Opinion issued May 7, 2020.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00301-CR ——————————— KHANCHANAT PHANKHAO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1498433
MEMORANDUM OPINION
Khanchanat Phankhao was convicted of aggravated sexual assault of a child
and sentenced to confinement for life. See TEX. PENAL CODE § 22.021(a)(1)(B)(i).
In two issues, Phankhao contends that (1) there is legally insufficient evidence to support his conviction and (2) the trial court abused its discretion in allowing him
to waive his right to counsel and represent himself pro se at trial.
We affirm.
Factual Background
This is a sexual assault case in which the defendant, Khanchanat Phankhao,
was convicted for having sexual intercourse with his friend’s minor daughter. The
following facts are undisputed.
Phankhao becomes friends with Jane’s family
In 2011, Lamoune Douangdara moved from Laos to the United States with
her twin boys and her daughter, the complainant, Jane1. They eventually settled in
Houston, Texas, where Douangdara began working at an electronics manufacturing
plant. There, she met Phankhao, another immigrant from Southeast Asia, and the
two became friends.
Over the years, Phankhao would often come over to Douangdara’s house to
visit her and her children. When Phankhao would visit, Jane always seemed very
happy to see him, and she eventually began to act like she was in love with him. At
some point, Phankhao and Jane began talking at night over the phone. Their
conversations would often last for hours.
1 To protect her privacy and for ease of reading, we refer to the complainant by the pseudonym Jane. 2 Jane admits to her mother that Phankhao had sex with her
One night in 2015, Douangdara discovered that Jane, then 13 years old, had
sneaked out of the house. Douangdara stayed up so that she could confront Jane
when she returned. Early that following morning, Douangdara observed Phankhao
dropping off Jane at a stop sign near their house. When Jane entered the house,
Douangdara asked her where she had been, and Jane stated that she had gone for a
walk. But upon further questioning, Jane admitted that she had been with
Phankhao and that they had had sex.
A sexual assault examination, forensic interview, and analysis of semen recovered from Jane’s body corroborate Jane’s outcry
Douangdara called the police, who instructed her to take Jane to Texas
Children’s Hospital for a sexual assault examination. At the hospital, Jane was
examined by sexual assault nurse examiner A. Diaz. During the examination, Diaz
questioned Jane about the incident, and Jane admitted that she had sexual
intercourse with Phankhao. Diaz found Jane to be credible. Diaz then collected
vaginal and anal swabs from Jane, which were submitted to the Harris County
Institute of Forensic Sciences for DNA analysis.
After her sexual assault examination, Jane was taken to the Children’s
Assessment Center, where she spoke with forensic interviewer A. Diop. Jane told
Diop that she was in a relationship with Phankhao and that the two had sexual
intercourse the night she sneaked out. Like Diaz, Diop found Jane to be credible. 3 Meanwhile, Harris County Sheriff’s Office Investigator J. Craig obtained
and executed a search warrant for a sample of Phankhao’s saliva to compare with
the DNA collected from the swabs of Jane. The analysis detected semen on the
vaginal and anal swabs obtained from Jane. The DNA profile from the semen was
then compared to the DNA profile from the swabs of Phankhao. Phankhao could
not be excluded as a possible source of the DNA on the vaginal and anal swabs.
Based on the FBI’s 2015 Amended Population Database, the profile obtained from
the vaginal and anal swabs is expected to occur in approximately 1 in 350
sextillion Caucasians, 1 in 376 sextillion African Americans, and 1 in 142
sextillion Hispanics. The profile is expected to occur in other ethnicities with
similar frequency.
Phankhao was later interviewed by A. Vera, an investigator with the Harris
County Sheriff’s Office. Phankhao initially denied knowing Jane’s name, but he
eventually acknowledged that he was a friend of Douangdara and described his
relationship with Jane as that of a father-figure. Phankhao denied having
intercourse or other sexual contact with Jane. He stated that his DNA should not be
on her clothing.
4 Procedural History
Phankhao is indicted and appointed counsel, but then requests that he be permitted to represent himself pro se
Phankhao was indicted for aggravated sexual assault of a child under 14
years of age. See id. Spencer Graham was appointed as his attorney. Shortly after
the appointment, Phankhao filed a motion to substitute Wilvin Carter as his
attorney, which the trial court granted. Shortly after that, Carter filed a motion to
withdraw. The trial court granted Carter’s motion and appointed public defender
Jane Vara as Phankhao’s attorney. At some point, Phankhao informed Vara that he
wanted to represent himself pro se, and Vara scheduled a Faretta hearing.2
After two hearings, the trial judge permits Phankhao to waive his right to counsel and proceed pro se
At the first hearing, the trial judge asked Phankhao why he wanted to
represent himself pro se. Phankhao responded that he knew “a little bit more about
what happened” than his attorney. The trial judge then explained to Phankhao that
if he represented himself, he would not be allowed to “just get up and just talk
about what happened.” Instead, the trial judge explained, he would have to follow
the rules of evidence and procedure.
