Court of Appeals Tenth Appellate District of Texas
10-24-00051-CR
Addison Kuria Ngumba, Appellant
v.
The State of Texas, Appellee
On appeal from the County Court at Law No. 3 of Ellis County, Texas Judge Joseph R. Gallo, presiding Trial Court Cause No. 2310328
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
Addison Kuria Ngumba was convicted of assault/family violence, a Class A
misdemeanor, and sentenced to 365 days in jail. See TEX. PENAL CODE § 22.01.
We affirm the trial court’s judgment.
SELF-REPRESENTATION1
Ngumba’s first two issues address his decision to represent himself at trial.
1 Because Ngumba does not challenge the sufficiency of the evidence to support his conviction, we do not discuss the factual basis for his charge and conviction. Background
The trial court appointed counsel for Ngumba. On January 18, 2024, the
State and Ngumba’s counsel participated in jury selection for Ngumba’s trial. Six
jurors and two alternates were selected and told to return for trial on January 24,
2024.
The morning of trial and prior to swearing in the jury, Ngumba informed
the trial court that he would like to “relieve his lawyer” and proceed to trial
without counsel. The trial court admonished Ngumba as to the dangers and
disadvantages associated with proceeding pro se, but Ngumba remained adamant
in his desire to proceed without trial counsel and completed a written waiver to
that effect. The trial court granted Ngumba’s request and permitted Ngumba to
represent himself. But, as a precautionary measure, the trial court also
permitted Ngumba’s former trial counsel to remain present, in the gallery of the
courtroom, during the entire trial if needed by Ngumba.
Suggestion of Incompetency
Ngumba first contends the trial court should have conducted an inquiry
into Ngumba’s competency when Ngumba waived his right to counsel and
represented himself at trial.
The prosecution and conviction of a defendant while legally incompetent
violates the fundamental interests of due process. Petetan v. State, 622 S.W.3d
321, 336 (Tex. Crim. App. 2021). “A defendant is presumed competent to stand
Ngumba v. State Page 2 trial and shall be found competent to stand trial unless proved incompetent by a
preponderance of the evidence.” TEX. CODE CRIM. PROC. art. 46B.003(b). A
defendant is incompetent to stand trial for a criminal offense if he does not have:
(1) sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding; or (2) a rational, as well as factual, understanding of
the proceedings against him. Id. at (a); Williams v. State, 707 S.W.3d 233, 241
(Tex. Crim. App. 2024).
If evidence suggesting a defendant may be incompetent to stand trial comes
to the trial court's attention, “the court on its own motion shall suggest that the
defendant may be incompetent to stand trial” and “shall determine by informal
inquiry whether there is some evidence from any source that would support a
finding that the defendant may be incompetent to stand trial.” TEX. CODE CRIM.
PROC. art. 46B.004(b)-(c). An informal inquiry is required upon a “suggestion”
from any credible source that the defendant may be incompetent. Id. at (a), (c),
(c-1); Williams, 707 S.W.3d at 242.
We review a trial court's decision regarding an informal competency
inquiry for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex.
Crim. App. 2009), superseded on other grounds by statute, Turner v. State, 422
S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013). In conducting our review, we do
not substitute our judgment for that of the trial court, but rather, we determine
whether the trial court's decision was arbitrary or unreasonable. Id.
Ngumba v. State Page 3 On appeal, Ngumba contends that his stated request at the start of the trial
to represent himself and the State’s and his appointed counsel’s surprise at his
request constituted a suggestion of incompetency that should have triggered an
informal inquiry. He provides no case authority, and we have found none, to
support his argument. Regardless, nothing in the record suggests Ngumba was
incompetent. He understood the charge and knew the range of punishment.
Over the course of the entire trial, Ngumba gave an opening statement, objected,
called witnesses, cross-examined witnesses, admitted evidence, consulted with
“standby” counsel, and presented closing arguments. He did not have any
outbursts or exhibit any bizarre behavior during his self-representation. He also
presented a consistent theory of the case—that he and his wife had an argument
but that his wife’s friends influenced her to call the police and that the State could
not prove when she was injured.
Accordingly, after reviewing the record and the statutory authority, we find
the trial court did not abuse its discretion in failing to conduct an informal inquiry
pursuant to article 46B.004(b)-(c) of the Texas Code of Criminal Procedure.
Ngumba’s first issue is overruled.
Waiver of Counsel
Next, Ngumba asserts his waiver of counsel was ineffective, and thus, he
was deprived of the right to the assistance of counsel.
Every criminal defendant has a constitutional right to the assistance of
Ngumba v. State Page 4 counsel and a constitutional right to self-representation. U.S CONST. amend. VI;
TEX. CONST. art. I § 10; Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525,
45 L. Ed. 2d 562 (1975); Osorio-Lopez v. State, 663 S.W.3d 750, 756 (Tex. Crim.
App. 2022). A defendant’s assertion of the right to self-representation must be
clear and unequivocal. Osorio-Lopez v. State, 663 S.W.3d 750, 756 (Tex. Crim.
