Opinion
01-21-00552-CR
08-31-2023
DEREK A ANTHONY, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 17-DCR-076698
Panel consists of Justices Kelly, Hightower, and Countiss.
MEMORANDUM OPINION
Julie Countiss, Justice.
A jury found appellant, Derek A Anthony, guilty of the felony offense of aggravated assault and assessed his punishment at confinement for eighteen years. In his sole issue, appellant contends that the trial court erred in allowing him to waive his right to counsel and exercise his right to self-representation.
See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b).
We affirm.
Background
A Fort Bend County Grand Jury issued a true bill of indictment, alleging that appellant, on or about February 7, 2017, "intentionally or knowingly threatened Jodi Diercks," the complainant, "with imminent bodily injury" and "use[d] or exhibited] a deadly weapon, to-wit: a gun, during the commission of [the] assault." On March 9, 2017, the trial court found appellant indigent and appointed counsel, Troy J. Wilson, to represent appellant in the trial court.
The complainant was married to appellant at the time of the offense.
See id. §§ 22.01(a)(2), 22.02(a)(2).
On March 20, 2017, May 1, 2017, May 24, 2017, and July 5, 2017, Wilson and appellant signed reset forms. On July 5, 2017, the trial court held appellant's arraignment hearing, at which appellant was present with Wilson. Appellant received a copy of the indictment. Wilson stated that appellant was "familiar with what he[] [was] charged with" and Wilson did not believe that appellant had any competency issues. Wilson stated that he had "gone over" with appellant the offense with which appellant was charged. When asked, appellant told the trial court that he was charged with the offense of aggravated assault. Appellant pleaded not guilty to the offense of aggravated assault.
During the arraignment hearing, the trial court also asked appellant "[h]ow far" he went in school, and appellant stated that he had graduated high school and attended college for a while, but he did not graduate. Appellant also told the trial court that he was forty-eight years old and was employed doing "[i]n-house investments" and "day trading." He also was previously "in[] politics." When the trial court asked appellant to explain the role of his attorney, appellant responded: "[T]o bring the truth to you." And appellant explained that the trial court was "[k]ind of like a mediator." According to appellant, the State was "going to do things" and the defense "need[ed] to do things," and the trial court was going to "make sure everything[] [was] going forward . . . smoothly."
On September 27, 2017, the trial court appointed Joyce Phoenix to represent appellant in the trial court. Phoenix and appellant signed a reset form on September 27, 2017, and she met with appellant that day. Phoenix and appellant also signed reset forms on November 15, 2017 and January 22, 2018.
On January 25, 2018, Phoenix filed a motion for competency determination, which was set for a hearing on February 14, 2018. On February 14, 2018, the trial court granted the motion and appointed Dr. Connie Almeida to evaluate appellant for competency and issue a report to the trial court.
Phoenix subsequently filed motions to discover criminal records of witnesses and for production of exculpatory material, disclosure of expert witnesses, and production of a list of the State's witnesses before trial as well as a request for notice of other crimes, wrongs, or acts that the State intended to introduce at trial. On March 7, 2018, Phoenix filed a motion for continuance, seeking to continue the March 12, 2018 trial setting because appellant had not yet reviewed the discovery with Phoenix and appellant was hostile toward Phoenix. On March 8, 2018, Phoenix filed a motion to withdraw as appellant's counsel, stating that appellant had "engaged in conduct contrary to good attorney-client relations" and was being "uncooperative in assisting his own defense." Phoenix sent a copy of her motion to withdraw to appellant.
On August 6, 2018, the trial court granted the motion for disclosure of expert witnesses. On August 22, 2018, May 23, 2019, and November 7, 2019, the State produced a list of its witnesses and expert witnesses. On May 10, 2019, the State gave notice of "prior convictions extraneous offenses and bad acts which may or may not be offered at trial," and on May 23, 2019, the State filed a "first supplemental notice of intent to introduce evidence of bad acts, prior convictions and other evidence pursuant to rules 404, 609 and articles 38.371 and 37.07." (Internal quotations omitted.) On September 29, 2021, the State filed an amended list of witnesses and notice of expert witnesses.
On March 12, 2018, the trial court held a hearing on Phoenix's motion to withdraw, at which appellant and Phoenix were both present. Phoenix told the trial court that appellant was not happy with her representation and would not assist her in preparing for trial. Appellant had also been aggressive with her, cursed at her, and "accused [her] of being in bed with the [State]." According to Phoenix, appellant had "given every indication that he d[id] not want [her] representation," and she could not "represent someone that[] [was] not assisting [her] with [his] own defense." Appellant indicated to the trial court that he was unhappy with Phoenix's representation, and he did not believe that she could "handle" his case. Appellant noted that he would hire his own attorney. The trial court granted Phoenix's motion to withdraw. Appellant signed a reset form, indicating that the case would be reset to March 19, 2018 for the designation of an attorney for appellant.
On March 19, 2018, the trial court appointed Stephen Doggett to represent appellant in the trial court, and Doggett signed a reset form. Doggett met with appellant on March 16, 2018 and had a telephone conference with him on March 19, 2018. On April 9, 2018, May 7, 2018, and May 30, 2018, appellant and Doggett signed reset forms.
On May 30, 2018, the trial court held a competency hearing, at which both appellant and Doggett were present. At the hearing, Dr. Danielle Todaro testified that she was a licensed psychologist with Fort Bend County Behavioral Health Services. Todaro met with appellant twice, once on February 26, 2018 and again on March 5, 2018, for a clinical interview and to conduct "a very specific evaluation with regard[] to his competency to stand trial." Todaro also reviewed "the incident report," the offense report, and appellant's criminal records, "jail mental health medical records," and "outside hospital records." Todaro spoke with Phoenix-appellant's trial counsel at the time-and the State as well as "some staff over in the jail." Todaro submitted her competency report to the trial court on March 9, 2018, and it was her opinion that appellant was competent to stand trial.
Todaro noted that during her meetings with appellant, appellant told her that he had previously represented himself in a civil proceeding in 2018, and Todaro was able to verify that appellant had represented himself in a divorce proceeding that year. Appellant also told her that he had taken the "Bar examination" and he had "r[u]n for the Texas State Senate," which Todaro was able to verify. Appellant told Todaro that he was employed "out of his home," but he would not disclose how he was employed. According to Todaro, appellant was hospitalized twice while in jail during the current case because he was "exhibiting symptoms of detoxifying from alcohol."
Todaro also explained that appellant told her that he had once been admitted to the Texana Crisis Center, but according to appellant, it was a mistake and he "needed to go to the medical hospital instead." Todaro was able to verify that he was admitted to the Texana Crisis Center for one day and then transferred to a medical hospital. According to Todaro, appellant's medical records noted that appellant had previously been diagnosed with a psychotic disorder, which Todaro described as "an older diagnosis." Appellant, in the past, had been admitted to a medical hospital about six times for "seizure-like symptoms."
Todaro's competency report states that the previous diagnosis was made in 2015. Appellant was not taking any psychoactive medications at the time of Todaro's interview and evaluation, and he had "maintained a stable presentation over a number of months."
Todaro further testified that during her meetings with appellant, appellant reported to her concerns "about evidence being tampered with in his case" and about his then-trial counsel-Phoenix-being "in cahoots with the [State]." And appellant believed that his medical records had been tampered with and his trial counsel was aware that certain evidence had been manufactured. When Todaro spoke to Phoenix, Phoenix stated that appellant had made similar comments to her. Appellant also told Todaro that "the F.B.I. and the Attorney General were involved in his case." Todaro was not able to verify whether appellant's claims were true, but she noted that a person could "have some kind of bizarre, even borderline delusional thoughts," but that did not "necessarily mean that [he] m[et] the criteria for a mental illness." And Todaro did not make a psychiatric diagnosis related to appellant.