The trial judge asked Phankhao whether he had any prior experience
representing himself in court, and Phankhao responded that he did not. The trial
2 Named after the seminal Supreme Court opinion issued in Faretta v. California, 422 U.S. 806 (1975). 5 judge asked Phankhao whether he understood the charges filed against him, and
Phankhao responded that he did not. The trial judge asked Phankhao whether he
knew the range of punishment, and Phankhao replied that he did, but then gave an
incorrect range, stating that it was 25 to 99 years, when it was actually 5 to 99
years or life. See id. § 12.32(a). The trial judge asked Phankhao what was the
purpose of voir dire and the opening statement. Phankhao responded that the
purpose of voir dire was “to show evidence to the jury [and] let them know what
can be presented and what cannot be presented” and that the purpose of an opening
statement was to “show cause.” The trial judge then asked Phankhao’s attorney
whether there were any “communication problems” between her and Phankhao.
Phankhao’s attorney replied that there was “no language barrier . . . at all” but that
Phankhao emailed her “a lot” and only came to her office “some.”
At the end of the hearing, the trial judge denied Phankhao’s motion. But
Phankhao continued to request that he be permitted to represent himself pro se. At
the trial judge’s request, Vara and the State filed briefs on the issue. The briefs
emphasized that (1) Phankhao had a constitutional right to represent himself pro se,
(2) Phankhao’s lack of legal acumen was not a proper ground for denying his
request, and (3) a violation of his right to self-representaiton would be a structural
error not subject to harm analysis. Vara then scheduled a second Faretta hearing.
6 The trial judge began the second hearing by inquiring into Phankhao’s
background, age, experience, and education. Phankhao testified that he was 40
years old and currently unemployed but had previously worked as an electrical
engineer and realtor. Phankhao further testified that he had an associate’s degree in
electrical engineering and a real estate license. Finally, Phankhao testified that he
had no prior legal experience and no legal background.
The trial judge then admonished Phankhao of the dangers and disadvantages
of self-representation. The trial judge told Phankhao that if he represented himself
pro se and was found guilty, he would “suffer the consequences,” including a
prison sentence of up to 99 years and a fine of up to $10,000. See id. § 12.32. The
trial judge explained that Phankhao would not be “allowed to get up and ramble
and talk and tell [his] side of the story[,]” which, the trial judge noted, seemed to
be what Phankhao wanted to do. Instead, the trial judge explained, Phankhao
would “be held to the same standard” as an attorney and would therefore have to
follow the rules of evidence and procedure. The trial judge emphasized that
Phankhao’s attorney knew these rules and would thus be able to properly present
evidence and respond to objections on Phankhao’s behalf. The trial judge said that
she could not think of any advantage to Phankhao representing himself pro se, save
perhaps not incurring attorney’s fees.
7 The trial judge then asked Phankhao whether he understood that if he
represented himself pro se, he would be waiving his right to have an attorney
present his defense in compliance with the rules of evidence and procedure.
Phankhao responded that he did. The trial judge then asked Phankhao whether he
still wanted to waive his right to counsel and represent himself pro se. Phankhao
responded that he did.
At the end of the second hearing, the trial judge granted Phankhao’s motion.
Vara withdrew as Phankhao’s attorney, and Phankhao proceeded to represent
himself pro se.
Phankhao is tried and convicted
When the case went to trial, the State presented testimony from Douangdara,
Diaz, Craig, Diop, and Vera. The State also presented testimony from Dustin
Foley, the analyst who prepared the report comparing the DNA profile from semen
found on Jane to the DNA profile from the cheek swabs obtained from Phankhao.
Phankhao did not present any witnesses or evidence of his own. Jane did not
testify.
The jury found Phankhao guilty and assessed his punishment at confinement
for life. The trial judge entered judgment in accordance with the jury’s verdict.
Phankhao was appointed appellate counsel, and he appealed.
8 Legal Sufficiency
We begin with Phankhao’s second issue, in which he contends that there is
legally insufficient evidence to support his conviction for aggravated sexual
assault. We address the legal-sufficiency issue first because, if sustained, it would
result in an acquittal, whereas Phankhao’s first issue, involving his waiver of the
right to counsel, would, if sustained, result in a new trial.
