Opinion issued October 4, 2018




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-17-00562-CR
                          ———————————
                 MARK ANTHONY ROBINSON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 19th District Court
                        McLennan County, Texas*
                    Trial Court Case No. 2015-1085-C1


                         MEMORANDUM OPINION

      Appellant Mark Anthony Robinson was convicted of felony assault. TEX.

PENAL CODE § 22.01(b). He chose to represent himself, and he waived his right to

*
      The Supreme Court of Texas, pursuant to its docket equalization authority,
      transferred the appeals from the Tenth Court of Appeals to this Court. See
      TEX. GOV’T CODE § 73.001; Misc. Docket No. 17–9128 (Tex. Sept. 28,
      2017).
a jury trial. The court found him guilty and gave him an enhanced sentence of 15

years in prison and a $2,000 fine due to a prior conviction for a similar offense.

      Robinson raises two issues on appeal. First, he contends that the trial court

violated his constitutional right to present a defense by preventing him from

recalling two of the State’s witnesses during his case-in-chief. Second, he argues

that the trial court violated his due-process right to fundamental fairness by

refusing to allow him to consult with the court-appointed standby counsel during

trial, after telling him that he could do so.

      Because Robinson waived both issues by failing to preserve them for

appellate review, we affirm.

                                      Background

      Mark Anthony Robinson was charged with felony assault. See TEX. PENAL

CODE § 22.01(b). His then-girlfriend, Natasha Washington, claimed that he beat

her at an apartment building in Waco. An eyewitness, Shannon Jennings, called

911 and corroborated Washington’s story.

      After a lengthy admonition by the trial court about the risks of self-

representation, Robinson expressed his desire to represent himself, waiving his

right to an attorney. He likewise attempted to waive standby counsel, but the court

appointed one anyway to give legal advice or to represent him if needed. The trial

court explained the role of standby counsel, telling Robinson: “you can consult


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with him if you wish to, and at any time you wish to have him appointed to

represent you, you have a right to do that. He’s here to give you any legal advice

that you ask for him.” The trial court then stated that the appointed standby counsel

had no duty to answer any of Robinson’s questions.

      On the morning of the trial, the court reaffirmed its instructions regarding

standby counsel, telling Robinson: “Now, from time to time if you need to confer

with [standby counsel], I’ll allow you—we can take a recess and you can talk to

him, but I’m not going to allow him to sit here at the counsel table with you.”

      The State called four witnesses, including eyewitness Shannon Jennings and

the complainant, Natasha Washington, who was being held in the local jail but

appeared pursuant to a subpoena. Robinson cross-examined each of the State’s

witnesses. After he cross-examined Washington, the trial court allowed her to

leave over Robinson’s objection. The court stated that she would be subject to

recall if needed.

      After the State rested, Robinson gave an opening statement. At the

conclusion of his opening statement, he asked to consult with his standby counsel

“real quick.” The trial court denied his request. The day’s proceedings then

concluded with Robinson calling two witnesses to testify.

      The next morning, Robinson attempted to recall Washington, and he

mentioned his interest in recalling Jennings. The court reminded Robinson that he


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already had the chance to—and did—cross-examine both women during the

State’s case the previous day. Robinson explained that he wanted to question

Washington about her criminal history and recent arrest for the purposes of

impeachment. He was also concerned that the prosecutor and Washington’s

defense attorney for another case were coaxing her to be dishonest. The court

refused to recall Washington, pointing out that Robinson had already questioned

her about those matters the previous day, that they were otherwise already before

the court, or that the matters were improper for examination.

      Robinson then asked again to consult with standby counsel. His request was

again denied. Robinson clarified that he had wanted to ask a legal question and that

he believed standby counsel had been appointed for that reason. The trial court

made no further ruling on the matter, nor did Robinson object.