Todaro also stated that, after meeting with appellant and speaking with him and based on his "verbal abilities," his ability to understand the questions she asked, and his word choice, she believed that appellant was "within the average range of intelligence." Appellant appeared educated and told her that he had graduated high school. Appellant also appeared to "understand courtroom proceedings, his plea options, what they meant, . . . [and] procedures in the courtroom."
The trial court admitted into evidence a copy of Todaro's competency report. In her assessment, Todaro explained that appellant correctly identified the offense with which he was charged and that it was a second-degree felony offense. Appellant was aware of the potential sentencing range associated with the offense of aggravated assault and that it had taken "several months to arraign him." Appellant also knew "the correct amount of his current bond," the name of the trial court judge presiding over his case, and "the last names of the two prosecutors assigned to his case."
Todaro further reported that appellant was able to recall the date and location of his arrest, and he "remembered that he was informed of his charge when he was brought to the jail on the day of his arrest." Appellant did not initially want to provide information about the incident which led to the charge against him, but later he "provide[d] a little better description of the criminal act he [was] alleged to have engaged in." Appellant identified the complainant and the alleged weapon used in the alleged offense. According to Todaro, appellant was "able to provide logical, relevant and consistent facts related to his charge." He provided "a number of relevant details related to the criminal allegation against him [which] were logical and consistent with police records, suggesting that he [had] a working understanding of his case."
Todaro also stated that appellant had demonstrated an understanding of his available legal options. Appellant "identified a plea of not guilty as 'they didn't do it.'" (Emphasis omitted.) And appellant correctly identified that a plea of guilty meant that a person "'actually did what [he] allegedly did' and [appellant] noted that one would be 'punished' following such a plea." Appellant further described "a plea bargain" and "expressed] his thoughts about accepting such an offer in his particular case." Appellant told Todaro "the legal option he would like to pursue in his case." He stated that he "needed to see the evidence in the case," and he noted that he "desire[d] to represent himself." According to Todaro, appellant indicated that he wanted to represent himself throughout her meetings with him, and after speaking with appellant's then-trial counsel and the State, Todaro realized that appellant's wish had also been brought up to the trial court. Todaro further explained that although appellant remained fixated on the idea that the evidence in the case had been manufactured or tampered with and that his then-trial counsel-Phoenix-was "in bed" with the State, such an idea was not illogical given that he wanted to represent himself. (Internal quotations omitted.) Todaro opined that "given [appellant's] strong desire to represent himself in [his] case, it [was] possible that his refusal to work with [his] counsel [was] based on the fact that he fe[lt] he c[ould] best represent himself, rather than any appointed counsel, which could explain his evasive and suspicious presentation."
Additionally, Todaro explained that appellant demonstrated an adequate understanding of the roles of courtroom personnel. He stated that the trial court was "a neutral party" and was "there to make sure everyone ha[d] a fair shake at it." (Internal quotations omitted.) As to the jury, appellant stated that "they weigh the evidence and listen to the [trial court's] instructions," whereas the State's role was "to protect the people in society" and to "seek [a] conviction." (Internal quotations omitted.) Appellant also noted that defense counsel was on the side of the defendant. According to Todaro, appellant was able to "engage in discussion of some hypothetical legal scenarios and offered logical and rational responses about legal strategies to consider, potential evidence, and witnesses in those hypothetical scenarios." Appellant could also identify potential evidence and witnesses in his case. Todaro opined that appellant had the capacity to engage in decision-making but was "simply . . . choosing not to discuss his particular defense" with his appointed trial counsel.
Todaro noted that appellant "would be []able to exhibit behavior which [was] appropriate for court," and during her meetings with him, appellant behaved appropriately and did not "demonstrate any bizarre, unusual, or dangerous behaviors." Appellant "voiced an awareness of the potential consequences [he] could face if [he was] to act out in court and denied any personal experiences of difficult behavior in the courtroom." According to Todaro, appellant also demonstrated an understanding of his rights related to testifying and he was "able to explain his thoughts on testifying in his case." Appellant did not exhibit any difficulty with understanding or expression, and there was no evidence to suggest that appellant had an intellectual disability. "[H]is overall level of intellectual functioning was estimated to be in the average to possible above average range . . ." The report concluded that appellant was competent to stand trial.
At the conclusion of the competency hearing, the trial court found that appellant was competent to stand trial and signed an order to that effect.
On May 31, 2018, Doggett filed a motion to be allowed to have contact with minor witnesses, which the trial court granted. On July 9, 2018 and August 6, 2018, appellant and Doggett signed reset forms. On August 7, 2018, Doggett filed a pretrial application for writ of habeas corpus, requesting a reduction in appellant's bail amount, which the trial court granted, reducing appellant's bail amount to $12,000. At the hearing on appellant's pretrial application for writ of habeas corpus, appellant informed the trial court that he had previously represented himself in his divorce proceeding with the complainant.
On February 22, 2019, Doggett filed a motion for the trial court to reconsider its prior ruling to reduce appellant's bail.
On August 10, 2018, Doggett filed an application to issue subpoena duces tecum for certain items to be produced by the State. On August 27, 2018 and October 8, 2018, appellant and Doggett signed reset forms. On September 7, 2018, Doggett filed a second motion to be allowed to have contact with minor witnesses, and on October 12, 2018, Doggett filed an amended second motion to be allowed to have contact with minor witnesses, which the trial court granted.
On November 26, 2018, appellant and Doggett signed a reset form. And on November 28, 2018, Doggett filed a motion for appellant to be allowed to be present during Doggett's interview with minor witnesses.
On January 18, 2019, Doggett filed a motion suggesting incompetency and request for examination, which the trial court granted. On February 4, 2019 and March 25, 2019, appellant and Doggett signed reset forms. On March 28, 2019, Doggett filed a motion for appellant to be allowed to have access to his children. On May 1, 2019, the trial court issued an order related to appellant's visitation with his children.
The record contains a second competency report by Dr. Tonya Martin dated March 22, 2019. After meeting with and evaluating appellant, she concluded that appellant was competent to stand trial. Martin explained in her report that appellant "demonstrated [a] basic factual understanding" of the charge against him and a "basic rational understanding and appreciation for potential consequences" related to his charge. Appellant also demonstrated a "factual and rational understanding of available plea options" and "a plea bargain," and appellant communicated "factual and rational information pertaining to key roles in the courtroom, courtroom behavior, and testifying." Appellant "adequately verbalized the adversarial nature of the courtroom." According to Martin, any deficits in appellant's ability to discuss available legal options, disclose relevant facts, or consult with his counsel were not due to "a serious mental illness," but rather due to a "narcissistic need to win the legal case" and a lack of a desire to "disclose relevant facts, events, and states of mind, or consult with [his] counsel" because of a concern that "his case may negatively impact his image." Appellant's responses to his trial counsel "appeared] to be part of a need to win his legal case, possibly to preserve the image he ha[d] created for himself as an intelligent individual who ha[d] his own business and who ha[d] run for office," but not because of "a serious mental illness." Appellant showed no signs of a genuine mental illness.