A. Applicable law and standard of review
Under the Penal Code, a defendant commits aggravated sexual assault if he
intentionally or knowingly causes the sexual organ of a child under 14 years of age
to contact the sexual organ of the defendant. See id. § 22.021(a)(1)(B)(iii), (2)(b).
We must review the evidence in the light most favorable to the verdict and ask
whether any rational trier of fact could have found beyond a reasonable doubt that
Phankhao caused Jane’s sexual organ to contact his sexual organ while Jane was
younger than 14 years of age. Fernandez v. State, 479 S.W.3d 835, 837–38 (Tex.
Crim. App. 2016). If a rational factfinder could have so found, we will not disturb
the verdict on appeal. Id. at 838.
B. Analysis
At trial, the State presented testimony from: (1) Jane’s mother, who testified
that Jane admitted to her that she had sexual intercourse with Phankhao when she
was 13 years old; (2) the sexual assault nurse examiner who examined Jane, who
9 testified that Jane admitted to her that she had sexual intercourse with Phankhao
and that she found Jane to be credible; (3) the forensic interviewer who
interviewed Jane, who likewise testified that Jane admitted to her that she had
sexual intercourse with Phankhao and that she found Jane to be credible; and (4)
Foley, the DNA analyst, who authenticated the report prepared by the Harris
County Institute of Forensic Sciences and summarized and explained the report’s
findings and conclusions from the analysis and comparison of the swabs taken
from Jane and Phankhao.
In summarizing the report’s findings, Foley testified that semen was found
on the vaginal and anal swabs obtained from Jane. Foley further testified that the
DNA profile obtained from the sperm fraction of the vaginal and anal swabs were
consistent with a single-source male and that Phankhao could not be excluded as a
possible source. Foley testified that the profile obtained from the vaginal and anal
swabs is expected to occur in approximately 1 in 350 sextillion Caucasians, 1 in
376 sextillion African Americans, and 1 in 142 sextillion Hispanics. Foley
explained that the profile is expected to occur in other ethnicities with similar
frequency.
Phankhao did not present any witnesses or testimony of his own, and he did
not elicit any rebuttal testimony on cross-examination. The State’s evidence was
thus uncontested. Phankhao nevertheless argues that the evidence is legally
10 insufficient to support his conviction because the testimony of the State’s witnesses
was not credible. We disagree. It is well-established that “the credibility of a
witness is an issue for the jury to decide.” Solomon v. State, 49 S.W.3d 356, 362
(Tex. Crim. App. 2001); see Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim.
App. 2018) (reviewing court is “required to defer to the jury’s credibility and
weight determinations”). And the jury found the witnesses credible.
The testimony, moreover, was corroborated by the semen recovered from
Jane’s anus and vagina and the results of the DNA analysis, which indicated the
semen came from Phankhao.
Viewing the evidence in the light most favorable to the verdict, we hold that
a rational trier of fact could have found beyond a reasonable doubt that Phankhao
caused Jane’s sexual organ to contact his sexual organ while Jane was younger
than 14 years of age.
We overrule Phankhao’s second issue.
Waiver of Right to Counsel
In his first issue, Phankhao contends that the trial court abused its discretion
in allowing him to waive his right to counsel and exercise his right to self-
representation. Phankhao argues that his waiver was not knowingly and
intelligently made because the trial court failed to properly admonish him of the
dangers and disadvantages of self-representation.
11 A. Applicable law and standard of review
In all criminal prosecutions, the defendant has the right to assistance of
counsel. U.S. CONST. amend. VI; TEX. CODE CRIM. PROC. art. 1.051(a). The
defendant likewise has the reciprocal right to self-representation. TEX. CODE CRIM.
PROC. art. 1.051(f); Faretta v. California, 422 U.S. 806, 821 (1975). The right to
self-representation extends to all criminal prosecutions, even prosecutions for
capital murder in which the State seeks the death penalty. See Moore v. State, 999
S.W.2d 385, 396 (Tex. Crim. App. 1999).
To exercise the right to self-representation, the defendant must waive the
right to assistance of counsel. Johnson v. State, 760 S.W.2d 277, 280 (Tex. Crim.
App. 1988) (Onion, J., concurring in part and dissenting in part) (“In the wake
of Faretta it has been the new unanimous view that the assertion by an accused of
his right to self-representation is dependent, in part, upon a waiver of his right to
counsel.”); see also Hathorn v. State, 848 S.W.2d 101, 123 (Tex. Crim. App. 1992)
(“[A]n accused’s right to proceed pro se does not attach until he clearly and
unequivocally asserts it.”).
