in jail clothes, we view the evidence in the light most

favorable to the trial court’s ruling and assume that was the court’s implicit finding of fact.


                                              10
See State v. Ross, 32 S.W.3d 853, 858 (Tex.Crim.App. 2000); Quinn v. State, 958 S.W.2d

395, 401-02 (Tex.Crim.App. 1997). Such a conclusion requires that we overrule points

seven and eight.


      Having overruled Paxton’s points of error, we affirm the judgment of the trial court.




                                                James T. Campbell
                                                    Justice




Do not publish.




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