On May 15, 2019, Doggett filed a motion to use an investigator with the Fort Bend County Public Defender's Office to assist in the investigation and the preparation of appellant's defense, which the trial court granted. On May 20, 2019, the trial court ordered that the Fort Bend Sheriff's Office release to Doggett a copy of appellant's "jail medical records" and "non-medical jail records." And in May 2019, Doggett filed applications to issue subpoenas for certain witnesses and to issue subpoena duces tecum for certain items.
On May 23, 2019, the trial court ordered that the State provide copies of "records from various [hospitals, [d]octors and/or various medical facilities that relate[d] to the complainant" and appellant. On May 30, 2019, Doggett filed a motion in limine related to appellant's prior convictions and extraneous offenses, which the trial court denied. On June 3, 2019, appellant and Doggett signed a reset form. On June 4, 2019, Doggett filed a first amended motion in limine.
On July 9, 2019, Doggett filed a motion to withdraw as appellant's counsel, stating that appellant and Doggett "disagree[d] on several significant matters" and appellant told Doggett that if Doggett was "unable or unwilling to do what [appellant] want[ed], [Doggett] should remove himself from the case." (Internal quotations omitted.) A copy of Doggett's motion to withdraw was provided to appellant. On July 22, 2019, the trial court granted Doggett's motion to withdraw. Also, on July 22, 2019, the trial court appointed the Fort Bend County Public Defender's Office to represent appellant in the trial court, and appellant and an attorney from the Fort Bend County Public Defender's Office signed a reset form. On July 26, 2019, Alberto Salceda from the Fort Bend County Public Defender's Office filed a notice of appearance on appellant's behalf and a motion for discovery.
On August 19, 2019, Overzenia Ojuri was appointed to represent appellant in the trial court. At a hearing on August 19, 2019 concerning whether appellant's case would be transferred to a specialized court, Ojuri told the trial court that she had spoken with appellant, who was concerned that his "case [was] very old" and that he had been "incarcerated for approximately two years" without going to trial. Appellant wanted a jury trial, and he told Ojuri that he wanted to represent himself. Ojuri had spoken to appellant about the motions that he wanted to have filed, and they were appropriate. Appellant had not said anything unusual to her "in terms of what he want[ed] to have happen." Appellant was concerned that he had not seen "the discovery," and Ojuri told appellant that she would "do everything in [her] power to make that available" to him. Ojuri stated that she would be willing to serve as appellant's standby counsel and she would file the motions that appellant wanted after he reviewed them. On August 20, 2019, the trial court signed an order transferring appellant's case to the 434th District Court of Fort Bend County, Texas.
On October 9, 2019, appellant's case was transferred back to the trial court from the 434th District Court, and Ojuri filed a motion to dismiss for violation of speedy trial, which the trial court denied. On October 14, 2019, appellant and Ojuri signed a reset form.
Appellant filed a pro se notice of appeal challenging the trial court's order denying the motion to dismiss. See Anthony v. State, No. 01-19-00941-CR, 2020 WL 1144670, at *1 (Tex. App.-Houston [1st Dist.] Mar. 10, 2020, no pet.) (mem. op., not designated for publication) (dismissing appeal for lack of jurisdiction). Appellant also filed a pro se appellant's brief in his appeal.
On October 22, 2019, Ojuri filed a motion in limine related to appellant's prior convictions and extraneous offenses as well as a motion to suppress. On November 6, 2019, Ojuri filed an amended motion in limine. On December 2, 2019, appellant and Ojuri signed a reset form.
Also, on December 2, 2019, the trial court held a hearing, during which Ojuri told the trial court that appellant had repeatedly told her that she had been appointed "to assist him" but that it was "his case," which Ojuri understood to mean that appellant believed that she was his "standby counsel," and he was going to "try his own case." Ojuri noted that appellant, acting pro se, had filed a notice of appeal from the trial court's order denying his motion to dismiss after Ojuri told him that the trial court's order was not appealable. Ojuri also explained that she had met with appellant "a minimum of . . . about once a week for a minimum of about two hours . . . on each occasion" since she had been appointed by the trial court.
The trial court then stated that it had appointed Ojuri to represent appellant in the trial court, and it had not appointed her to be standby counsel. However, if appellant was "insisting that he want[ed] to represent himself," it would ask that Ojuri serve as standby counsel and help "usher [appellant] through the process" and "make sure he [did not] step on himself." The trial court then explained to appellant that if he chose to represent himself, he would be "going up against" attorneys for the State. And it would hold appellant to the same standard as an attorney. The trial court stated that appellant's "objections ha[d] to be spot-on," and his "attempts to enter evidence ha[d] to be spot-on." He had "to do everything that [a] lawyer [w]ould do." Appellant responded that he could "do it" and that it was his "constitutional right" to represent himself.
When the trial court asked Ojuri if she was willing to serve as appellant's standby counsel, Ojuri stated that she would "assist in any way possible." But she wanted to make the trial court aware that appellant "stated that he [was] doing th[e] trial, that [she was] not to do the trial, [and] that [she was] [t]here to assist him." Ojuri wanted to ensure that "the record [was] clear that [she was] acting as standby counsel."
The trial court then stated that it would appoint Ojuri as standby counsel for appellant, and appellant could "act as [his] own attorney." Appellant told the trial court that its decision "[was] not a problem."
On February 3, 2020, appellant signed a reset form pro se. On February 4, 2020, Ojuri filed a motion to withdraw as appellant's counsel, stating that appellant did not want Ojuri to represent him in the trial court and wanted "to be self-represented or pro se." (Internal quotations omitted.) Thus, Ojuri sought to withdraw so that appellant could be "represented by counsel of his choice." Appellant consented to Ojuri's motion to withdraw. The trial court did not rule on the motion.
On February 28, 2020, appellant signed a reset form pro se, and on March 23, 2020, Ojuri signed a reset form. On June 1, 2020, appellant represented himself at a hearing on a motion to modify bond conditions, during which Ojuri was present as standby counsel. Ojuri explained to the trial court that appellant had been able "to articulate to [her] the things he want[ed] to investigate" related to his case and "the information that he want[ed] to secure." And appellant had "done a significant portion of legwork . . . to prepare for his trial, to prepare for his case, [and] to be prepared to cross-examine all of the witnesses." On June 5, 2020, appellant signed a reset form pro se.
On June 10, 2020, Ojuri filed a motion to release all discovery to appellant, which the trial court granted in part. On June 18, 2020, appellant filed pro se a motion to interview minor witnesses. On June 29, 2020, appellant represented himself at a hearing related to the trial court's order on the motion to release discovery, during which Ojuri was present as standby counsel. On July 20, 2020, appellant and Ojuri signed a reset form. On July 30, 2020, the trial court held a hearing related to discovery, at which appellant represented himself with Ojuri present as standby counsel. During the hearing, the trial court ordered the State to turn over certain evidence over to appellant. On July 30, 2020, the trial court signed a discovery order requiring the State to provide appellant with "copies of all offense reports" within five business days.
On August 5, 2020, the State filed a motion to reconsider the trial court's July 30, 2020 discovery order. In its motion, the State stated that appellant had "not been properly admonished pursuant to" Faretta v. California, 422 U.S. 806 (1975), and had not "executed [a] written waiver" under the Texas Code of Criminal Procedure. According to the State, appellant had not "with full knowledge waived his right to counsel." The State requested an "inquiry" into appellant's competency to stand trial and his ability to waive his right to counsel, and for the trial court to "appoint stand[by] counsel for the entire proceeding or at least for the discovery process."
