Opinion issued January 7, 2014.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00641-CR ——————————— ROBERT LEE HICKS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court Harris County, Texas Trial Court Case No. 1327680
MEMORANDUM OPINION
A jury convicted appellant of possession of less than one gram of a
controlled substance, and the trial court, after finding two enhancements true,
assessed punishment at 20 years’ confinement. In two points of error, appellant contends that the trial court erred in (1) failing to grant appellant’s request to
withdraw his waiver of counsel, (2) failing to hear appellant’s pro se motions after
granting appellant’s motion to proceed pro se, and (3) assessing costs based on
insufficient evidence. We affirm.
BACKGROUND
After being stopped for a traffic offense, appellant became argumentative
when told to put his hands on the steering wheel, so the police officer removed
appellant and his passenger from the car, handcuffed them, and placed them in the
back seat of his patrol car. Appellant provided the officer with his name and
identification, but his passenger gave a false name, which the officer knew to be
that of a Houston Texans football player. As the men were sitting in the back of
the patrol car, an officer saw appellant’s passenger crushing a white substance into
the floorboard. The officer arrested appellant based on the traffic offense he had
seen and the passenger based on suspicion of possession of crack cocaine.
Appellant was searched incident to arrest and police found four rocks of crack
cocaine in his sock. Police also recovered a .22 caliber pistol from the center
console of the vehicle. Appellant was charged with possession of a controlled
substance in an amount less than one gram, with two prior felony enhancements,
and with being a felon in possession of a handgun.
2 Appointment of Counsel and Pretrial Motions
On November 21, 2011, the trial court appointed Lisa Andrews to represent
appellant. After appellant was appointed counsel, but before counsel was allowed
to withdraw, appellant filed a pro se Writ of Mandamus, in which he sought to
compel the trial court to rule on his motion (1) to dismiss court appointed attorney,
(2) to proceed pro se, (3) for extra law library time, (4) to set indigent bond in both
cause numbers, (5) for an examining trial, (6) to meet with the grand jury, (7) to
suppress evidence, (8) to receive a full and complete copy of police report and all
officers statements, (9 for discovery and inspection of all evidence, (10) for the
appointment of a private investigator, (11) to have written rulings on all motions
filed, (12) for the assistance of a public defender in hybrid representation, (13) to
order court reporter to transcribe any and all proceedings, (14) in limine, and (15)
to dismiss without prejudice on grounds the co-defendant’s case was dismissed (no
probable cause).1
1 None of the motions referenced in this “Writ of Mandamus” appear in the record of this case. Appellant argues that they must have been placed in the file of his companion case, which he had expunged after he was acquitted on that charge. However, the motion for appointment of an investigator, which appellant challenges in his second point of error, was discussed on the record, thus, for purposes of this opinion we will assume that it was filed in this case also.
3 First Faretta Hearing Before Trial Court
On March 2, 2012, the trial court held a Faretta hearing2, and granted
appellant’s motion to proceed pro se. On the record, the trial court specifically
denied appellant’s request for hybrid representation. At the end of the Faretta
hearing, appellant asked, “Do you want to have that hearing on the writ,” to which
the trial court replied, “Like I said, you have to follow Rules of Procedure. You’re
on your own sir.” The trial court then signed an order making the findings required
under Faretta and granting appellant’s motion to waive counsel and proceed pro
se; appellant refused to sign the same order. Another order, titled Motion to
Withdraw as Attorney of Record” and signed by appellant and appointed counsel,
contains a handwritten notation “D wants to proceed pro se court allowed d/c to
w/d from case,” was signed by the trial court on the same day, but “denied” is
circled instead of “granted.”
Second Faretta Hearing and Pretrial Motions Before Visiting Judge
At a pretrial hearing on May 16, 2013, a visiting judge assigned to try the
case noticed that the motion had been marked “denied,” so he decided to hold a
second Faretta hearing the following day. At the second Faretta hearing,
2 To exercise the right to self-representation, a defendant must knowingly and intelligently forgo the benefits of counsel, and effectively waive the Sixth Amendment right to counsel. See Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975). Thus, a defendant “[s]hould be made aware of the dangers and disadvantages of self-representation” by the trial court.” Id. 4 appellant again asked for “standby” counsel, which the visiting judge again denied.