To be constitutionally effective, the waiver must be made (1) competently,
(2) knowingly and intelligently, and (3) voluntarily. Moore, 999 S.W.2d at 396;
Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997). If the defendant
satisfies these three elements, the trial court must allow the defendant to waive his
12 right to counsel and proceed pro se, see Hathorn, 848 S.W.2d at 123, even if the
defendant lacks an understanding of the law and is not otherwise qualified to
represent himself, see Godinez v. Moran, 509 U.S. 389, 400 (1993) (“[T]he
defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the determination
whether he is competent to waive his right to counsel.”); Blankenship v. State, 673
S.W.2d 578, 584 (Tex. Crim. App. 1984) (holding that defendant’s failure to
answer trial court’s legal questions correctly did not constitute proper ground for
denying defendant’s request to waive counsel).
The issue here concerns the second element of the waiver test—whether
Phankhao’s waiver was knowingly and intelligently made. “The decision to waive
counsel and proceed pro se is made ‘knowingly and intelligently’ if it is made with
a full understanding of the right to counsel, which is being abandoned, as well as
the dangers and disadvantages of self-representation.” Moore, 999 S.W.2d at 396
n.5. To ensure a defendant’s waiver is knowing and intelligent, the trial judge must
question and admonish the defendant about his request. Blankenship, 673 S.W.2d
at 583.
In questioning the defendant, the trial judge need not follow a particular
formula or script but should generally inquire into the defendant’s background,
age, experience, and education, unless these factors are otherwise apparent from
the record. See Johnson, 760 S.W.2d at 278–79.
13 In admonishing the defendant, the trial judge must generally warn the
defendant “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.”
Sitawisha v. State, 496 S.W.3d 826, 831 (Tex. App.—Houston [1st Dist.] 2016,
pet. ref’d) (quoting Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App.
2008)). However, the trial judge has no duty to provide “more detailed
admonitions about specific procedures,” such as “the method for invoking the right
to expert assistance at the State’s expense, or when that right might arise.”
Sitawisha, 496 S.W.3d at 831. Nor must the trial judge advise the defendant of
“possible defenses or mitigating circumstances before the right can be exercised.”
Fletcher v. State, 474 S.W.3d 389, 399 (Tex. App.—Houston [14th Dist.] 2015,
pet. ref’d).
We review the trial judge’s ruling that the defendant’s waiver was
knowingly and intelligently made for an abuse of discretion. See Rodriguez v.
State, 491 S.W.3d 18, 28 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
At the second hearing, the trial judge inquired into Phankhao’s background,
age, experience, and education. Phankhao testified that he was 40 years old and
currently unemployed but that he had previously worked as an electrical engineer
14 and a realtor. He further testified that had an associate’s degree in electrical
engineering and a real estate license but no legal education or experience.
The trial judge then admonished Phankhao about the dangers and
disadvantages of self-representation. The trial judge told Phankhao that if he
represented himself pro se and was found guilty, he would “suffer the
consequences,” including a prison sentence of up to 99 years and a fine of up to
$10,000.3 The trial judge explained that Phankhao would not be “allowed to get up
and ramble and talk and tell [his] side of the story[,]” which, the trial judge noted,
seemed to be what Phankhao wanted to do. Instead, the trial judge explained,
Phankhao would “be held to the same standard” as an attorney and would thus be
required to comply with the rules of evidence and procedure. The trial judge
emphasized that Phankhao’s attorney knew these rules and would thus be able to
properly present evidence and respond to objections on Phankhao’s behalf. The
trial judge said that she could not think of any advantage to Phankhao representing
himself pro se, save perhaps not incurring attorney’s fees.
The trial judge then asked Phankhao whether he understood that if he
represented himself pro se, he would be waiving his right to have an attorney
3 We note that the applicable punishment range was five to 99 years’ confinement or confinement for life. See TEX. PENAL CODE § 12.32(a). While the trial judge failed to inform Phankhao that he faced the possibility of confinement for life if convicted, we do not believe that affected the sufficiency of her admonishments.
15 present his defense in compliance with the rules of evidence and procedure.
Phankhao responded that he did. The trial judge then asked Phankhao whether he
still wanted to waive his right to counsel and represent himself pro se. Phankhao
These admonishments satisfy the requirement that the trial judge generally
warn the defendant 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.” Sitawisha, 496 S.W.3d at 831 (quoting Williams, 252 S.W.3d at 356).
Phankhao nevertheless argues that his waiver was not knowingly and intelligently
made because the trial judge failed to provide several “critical admonishments,”
including “those covering the specific charge he faced as well as the possible
mitigating circumstances and defenses.”