On August 7, 2020, Ojuri filed a response to the State's motion on appellant's behalf as his standby counsel. In the response, appellant stated that he had always wanted to "represent himself in the case and that the trial court had determined that appellant was capable of representing himself. The trial court had appointed Ojuri as standby counsel to assist appellant as needed. Further, the response stated:
8. [Appellant] does hereby assert that th[e] court has performed an assessment to determine that he is capable of representing himself.
9. [Appellant] further asserts that stand[by] counsel has been appointed to assist and he has met with and does discuss criminal procedures with stand[by] counsel on a regular basis.
10. [Appellant] further would assert that he has been evaluated on numerous occasions by doctors at Fort Bend County Behavioral Health Services to include: Dr. Danielle Todaro, Dr. Tonya Martin and Susan Savelli, LPC.
11. [Appellant] would assert that the mental health professionals have written reports tendered to the court that give the professional opinion that he is "Competent to Stand Trial."[] Further findings are that he is not a person with a mental illness.
14. [Appellant] has not presented to the court in a manner that would give the court or others involved in the criminal justice system and [sic] indication that he is not competent to stand trial.
Appellant thus requested that the trial court order that the State release to him the discovery required by the trial court's July 30, 2020 discovery order. And he asked that the trial court take judicial notice of its "prior findings based on reports written and that [were] part of the court file that he [was] competent to stand trial." (Emphasis omitted.)
On August 19, 2020, the trial court held a hearing on the State's motion to reconsider the trial court's July 30, 2020 discovery order, at which appellant represented himself, with Ojuri present as standby counsel. At the hearing, the State told the trial court that the "record wasn't clear in regard[] to whether the Faretta warnings were given and whether [appellant] was advised or admonished of some of the warnings or some of the consequences of going pro se," so the State was requesting that appellant be "given his Faretta warnings." The trial court responded that appellant had been "given the warnings at the start of the case . . . so that issue [was] settled." The trial court also explained that appellant was "all the way pro se." Appellant was acting as "his own attorney," and he would be the "only person speaking at trial" and "the only person presenting evidence." Appellant would be "question[ing] . . . witnesses." The trial court had appointed Ojuri "to kind of guide [appellant] through the process." Ojuri was "[t]here for the purposes of standby counsel." She was not "going to conduct th[e] trial." The trial court also reminded appellant that he would need to "behave as any other lawyer."
On September 14, 2020, appellant and Ojuri signed a reset form. Thereafter, appellant filed multiple pro se applications to issue subpoenas for certain witnesses. On October 30, 2020, appellant filed a pro se motion for the appointment of an investigator and a pro se motion to get an address of a witness.
On November 2, 2020, the trial court held a status hearing at which appellant represented himself, with Ojuri present as standby counsel. At the hearing, the trial court "urge[d]" appellant to allow a "very experienced attorney [to] assist" him, rather than representing himself. It also told appellant:
I urge you to allow a real qualified attorney to be your attorney rather than yourself. I urge you to do that. This is a criminal proceeding. At the end of this proceeding if you lose, there's a possibility that you'll go to prison. So we need you to make sure that you're being represented.
Look at the people in this room. The rest of the folks in this room are lawyers except for the doctor and the bailiff. You're going to be going up against qualified attorneys, very experienced and very qualified attorneys . . . . And you're making mistakes right now that could jeopardize the outcome of your case.
All right. I'm not going to prejudge it, because I'm not going to be -- you're going to have a jury over there. But you're going to be going up against attorneys who've done what you're attempting to do hundreds of times. And I urge you to get yourself an attorney or to let . . . Ojuri be your lead counsel. But I really think you'd be making a mistake to not go into this trial with competent counsel.
During the hearing, Ojuri advised the trial court that she had "done a lot in th[e] case," just not as lead counsel. She had spent "hours and hours and hours" working on the case because she believed that she could help appellant "manage things a little better than another attorney."
On November 2, 2020, appellant signed a reset form pro se. Thereafter, appellant filed multiple applications to issue subpoenas for certain witnesses. On February 1, 2021, appellant represented himself at a hearing on a motion to revoke bond filed by the State. Ojuri was present at the hearing as standby counsel. On February 24, 2021 and May 3, 2021, appellant signed reset forms pro se. On June 28, 2021, appellant filed a list of witnesses he intended to call at trial.
In July 2021, appellant filed multiple pro se applications to issue subpoenas for certain witnesses. On July 23, 2021, appellant signed a document acknowledging that he had "a right to hire an attorney" or if he could not afford an attorney then he had "the right to request the appointment of an attorney."
On August 16, 2021, appellant filed a pro se motion for continuance, seeking to continue his August 31, 2021 trial setting, which the trial court granted. Thereafter, appellant filed multiple pro se applications to issue subpoenas for certain witnesses. On August 30, 2021, appellant filed a pro se request to "access all evidence shown the grand jury," which the trial court denied. On September 15, 2021, appellant filed a pro se request to "access . . . all evidence under Texas Code of Criminal Procedure [a]rticle 39.14 for the duration of the trial" and for access to his "9mm Beretta handgun . . . prior to and during the trial." On September 21, 2021, appellant filed pro se his election to have the jury assess punishment should he be found guilty of the charged offense.
On September 27, 2021, the trial court held a pretrial hearing at which appellant represented himself pro se. At the hearing, the trial court noted that appellant did not want standby counsel any longer. The trial court told appellant that it "want[ed] to make sure [that he was] capable of going forward as [his] own counsel or that [he] recognize[d] that there [was] a situation where [he] should not go forward as [his] own counsel." The trial court then asked appellant if he had "ever studied the law," to which appellant replied, "[n]o." The trial court also asked if appellant had ever represented himself or another defendant "in a criminal action," and appellant stated that he had represented himself in "[t]raffic [c]ourt." When asked whether he was aware that he had been "charged with [the offense of] aggravated assault with a deadly weapon" and whether he was aware of the "range of punishment in th[e] case based on [his] background," appellant responded, "[a]bsolutely." The trial court then confirmed with the State that the range of punishment related to the offense with which appellant was charged was confinement for two to twenty years, and it asked appellant whether he realized that if he was found guilty, he "w[ould] be subject to the 2 to 20." Appellant confirmed that he was aware of the punishment range for the charged offense, and he confirmed that he knew that the trial court could "place [him] in TDCJ Institutional Division."
The trial court also told appellant that if he represented himself at trial that he was "on [his] own" and there was "nobody going to help [him]." And appellant stated that he "completely understood] that." Appellant also confirmed that he knew that the trial court was "not allowed to assist" him during trial, the trial court could not "assist [him] in presenting [his] case," and the trial court could not "assist [him] in making the proper motions during the trial or objections in the trial." Appellant told the trial court that he was familiar with the rules of criminal procedure and that those rules "governed] the way a criminal trial [was] supposed to take place."
Further, the trial court asked appellant if anyone had threatened him or "promised [him] in any way anything that ma[de] [him] decide [that he] d[id] not want an attorney representing [him]," and appellant replied, "[n]o." When the trial court advised appellant that he would be "much better off if [he] had an attorney in th[e] case," appellant told the trial court that "an attorney c[ould not] try th[e] case." Appellant also told the trial court to "just let it unfold. You'll see it. You'll see it in [the] opening statement." Finally, the trial court asked appellant, "knowing the range of punishment that [he] face[d] in [the] case," whether he was "sure for the last time that [he] want[ed] to represent [himself]." And appellant responded, "[absolutely."