App. 2022).
When a defendant asserts the right to self-representation, the trial judge
must inform the defendant of “the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows what he is doing
and his choice is made with eyes open.’” Faretta v. California, 422 U.S. 806, 835,
95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (quoting Adams v. United States,
317 U.S. 269, 279, 63 S. Ct. 236, 241-42, 87 L. Ed. 268 (1942)). A defendant's
waiver of the right to counsel is not effective unless the record reflects that it is
made intelligently and knowingly with full knowledge of the right to counsel
being abandoned and the perils of self-representation. See Faretta, 422 U.S. at
835, 95 S. Ct. at 2541; Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App.
2008). To assess whether a waiver is effective, we consider the totality of the
circumstances. Williams, 252 S.W.3d at 356.
Ngumba contends his waiver was ineffective because, when asked if his
decision to represent himself was made intelligently, he replied, “I hope so.” But
Ngumba takes his reply out of context and ignores the significant amount of time
Ngumba v. State Page 5 the trial court spent confirming that Ngumba understood the risks he was taking
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Court of Appeals Tenth Appellate District of Texas
10-24-00051-CR
Addison Kuria Ngumba, Appellant
v.
The State of Texas, Appellee
On appeal from the County Court at Law No. 3 of Ellis County, Texas Judge Joseph R. Gallo, presiding Trial Court Cause No. 2310328
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
Addison Kuria Ngumba was convicted of assault/family violence, a Class A
misdemeanor, and sentenced to 365 days in jail. See TEX. PENAL CODE § 22.01.
We affirm the trial court’s judgment.
SELF-REPRESENTATION1
Ngumba’s first two issues address his decision to represent himself at trial.
1 Because Ngumba does not challenge the sufficiency of the evidence to support his conviction, we do not discuss the factual basis for his charge and conviction. Background
The trial court appointed counsel for Ngumba. On January 18, 2024, the
State and Ngumba’s counsel participated in jury selection for Ngumba’s trial. Six
jurors and two alternates were selected and told to return for trial on January 24,
2024.
The morning of trial and prior to swearing in the jury, Ngumba informed
the trial court that he would like to “relieve his lawyer” and proceed to trial
without counsel. The trial court admonished Ngumba as to the dangers and
disadvantages associated with proceeding pro se, but Ngumba remained adamant
in his desire to proceed without trial counsel and completed a written waiver to
that effect. The trial court granted Ngumba’s request and permitted Ngumba to
represent himself. But, as a precautionary measure, the trial court also
permitted Ngumba’s former trial counsel to remain present, in the gallery of the
courtroom, during the entire trial if needed by Ngumba.
Suggestion of Incompetency
Ngumba first contends the trial court should have conducted an inquiry
into Ngumba’s competency when Ngumba waived his right to counsel and
represented himself at trial.
The prosecution and conviction of a defendant while legally incompetent
violates the fundamental interests of due process. Petetan v. State, 622 S.W.3d
321, 336 (Tex. Crim. App. 2021). “A defendant is presumed competent to stand
Ngumba v. State Page 2 trial and shall be found competent to stand trial unless proved incompetent by a
preponderance of the evidence.” TEX. CODE CRIM. PROC. art. 46B.003(b). A
defendant is incompetent to stand trial for a criminal offense if he does not have:
(1) sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding; or (2) a rational, as well as factual, understanding of
the proceedings against him. Id. at (a); Williams v. State, 707 S.W.3d 233, 241
(Tex. Crim. App. 2024).
If evidence suggesting a defendant may be incompetent to stand trial comes
to the trial court's attention, “the court on its own motion shall suggest that the
defendant may be incompetent to stand trial” and “shall determine by informal
inquiry whether there is some evidence from any source that would support a
finding that the defendant may be incompetent to stand trial.” TEX. CODE CRIM.
PROC. art. 46B.004(b)-(c). An informal inquiry is required upon a “suggestion”
from any credible source that the defendant may be incompetent. Id. at (a), (c),
(c-1); Williams, 707 S.W.3d at 242.
We review a trial court's decision regarding an informal competency
inquiry for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex.
Crim. App. 2009), superseded on other grounds by statute, Turner v. State, 422
S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013). In conducting our review, we do
not substitute our judgment for that of the trial court, but rather, we determine
whether the trial court's decision was arbitrary or unreasonable. Id.
Ngumba v. State Page 3 On appeal, Ngumba contends that his stated request at the start of the trial
to represent himself and the State’s and his appointed counsel’s surprise at his
request constituted a suggestion of incompetency that should have triggered an
informal inquiry. He provides no case authority, and we have found none, to
support his argument. Regardless, nothing in the record suggests Ngumba was
incompetent. He understood the charge and knew the range of punishment.