      Robinson then discussed with the trial court the prospect of recalling a few

other witnesses, including Jennings. As with Washington, he sought to discredit

Jennings’s testimony. The trial court pointed out that Robinson already had

covered that subject during his cross-examination the day before. While Robinson

explained that further testimony from Jennings would benefit his case, he did not

formally request to recall her. As a result, the court never made a ruling on that

matter, and Robinson rested his case.

      After closing arguments, the court found Robinson guilty felony assault.


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                                      Analysis

I.    Attempts to recall witnesses

      Robinson argues that by prohibiting him from recalling the eyewitness,

Shannon Jennings, and the complainant, Natasha Washington, during his case-in-

chief, the trial court denied his constitutional right to present a defense. The State

argues that the merits of Robinson’s first issue were not sufficiently preserved for

review.

      For a party to preserve a complaint for appellate review, the record must

show that a complaint was made to the trial court “by a timely request, objection,

or motion” that complies with the rules of evidence. TEX. R. APP. P. 33.1(a)(1)(B).

The trial court then must rule on the objection, or the complaining party must

object to the court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2). Even constitutional

errors may be waived if the complaining party failed to object at trial. Broxton v.

State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). The purpose of requiring an

objection is to put the trial court on sufficient notice to give it the opportunity to

remove the basis of the objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex.

Crim. App. 2000). In certain circumstances, an issue can be preserved even when

the complaining party fails to object. See Proenza v. State, 541 S.W.3d 786, 796

(Tex. Crim. App. 2017). However, Robinson does not argue that in this

circumstance he was excused from the requirement of objecting to preserve error.


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      We conclude that Robinson has waived his first issue by his failure to object

to the trial court’s ruling. A claim of error cannot be preserved for appeal when

there is no objection stating the grounds for the complaining party’s desired ruling

with “sufficient specificity to make the trial court aware of the complaint.” TEX. R.

APP. P. 33.1(a)(1)(A). With respect to both witnesses identified on appeal,

Robinson attempted to express reasons why he should be able to recall the

witnesses, but he actually requested to recall only Washington. He discussed

obtaining further testimony from Jennings with the trial court, but he never

requested to recall her. As a result, the court ruled only on his request to recall

Washington, and Robinson did not object based on his constitutional right to

present a defense.

      Robinson argues that while a self-represented defendant must follow the

same rules of evidence and procedure as an attorney, a court should still “listen

carefully” to a pro se defendant’s statements to “determine what claim he is

making or what relief he is requesting.” However, even giving great latitude to the

meaning of Robinson’s words, he did not say anything that put the court on notice

of a constitutional objection such that the court had an opportunity to correct the

ruling. Therefore, by failing to first raise his constitutional argument in the trial

court, Robinson waived his first issue.




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II.      Refusal to allow consultation with standby counsel

         Robinson also argues that the trial court violated his due-process right to

fundamental fairness by refusing to allow him to confer with his standby counsel

on two occasions. Although Robinson admits that a self-represented defendant has

no constitutional right to standby counsel, he argues that it was fundamentally

unfair for the trial court to tell him standby counsel would be available, only to

later deny him access to the lawyer. The State again argues that Robinson failed to

preserve error.

         The first time Robinson asked to consult his standby counsel, at the

conclusion of his opening statement, he did not object or make any statement on

the record to indicate that he believed his constitutional rights were being violated

when the trial court declined permission to consult with standby counsel. Since

Robinson neither objected nor raised a constitutional issue, he did not preserve

error.

         The second time Robinson asked to consult his standby counsel was during

his case-in-chief, after the trial court refused to allow him to recall Washington and

also denied his request to consult standby counsel. Robinson tried to clarify that he

wanted to ask standby counsel a legal question, but the court denied his request

again. Robinson did not object to continuing with the trial, nor did he raise a

constitutional issue about the fundamental fairness of the court’s ruling. As a


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result, Robinson’s failure to object is determinative, resulting in his waiver of his

second issue.

                                     Conclusion

      Since Robinson has failed to preserve either of his issues for review, we

affirm the judgment of the trial court.



                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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