Thus, the trial court stated that it "believed that [appellant was] capable of representing [himself]" and it would "let [him] represent [himself]." The trial court told appellant to be ready for trial on October 5, 2021.
On September 29, 2021, appellant filed a pro se motion in limine. And on September 29, 2021, Ojuri filed a motion to withdraw as appellant's standby counsel, explaining that she was unable to effectively communicate with appellant and appellant no longer wanted to receive any advice from Ojuri. Ojuri noted that appellant was representing himself pro se and was aware of "his court dates." On October 5, 2021, trial began. Before voir dire, the trial court released Ojuri from any obligation to serve as appellant's standby counsel during trial. On October 6, 2021, the trial court signed an order granting Ojuri's motion to withdraw. Appellant represented himself pro se during the entirety of trial.
Standard of Review
Federal and state law guarantee a criminal defendant the right to the assistance of counsel, as well as the right to waive counsel and represent himself. See U.S. Const. amends. VI, XIV; Tex. Const. art. 1, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05; Faretta, 422 U.S. at 807, 812-34; Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002); Collier v. State, 959 S.W.2d 621, 625-26 (Tex. Crim. App. 1997). A defendant should be warned of the dangers and disadvantages accompanying the waiver of the right to counsel and decision to self-represent. See Faretta, 422 U.S. at 835; Hatten, 71 S.W.3d at 333. Such a decision, to be constitutionally effective, must be made competently, voluntarily, knowingly, and intelligently. Godinez v. Moran, 509 U.S. 389, 400-02 (1993); see also Faretta, 422 U.S. at 834-35; Collier, 959 S.W.2d at 625-26. The decision is made voluntarily if it is uncoerced. Collier, 959 S.W.2d at 626. The decision is made knowingly and intelligently if made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. Id. We review a trial court's decision to allow a defendant to represent himself for an abuse of discretion. See Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010).
Waiver of Right to Counsel
In his sole issue, appellant argues that the trial court erred in allowing him to waive his right to counsel and exercise his right to self-representation because the trial court's ccFaretta questions/warnings were insufficient and did not occur until [twenty-one] months after the [trial] court ordered [that] appellant would represent himself and appellant "did not execute a written waiver of counsel" pursuant to Texas Code of Criminal Procedure article 1.051(g).
A defendant may choose to proceed pro se by exercising his right to self-representation. See Tex. Const. art. 1, § 10 (defendant "shall have the right of being heard by himself"); TEX. CODE CRIM. PROC. ANN. art. 1.05; Faretta, 422 U.S. at 812-34; Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999). When the right to self-representation was established in Faretta, the United States Supreme Court stated that "[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation." Faretta, 422 U.S. at 835; see also Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). Once a defendant asserts his right to self-representation, a trial court is obligated to advise the accused of the dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); Williams v. State, 774 S.W.2d 703, 705 (Tex. App.- Dallas 1989, pet. ref'd).
However, when a trial court appoints standby counsel, it is not required to admonish the defendant of the dangers of self-representation. See King v. State, No. 05-18-01116-CR, 2020 WL 1452046, at *2 (Tex. App.-Dallas Mar. 25, 2020, pet. ref'd) (mem. op., not designated for publication); Walker v. State, 962 S.W.2d 124, 126-27 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (trial court not required to admonish defendant where defendant had access to standby counsel, although he did not use it); Robertson v. State, 934 S.W.2d 861, 865-66 (Tex. App.-Houston [14th Dist.] 1996, no pet.); see also Maddox v. State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1980) (admonishment required only where defendants represent themselves without assistance of counsel); Phillips v. State, 604 S.W.2d 904, 908 (Tex. Crim. App. 1979); Sumrell v. State, Nos. 05-09-00238-CR, 05-09-00239-CR, 2010 WL 3123302, at *2 (Tex. App.-Dallas Aug. 19, 2010, pet. ref'd) (not designated for publication). In cases where standby counsel is appointed, "no question of waiver of counsel is involved, since counsel remains to assist the defendant, and as a result, there is no true waiver of counsel and no need to admonish the defendant of the dangers and disadvantages of self-representation." See King, 2020 WL 1452046, at *2 (internal quotations omitted); see also Maddox, 613 S.W.2d at 286.
"The term 'standby counsel' usually describes situations when, in response to a defendant's request for self-representation, the trial court instead allows the defendant's attorney to remain as counsel and be available to advise the defendant and participate in the case, or not, as requested by the defendant." Walker v. State, 962 S.W.2d 124, 126 (Tex. App.-Houston [1st Dist] 1997, pet. ref d); see also Myles v. State, No. 01-14-00581-CR, 2015 WL 3877738, at *2 (Tex. App.- Houston [1st Dist.] June 23, 2015, no pet.) (mem. op., not designated for publication) ("Standby counsel is available to advise the pro se defendant, but the defendant is not required to seek his assistance.").
Here, a Fort Bend County Grand Jury issued a true bill of indictment, alleging that appellant, on or about February 7, 2017, "intentionally or knowingly threatened" the complainant "with imminent bodily injury" and "use[d] or exhibit[ed] a deadly weapon, to-wit: a gun, during the commission of [the] assault." On March 9, 2017, the trial court appointed Wilson to represent appellant in the trial court. Although the trial court subsequently appointed different trial counsel to represent appellant throughout the underlying case, appellant continued to be represented by appointed counsel in the trial court for the next two years. On August 19, 2019, Ojuri was appointed to represent appellant in the trial court. While appellant was represented by counsel, the trial court had no obligation to admonish appellant about the dangers of self-representation. See Young v. State, No. 05-98-00036-CR, 2000 WL 2676, at *1 (Tex. App.-Dallas Jan. 4, 2000, no pet.) (not designated for publication) (where defendant has counsel, trial court not required to admonish him of dangers of self-representation); Dutch v. State, No. 01-97-00663-CR, 1998 WL 614440, at *1 (Tex. App.-Houston [1st Dist.] Sept. 3, 1998, pet. ref'd) (mem. op., not designated for publication) (explaining "need for . . . admonishments arises only when a defendant has no counsel available"); Robertson, 934 S.W.2d at 865-66 (need to admonish arises only where defendant has no counsel available).
On December 2, 2019, the trial court held a hearing, during which Ojuri told the trial court that appellant had repeatedly told her that she had been appointed "to assist him" but that it was "his case," which Ojuri understood to mean that appellant believed that she was his "standby counsel," and he was going to "try his own case." Ojuri also explained that she had met with appellant "a minimum of . . . about once a week for a minimum of about two hours . . . on each occasion" since she had been appointed by the trial court.
The trial court then stated that it had appointed Ojuri to represent appellant in the trial court, and it had not appointed her to be standby counsel. However, if appellant was "insisting that he want[ed] to represent himself," it would ask that Ojuri serve as standby counsel and help "usher [appellant] through the process" and "make sure he [did not] step on himself." The trial court then explained to appellant that if he chose to represent himself, he would be "going up against" attorneys for the State. And it would hold appellant to the same standard as an attorney. The trial court stated that appellant's "objections ha[d] to be spot-on," and his "attempts to enter evidence ha[d] to be spot-on" He had "to do everything that [a] lawyer [w]ould do." Appellant responded that he could "do it" and that it was his "constitutional right" to represent himself.