Over the course of the entire trial, Ngumba gave an opening statement, objected,
called witnesses, cross-examined witnesses, admitted evidence, consulted with
“standby” counsel, and presented closing arguments. He did not have any
outbursts or exhibit any bizarre behavior during his self-representation. He also
presented a consistent theory of the case—that he and his wife had an argument
but that his wife’s friends influenced her to call the police and that the State could
not prove when she was injured.
Accordingly, after reviewing the record and the statutory authority, we find
the trial court did not abuse its discretion in failing to conduct an informal inquiry
pursuant to article 46B.004(b)-(c) of the Texas Code of Criminal Procedure.
Ngumba’s first issue is overruled.
Waiver of Counsel
Next, Ngumba asserts his waiver of counsel was ineffective, and thus, he
was deprived of the right to the assistance of counsel.
Every criminal defendant has a constitutional right to the assistance of
Ngumba v. State Page 4 counsel and a constitutional right to self-representation. U.S CONST. amend. VI;
TEX. CONST. art. I § 10; Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525,
45 L. Ed. 2d 562 (1975); Osorio-Lopez v. State, 663 S.W.3d 750, 756 (Tex. Crim.
App. 2022). A defendant’s assertion of the right to self-representation must be
clear and unequivocal. Osorio-Lopez v. State, 663 S.W.3d 750, 756 (Tex. Crim.
App. 2022).
When a defendant asserts the right to self-representation, the trial judge
must inform the defendant of “the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows what he is doing
and his choice is made with eyes open.’” Faretta v. California, 422 U.S. 806, 835,
95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (quoting Adams v. United States,
317 U.S. 269, 279, 63 S. Ct. 236, 241-42, 87 L. Ed. 268 (1942)). A defendant's
waiver of the right to counsel is not effective unless the record reflects that it is
made intelligently and knowingly with full knowledge of the right to counsel
being abandoned and the perils of self-representation. See Faretta, 422 U.S. at
835, 95 S. Ct. at 2541; Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App.
2008). To assess whether a waiver is effective, we consider the totality of the
circumstances. Williams, 252 S.W.3d at 356.
Ngumba contends his waiver was ineffective because, when asked if his
decision to represent himself was made intelligently, he replied, “I hope so.” But
Ngumba takes his reply out of context and ignores the significant amount of time
Ngumba v. State Page 5 the trial court spent confirming that Ngumba understood the risks he was taking
by proceeding without counsel. The trial court emphasized that Ngumba would
be expected to follow the same rules and procedures as an attorney which would
be a difficult task given Ngumba’s lack of training as an attorney. The trial court
reviewed the charge against Ngumba, the punishment range for the offense, and
other collateral consequences, and requested confirmation that Ngumba
understood each. Ngumba understood all dangers and disadvantages that the
trial court communicated to him. The trial court also asked Ngumba whether he
would like a recess to consider his decision and its disadvantages. Ngumba
rejected this offer and unequivocally responded “yes,” when asked whether his
decision to waive his right to counsel was knowing and voluntary. Further, the
trial court read a form waiver of representation to Ngumba which Ngumba
signed.
Simply because Ngumba responded “I hope so” to whether his decision to
waive his rights was made intelligently does not mean we disregard the warnings
given and understood or Ngumba’s affirmations to the trial court’s questions.
Rather, based on the totality of the circumstances of the interaction between the
trial court and Ngumba, the record demonstrates that Ngumba clearly and
unequivocally requested to represent himself, intelligently waived his right to be
represented by counsel, and made his choice with “eyes open.”
Ngumba’s second issue is overruled.
Ngumba v. State Page 6 ADMISSION OF EVIDENCE
In his last issue, Ngumba contends the trial court erred in admitting
photographic evidence over Ngumba’s objection because its probative value was
substantially outweighed by the danger of unfair prejudice under Texas Rule of
Evidence 403. However, that objection was not made at trial. Instead, Ngumba
objected on the grounds that he did not know when the photographs were taken.
Because the basis of Ngumba’s complaint on appeal varies from the
complaint raised at trial, it is not preserved for appellate review. See Lovill v.
State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Ibarra v. State, 11 S.W.3d
189, 197 (Tex. Crim. App. 1999). See also Ali Awad Mahmoud Irsan v. State, 708
S.W.3d 584, 613 n.8 (Tex. Crim. App. 2025).
Ngumba’s third issue is overruled.
CONCLUSION
Having overruled each issue presented on appeal, we affirm the trial court’s
judgment.
LEE HARRIS Justice
OPINION DELIVERED and FILED: August 21, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CR25
Ngumba v. State Page 7