The record reflects that the trial judge did not advise Phankhao of the
charges against him at the second hearing. Phankhao argues that this is significant
because he had stated at the first hearing that he did not understand the pending
charges. For this reason, Phankhao contends that the trial judge had a duty to
confirm he understood the charges against him before permitting him to waive his
right to counsel. Because the trial judge failed to do so, Phankhao argues that his
waiver was not knowing and intelligent. We disagree.
16 Although the trial judge failed to confirm that Phankhao understood the
charges against him at the second hearing, the record nevertheless reflects that
Phankhao was informed of and represented he understood the charges on numerous
other occasions, including at (1) his initial appearance, (2) a hearing on the State’s
motion to revoke bond, and (3) his arraignment. Given Phankhao’s statements at
the first hearing, it would have been prudent for the trial judge to have verified
Phankhao understood the pending charges at the second hearing. But, in light of
the record as a whole, the trial judge was not required to do so before finding
Phankhao’s waiver knowing and intelligent and permitting him to waive his right
to counsel.
We further disagree with Phankhao’s contention that the trial judge had a
duty to inform him of possible defenses and mitigating circumstances. Phankhao
has not pointed us to any possible defenses or mitigating circumstances of which
the trial judge failed to advise him. The caselaw makes clear that “no formulaic
questioning” or “script” is required to establish a knowing and intelligent waiver.
Blankenship, 673 S.W.2d at 583. And neither opinion cited by Phankhao in support
of his contention—the Court of Criminal Appeals’ opinion in Blankenship, 673
S.W.2d at 583–84, and the United States Supreme Court’s plurality opinion in Von
Moltke v. Gillies, 332 U.S. 708, 724–25 (1948)—actually held that the trial judge’s
admonitions were inadequate due to the judge’s failure to inform the defendant of
17 possible defenses and mitigating circumstances. Rather, Blankenship held that the
trial judge had erred by forcing counsel on a defendant on the ground that he
lacked understanding of the law and was not qualified to represent himself. 673
S.W.2d at 584. Von Moltke involved an unrepresented German defendant who
pleaded guilty to espionage after routine questioning by the trial judge and without
being advised at all of the consequences of her plea (including a possible death
sentence). 332 U.S. at 709–10. In addition, the defendant in Von Moltke did not
assert a right to self-representation. Faretta does not require a trial judge to inform
a defendant of possible defenses or mitigating circumstances before that right can
be exercised.
Phankhao argues that the trial judge should have provided more detailed
admonitions in this particular case due to the gravity of the offense. We disagree.
The Court of Criminal Appeals has held that similar admonitions were adequate in
cases where the defendant was charged with a first-degree felony, including capital
murder. Collier, 959 S.W.2d at 626 (holding that defendant in prosecution for
capital murder knowingly and intelligently waived right to counsel when trial
judge (1) explained to defendant that there were technical rules of evidence and
procedure that applied at trial, that he would not be granted any special
consideration with respect to these rules, and that as a result he might be
disadvantaged both at trial and in any appeal that might follow, (2) explained
18 charges against defendant and possible range of punishment, and (3) tried
repeatedly to impress upon defendant extreme gravity of his request to proceed pro
se and likelihood that it was a serious mistake).
Phankhao analogizes this case to Buster v. State, in which the court of
appeals held that the trial judge failed to sufficiently admonish the defendant
before allowing him to waive his right to counsel and represent himself pro se. 144
S.W.3d 71, 77–78 (Tex. App.—Tyler 2004, no pet.). In Buster, the record did not
show whether the defendant had been arraigned or advised of the nature of the
charges against him and the statutory offenses included within those charges. The
trial judge did not advise the defendant of the range of allowable punishments. Nor
did the trial judge specifically admonish the defendant that he would not be granted
any relief from the technicalities of the rules of evidence and procedure. 144
S.W.3d at 77–78. Thus, the record wholly failed to show that the defendant had
been properly admonished before waiving his right to counsel. That simply isn’t
the case here. The record affirmatively shows that Phankhao was arraigned and
informed of the charges against him. And, as discussed, the record affirmatively
shows that the trial judge’s admonitions satisfied the requirement that Phankhao be
generally warned that there are technical rules of evidence and procedure and that
he will not be granted any special consideration because he asserted his pro se
rights. Sitawisha, 496 S.W.3d at 831.
19 We hold that the record supports the trial judge’s finding that Phankhao’s
waiver was knowing and intelligent and that Phankhao has therefore failed to show
the trial judge abused her discretion in allowing him to waive his right to counsel
and exercise his right to self-representation.
We overrule Phankhao’s first issue.
Conclusion
Gordon Goodman Justice
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).