When the trial court asked Ojuri if she was willing to serve as appellant's standby counsel, Ojuri stated that she would "assist in any way possible." But she wanted to make the trial court aware that appellant "stated that he [was] doing th[e] trial, that [she was] not to do the trial, [and] that [she was] [t]here to assist him." Ojuri wanted to ensure that "the record [was] clear that [she was] acting as standby counsel." The trial court then appointed Ojuri to serve as standby counsel for appellant in the trial court. Appellant told the trial court that its decision "[was] not a problem."
Ojuri served as appellant's standby counsel from December 2, 2019 to September 27, 2021. While Ojuri served as appellant's standby counsel, the trial court had no obligation to admonish appellant as to the dangers of self-representation. See King, 2020 WL 1452046, at *2 (trial court need not admonish defendant of dangers of self-representation where standby counsel has been appointed); Walker, 962 S.W.2d at 126-27 (trial court not required to admonish defendant where defendant had access to standby counsel, although he did not use it); Robertson, 934 S.W.2d at 865-66; see also Maddox, 613 S.W.2d at 286 (admonishment required only where defendants represent themselves without assistance of counsel); Phillips, 604 S.W.2d at 908; Gordon v. State, No. 05-12-01520-CR, 2013 WL 6096547, at *3 (Tex. App.-Dallas Nov. 19, 2013, pet. ref d) (mem. op., not designated for publication) ("[W]hen . . . a defendant has standby counsel at his disposal, a trial court is not required to admonish a defendant on the dangers and disadvantages of self-representation.").
This is the date of the trial court's pretrial hearing. Ojuri filed a motion to withdraw as appellant's standby counsel on September 29, 2021-two days after the trial court's September 27, 2021 pretrial hearing. And on October 5, 2021, before voir dire began, the trial court on the record released Ojuri from any obligation to serve as appellant's standby counsel during trial. On October 6, 2021, the trial court signed an order granting Ojuri's motion to withdraw. However, because, at the pretrial hearing on September 27, 2021, the trial court agreed to allow appellant to represent himself without standby counsel going forward, we consider this to be the date that Ojuri stopped serving as appellant's standby counsel, even though her motion to withdraw was not granted until several days later.
On September 27, 2021, the trial court, at its pretrial hearing, noted that appellant did not want standby counsel any longer. The trial court told appellant that it "want[ed] to make sure [that he was] capable of going forward as [his] own counsel or that [appellant] recognize[d] that there [was] a situation where [he] should not go forward as [his] own counsel." The trial court then asked appellant if he had "ever studied the law," to which appellant replied, "[n]o." The trial court also asked if appellant had ever represented himself or another defendant "in a criminal action," and appellant stated that he had represented himself in "[t]raffic [c]ourt." When asked whether he was aware that he had been "charged with [the offense of] aggravated assault with a deadly weapon" and whether he was aware of the "range of punishment in th[e] case based on [his] background," appellant responded, "[a]bsolutely." The trial court then confirmed with the State that the range of punishment related to the offense with which appellant was charged was confinement for two to twenty years, and it asked appellant whether he realized that if he was found guilty, he "w[ould] be subject to the 2 to 20." Appellant confirmed that he was aware of the punishment range for the charged offense, and he confirmed that he knew that the trial court could "place [him] in TDCJ Institutional Division."
The trial court also told appellant that if he represented himself at trial that he was "on [his] own" and there was "nobody going to help [him]." And appellant stated that he "completely understood] that" Appellant also confirmed that he knew that the trial court was "not allowed to assist" him during trial, the trial court could not "assist [him] in presenting [his] case," and the trial court could not "assist [him] in making the proper motions during the trial or objections in the trial." Appellant told the trial court that he was familiar with the rules of criminal procedure and that those rules "governed] the way a criminal trial [was] supposed to take place."
Further, the trial court asked appellant if anyone had threatened him or "promised [him] in any way anything that ma[de] [him] decide [that he] d[id] not want an attorney representing [him]," and appellant replied, "[n]o." When the trial court advised appellant that he would be "much better off if [he] had an attorney in th[e] case," appellant told the trial court that "an attorney c[ould not] try th[e] case." Appellant also told the trial court to "just let it unfold. You'll see it. You'll see it in [the] opening statement." Finally, the trial court asked appellant, "knowing the range of punishment that [he] face[d] in [the] case," whether he was "sure for the last time that [he] want[ed] to represent [himself]." And appellant responded, "[absolutely." Thus, the trial court stated that it "believed that [appellant was] capable of representing [himself]" and it would "let [him] represent [himself]."
As previously noted, once a defendant asserts his right to self-representation, a trial court is obligated to advise the accused of the dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d at 135; Williams, 774 S.W.2d at 705. An appellate court looks at the totality of the circumstances to assess whether the defendant was aware of the dangers and disadvantages of self-representation. See Faretta, 422 U.S. at 835-36; Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008); Cooks v. State, 169 S.W.3d 288, 294-97 (Tex. App.- Texarkana 2005, pet ref'd). A defendant should be aware "that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights." Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988). But "a trial court need follow no 'formulaic questioning' or particular 'script' to assure itself that an accused who has asserted his right to self-representation does so with eyes open." Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991); see also White v. State, No. 07-21-00215-CR, 2022 WL 2195218, at *2 (Tex. App.-Amarillo June 17, 2022, no pet.) (mem. op., not designated for publication) ("[N]o particular script must be adhered to or formulaic questioning pursued by the trial court."). Here, the record reveals that the trial court at the September 27, 2021 pretrial hearing sufficiently admonished appellant as to the dangers and disadvantages of self-representation. See White, 2022 WL 2195218, at *2-3 (explaining after trial court's admonishments defendant "knew of his rights, exhibited an awareness of the situation he faced, and consciously chose to go forward on his own behalf; "[h]is eyes were wide open when making that choice and despite being told of the pitfalls lying before him"); Calton v. State, No. 2-04-228-CR, 2005 WL 3082202, at *2 (Tex. App.-Fort Worth Nov. 17, 2005, pet. withdrawn) (mem. op., not designated for publication) (holding defendant competently, knowingly, intelligently, and voluntarily exercised his right to defend himself and waived right to counsel where trial court explained defendant had right to counsel, defendant's case was serious, defendant would have to follow rules, and there were disadvantages to representing himself); see also Dolph v. State, 440 S.W.3d 898, 902 (Tex. App.-Texarkana 2013, pet. ref'd) ("[I]f (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is 'a mistake not to accept the assistance of counsel' and that the defendant will 'be required to follow all the ground rules of trial procedure,' the right of self-representation cannot be denied.").
We further note that the September 27, 2021 pretrial hearing was not the first time that the trial court had addressed appellant's desire to represent himself. But the trial court and appellant's interactions throughout the underlying case make clear that appellant repeatedly and clearly expressed his desire to represent himself in the trial court and he was repeatedly made aware of the dangers and disadvantages of self-representation. Cf. Ingram v. State, No. 07-13-00023-CR, 2014 WL 3906457, at *3-4 (Tex. App.-Amarillo Aug. 11, 2014, no pet.) (mem. op., not designated for publication).
For instance, on July 5, 2017, at his arraignment hearing, appellant received a copy of the indictment and, when asked, told the trial court that he had been charged with the offense of aggravated assault. Wilson, appellant's then-appointed counsel, told the trial court that appellant was "familiar with what he[] [was] charged with" and he had "gone over" with appellant the offense with which appellant was charged. At the arraignment hearing, the trial court asked appellant "[h]ow far" he went in school, and appellant stated that he had graduated high school and attended college for a while, but he did not graduate. Appellant also told the trial court that he was forty-eight years old and he was employed doing "[i]n-house investments" and "day trading." He also was previously "in[] politics." The trial court asked appellant about his understanding of the different roles the trial court, the State, and the defense attorney would play in his case.
Further, on May 30, 2018, the trial court held a competency hearing during which it was conveyed to the trial court that appellant desired to represent himself and that appellant had represented himself in a divorce proceeding in 2018. Todaro, the licensed psychologist who conducted appellant's competency evaluation, testified at the hearing that appellant told her that he had "r[u]n for the Texas State Senate," which she was able to verify, and that he was employed "out of his home." Appellant appeared educated and told Todaro that he had graduated high school. Appellant also appeared to "understand courtroom proceedings, his plea options, what they meant, . . . [and] procedures in the courtroom." Todaro stated that, after meeting with appellant and speaking with him and based on his "verbal abilities," his ability to understand the questions she asked, and his word choice, she believed that appellant was "within the average range of intelligence."
In her competency report, a copy of which the trial court admitted into evidence at the hearing, Todaro explained that appellant correctly identified the offense with which he was charged and that it was a second-degree felony offense. Appellant was aware of the potential sentencing range associated with the offense of aggravated assault and that it had taken "several months to arraign him." Appellant also knew "the correct amount of his current bond," the name of the trial court judge presiding over his case, and "the last names of the two prosecutors assigned to his case."
Todaro further reported that appellant was able to recall the date and location of his arrest, and he "remembered that he was informed of his charge when he was brought to the jail on the day of his arrest." Appellant did not initially want to provide information about the incident which led to the charge against him, but later he "provide[d] a little better description of the criminal act he [was] alleged to have engaged in." Appellant identified the complainant and the alleged weapon used in the alleged offense. According to Todaro, appellant was "able to provide logical, relevant and consistent facts related to his charge." He provided "a number of relevant details related to the criminal allegation against him [which] were logical and consistent with police records, suggesting that he [had] a working understanding of his case."
Todaro also stated that appellant had demonstrated an understanding of his available legal options, and he told Todaro "the legal option he would like to pursue in his case." He stated that he "needed to see the evidence in the case," and he noted that he "desire[d] to represent himself." According to Todaro, appellant indicated that he wanted to represent himself throughout her meetings with him. Todaro opined that "given [appellant's] strong desire to represent himself in [his] case, it [was] possible that his refusal to work with [his] counsel [was] based on the fact that he fe[lt] he c[ould] best represent himself, rather than any appointed counsel, which could explain his evasive and suspicious presentation."
Additionally, Todaro explained that appellant demonstrated an adequate understanding of the roles of courtroom personnel. According to Todaro, appellant was able to "engage in discussion of some hypothetical legal scenarios and offered logical and rational responses about legal strategies to consider, potential evidence, and witnesses in those hypothetical scenarios." Appellant could also identify potential evidence and witnesses in his case. Todaro opined that appellant had the capacity to engage in decision-making but was "simply . . . choosing not to discuss his particular defense" with his appointed trial counsel.
Todaro noted that appellant "would be []able to exhibit behavior which [was] appropriate for court," and during her meetings with him, appellant behaved appropriately and did not "demonstrate any bizarre, unusual, or dangerous behaviors." Appellant "voiced an awareness of the potential consequences [he] could face if [he was] to act out in court and denied any personal experiences of difficult behavior in the courtroom." According to Todaro, appellant also demonstrated an understanding of his rights related to testifying and he was "able to explain his thoughts on testifying in his case." Appellant did not exhibit any difficulty with understanding or expression, and there was no evidence to suggest that appellant had an intellectual disability. "[H]is overall level of intellectual functioning was estimated to be in the average to possible above average range . . . ." The report concluded that appellant was competent to stand trial. At the conclusion of the competency hearing, the trial court found that appellant was competent to stand trial.
A second competency report dated March 22, 2019, which is contained in the record, also concludes that appellant was competent to stand trial. In the report, Martin explained that appellant "demonstrated [a] basic factual understanding" of the charge against him and a "basic rational understanding and appreciation for potential consequences" related to his charge. Appellant also demonstrated a "factual and rational understanding of available plea options" and "a plea bargain," and appellant communicated "factual and rational information pertaining to key roles in the courtroom, courtroom behavior, and testifying." Appellant "adequately verbalized the adversarial nature of the courtroom." According to Martin, any deficits in appellant's ability to discuss available legal options, disclose relevant facts, or consult with his counsel were not due to "a serious mental illness," but rather due to a "narcissistic need to win the legal case" and a lack of a desire to "disclose relevant facts, events, and states of mind, or consult with [his] counsel" because of a concern that "his case may negatively impact his image." Appellant's responses to his trial counsel "appeared] to be part of a need to win his legal case, possibly to preserve the image he ha[d] created for himself as an intelligent individual who ha[d] his own business and who ha[d] run for office," but not because of "a serious mental illness." Appellant showed no signs of a genuine mental illness.
Subsequently, on August 27, 2018, at a hearing on appellant's pretrial application for writ of habeas corpus, appellant informed the trial court that he had previously represented himself in his divorce proceeding with the complainant.
On August 19, 2019, after Ojuri had been appointed to represent appellant, she informed the trial court at a hearing that appellant wanted a jury trial, and he told Ojuri that he wanted to represent himself. Ojuri had spoken to appellant about the motions that he wanted to have filed, and they were appropriate. Appellant had not said anything unusual to her "in terms of what he want[ed] to have happen." Appellant was concerned that he had not seen "the discovery," and Ojuri told appellant that she would "do everything in [her] power to make that available" to him. Ojuri stated that she would be willing to serve as appellant's standby counsel and she would file the motions that appellant wanted her to after he reviewed them.
On December 2, 2019, the trial court held a hearing, which is fully discussed above, and it appointed Ojuri to serve as appellant's standby counsel. During the hearing, the trial court explained to appellant that if he chose to represent himself, he would be "going up against" attorneys for the State. And it would hold appellant to the same standard as an attorney. The trial court stated that appellant's "objections ha[d] to be spot-on," and his "attempts to enter evidence ha[d] to be spot-on." He had "to do everything that [a] lawyer [w]ould do." Appellant responded that he could "do it" and that it was his "constitutional right" to represent himself.
On February 4, 2020, Ojuri filed a motion to withdraw, stating that appellant did not want Ojuri to represent him in the trial court and wanted "to be self-represented or pro se." (Internal quotations omitted.) Thus, Ojuri sought to withdraw so that appellant could be "represented by counsel of his choice." Although appellant consented to Ojuri's motion to withdraw, the trial court did not rule on it.
On August 7, 2020, in a response to a motion by the State, appellant told the trial court that he had always wanted to "represent himself" in the case and that the trial court had determined that appellant was capable of representing himself. The trial court had appointed Ojuri as standby counsel to assist appellant as needed. Further, the response stated:
8. [Appellant] does hereby assert that th[e] court has performed an assessment to determine that he is capable of representing himself.
9. [Appellant] further asserts that stand[by] counsel has been appointed to assist and he has met with and does discuss criminal procedures with stand[by] counsel on a regular basis.
10. [Appellant] further would assert that he has been evaluated on numerous occasions by doctors at Fort Bend County Behavioral Health Services to include: Dr. Danielle Todaro, Dr. Tonya Martin and Susan Savelli, LPC.
11.[Appellant] would assert that the mental health professionals have written reports tendered to the court that give the professional opinion that he is "Competent to Stand Trial."[] Further findings are that he is not a person with a mental illness.. . . .
14. [Appellant] has not presented to the court in a manner that would give the court or others involved in the criminal justice system and [sic] indication that he is not competent to stand trial.
At a hearing on August 19, 2020, the trial court told the parties that appellant was acting as "his own attorney," and he would be the "only person speaking at trial" and "the only person presenting evidence." Appellant would be "question[ing] . . . witnesses." The trial court had appointed Ojuri "to kind of guide [appellant] through the process." Ojuri was "[t]here for the purposes of standby counsel"; she was not "going to conduct th[e] trial." The trial court reminded appellant that he would need to "behave as any other lawyer."
On November 2, 2020, the trial court, at a status hearing, "urge[d]" appellant to allow a "very experienced attorney [to] assist" him, rather than representing himself. It also told appellant:
I urge you to allow a real qualified attorney to be your attorney rather than yourself. I urge you to do that. This is a criminal proceeding. At the end of this proceeding if you lose, there's a possibility that you'll go to prison. So we need you to make sure that you're being represented.
Look at the people in this room. The rest of the folks in this room are lawyers except for the doctor and the bailiff. You're going to be going up against qualified attorneys, very experienced and very qualified attorneys . . . . And you're making mistakes right now that could jeopardize the outcome of your case.
All right. I'm not going to prejudge it, because I'm not going to be -- you're going to have a jury over there. But you're going to be going up against attorneys who've done what you're attempting to do hundreds of times. And I urge you to get yourself an attorney or to let . . . Ojuri be your lead counsel. But I really think you'd be making a mistake to not go into this trial with competent counsel.
On July 23, 2021, appellant signed a document acknowledging that he had "a right to hire an attorney" or if he could not afford an attorney then he had "the right to request the appointment of an attorney."
In his briefing, appellant first complains that he could not have knowingly, intelligently, and voluntarily waived his right to counsel because he "did not execute a written waiver of counsel" as required by Texas Code of Criminal Procedure article 1.051(g). See TEX. CODE CRIM. PROC. ANN. art. 1.051(g) ("If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation. If the court determines that the waiver is voluntarily and intelligently made, the court shall provide the defendant with a [written] statement substantially in [a certain form provided in subsection (g)], which, if signed by the defendant, shall be filed with and become part of the record of the proceedings."). Although article 1.051(g) states that a defendant's waiver of the right to counsel should be made in writing, the Texas Court of Criminal Appeals has held that article 1.051(g) is not mandatory and the constitutional right to counsel can be waived orally. See Burgess, 816 S.W.2d at 429-31 (holding no written waiver requirement); Tutt v. State, 339 S.W.3d 166, 176 (Tex. App.-Texarkana 2011, pet. ref d); Allen v. State, 236 S.W.3d 818, 821 (Tex. App.-Waco 2007, pet. ref'd); see also Cantu v. State, No. 02-11-00056-CR, 2012 WL 3499750, at *6 (Tex. App.-Fort Worth Aug. 16, 2012, pet. ref d) (mem. op., not designated for publication) (where defendant asserted waiver of right to counsel was involuntary because it was not written, explaining "[t]he general requirement of a written waiver is imposed by statute, not by the state and federal constitutions").
Appellant next complains that the trial court admonished appellant about the dangers of self-representation too "late," because it waited until the September 27, 2021 pretrial hearing. Instead, appellant asserts that the trial court should have admonished appellant twenty-one months earlier in December 2019. Appellant provides no citation to authority in his briefing to support his timeliness complaint or his assertion that the trial court's admonishment of appellant was too "late." See TEX. R. APP. P. 38.1(i); Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.- Houston [1st Dist.] 2015, pet. ref'd) (appellant waives issue on appeal if he does not adequately brief issue by not providing appropriate citations to authorities). In any event, as explained above, appellant was either represented by appointed counsel or standby counsel until the September 27, 2021 pretrial hearing; thus, it was not until that point that the trial court was required to admonish appellant about the dangers of self-representation. See King, 2020 WL 1452046, at *2; Walker, 962 S.W.2d at 126-27 (trial court not required to admonish defendant where defendant had access to standby counsel, although he did not use it); Robertson, 934 S.W.2d at 865-66 (need to admonish arises only where defendant has no counsel available); see also Maddox, 613 S.W.2d at 286 (admonishment required only where defendants represent themselves without assistance of counsel); Phillips, 604 S.W.2d at 908; Dutch, 1998 WL 61440, at *1 (explaining "need for . . . admonishments arises only when a defendant has no counsel available").
In December 2019, when appellant asserts the trial court's admonishment should have occurred, appellant was represented by standby counsel.
Finally, appellant asserts that the trial court's admonishments at the September 27, 2021 pretrial hearing were inadequate because the trial court did not inquire about appellant's age, educational background, job experience, ability to research, write, or understand English, or mental health and medical problems. Appellant again provides no authority in his briefing to support his argument. See Tex. R. App. P. 38.1(i); Wilson, 473 S.W.3d at 901. Nevertheless, we note that the trial court "need follow no 'formulaic questioning' or particular 'script' to assure itself that an accused who has asserted his right to self-representation does so with eyes open." Burgess, 816 S.W.2d at 428; see also White, 2022 WL 2195218, at *2 ("[N]o particular script must be adhered to or formulaic questioning pursued by the trial court."); Cole v. State, 590 S.W.3d 1, 6 (Tex. App.-Beaumont 2019, no pet.) ("[N]o set formula or script exists for trial courts to follow when admonishing the defendant about the dangers of representing himself."). And it is not mandatory for the trial court to inquire into a defendant's age, education, background, or previous mental health history where the record is otherwise sufficient, as in this case, for the court to have "ma[d]e an assessment of his knowing exercise of the right to defend himself." Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982) (internal quotations omitted); see also Blankenship, 673 S.W.2d at 583; Bates v. State, No. 01-19-00275-CR, 2020 WL 573253, at *4 (Tex. App.- Houston [1st Dist.] Feb. 6, 2020, no pet.) (mem. op., not designated for publication) (rejecting defendant's argument that trial court's failure to inquire into his educational background constituted error); Smith v. State, No. 05-03-01282-CR, 2004 WL 1089206, at *7-8 (Tex. App.-Dallas May 17, 2004, no pet.) (mem. op., not designated for publication) (holding defendant knowingly and intelligently waived his right to counsel and exercised his right to self-representation even though trial court did not inquire into his age, educational background, legal experience, and knowledge of rules of evidence and trial procedure prior to permitting waiver). Technical legal knowledge is not relevant to determining whether a defendant's decision to exercise his right to self-representation was knowing. Faretta, 422 U.S. at 835-36; see also Dunn v. State, 819 S.W.2d 510, 523 (Tex. Crim. App. 1991) ("It is not a requirement that the [defendant] have the skill and experience of an attorney before he is able to embark on this venture.").
Here, the record reflects that the trial court sufficiently apprised appellant of the risks, dangers, and disadvantages of self-representation, including that he would not be granted special consideration with respect to the rules of evidence and procedure, and it ensured that he understood the nature of the charge against him. Cf. Calton, 2005 WL 3082202, at *2. Appellant does not assert that he was coerced into waiving his right to counsel or into representing himself. Thus, we hold that appellant's decision to waive his right to counsel and represent himself was made knowingly, intelligently, and voluntarily, and the trial court did not err in allowing appellant to waive his right to counsel and exercise his right to self-representation.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.