After providing the required admonishments, the trial judge asked appellant, “Do
you want to represent yourself? And this is the last time that I am going to ask
you.” Appellant replied, “I really do.”
After being allowed once again to proceed pro se, appellant asked, “Are we
going to have a motions hearing on my motions and on the writ?” The trial judge
responded affirmatively. The trial judge then ruled on the motions on appellant’s
“Writ of Mandamus” one by one. When discussing the motion for appointment of
a private investigator, the trial court initially said that the request was “untimely,”
then the following exchange took place:
[Appellant]: On the Motion for a Private Investigator, this is—I need this as part of my defense because I need the investigator to do the investigative work that I need him to do on my case; and this was never brought up in Judge Carter’s court because he kept me in the holdover. So I need to—
[Trial Judge]: You need to specify what it is that a private investigator would be investigating. What would he do for you? [Appellant]: Well, I need him to investigate the arresting officer on the percentage level of blacks that he has arrested because I am going on a level of racial profiling; and I need his arresting record.
[Trial Judge]: Well, is that it?
[Appellant]: And I also wanted to get the phone records of that night of when he called, supposedly he had called the D.A. to—
[Trial Judge]: When he did what?
[Appellant]: When he supposedly had called the D.A. 5 [Prosecutor]: I believe he is saying when the officer contacted D.A. intake to accept charges.
[Trial Judge]: I see. Okay. Well, basically with regard to the calling the D.A., that will come out. You may ask him that. You may also ask with regard to what percentage, if any, he knows or remembers that he has arrested members of the African community.
Trial Proceedings
Jury selection began immediately after the second Faretta hearing and the
rulings on appellant’s pretrial motions. After the jury was sworn, appellant asked
the trial judge why he, and not the jury, was going to determine punishment. The
trial court responded, “You didn’t file an election. If a person doesn’t file an
election, it goes automatically to the judge.” When appellant protested, the trial
court stated, “Well, that is the situation, sir. That is the dangers and disadvantages
of representing yourself.” The trial judge then recessed the proceedings until the
next day.
Appellant Moves to Withdraw Waiver of Counsel
The next day, the following exchange took place between appellant and the
trial judge:
[Appellant]: Well, I want to ask you one more question. Anytime during the trial, is it true that I can ask for assistance of counsel?
[Trial Judge]: No, sir. Here is the situation. You are not entitled to hybrid representation.
[Appellant]: I am not asking for that. I am asking for counsel. 6 [Trial Judge]: Well, see, that is hybrid representation. Listen to me. That is either whether they just sit there and they answer your questions or they actually assist you.
[Appellant]: I am asking for—
[Trial Judge]: That is not allowed, Mr. Hicks; and I told you that. Judge Carter went over that with you. I went over that with you.
[Appellant]: I am not talking about having hybrid representation. I am talking about having an attorney representing me in this case because I need representation because it is inadequate representation.
[Trial Judge]: Well, unfortunately you have indicated to me—and we have already picked this jury—that you wanted to represent yourself.
[Appellant]: I was thinking about it; and you took that as a yes, but I need—
[Trial Judge]: No, Mr. Hicks. I went over it several times; and finally you said, “Yes,” unequivocally. You refused to sign the papers with Judge Carter, but he granted your right even though you refused to sign it. So that is one judge that granted your right because you asked for it. I have now granted you that right. Mr. Hicks, I went over this over and over and over again; and you finally told me, “Yes, that is what I want to do.” So basically, that is where we are. Have a seat. Have a seat.
[Appellant]: But anytime during the trial I can ask for representation. Is that against the law?
[Trial Judge]: You may ask for it; but unfortunately we have picked the jury; and you have waived that right now. I will not allow you to speak any more about that. You objection to that and request is denied, sir. Now, are you ready for this jury?
[Appellant]: I guess so.
7 Although docket sheet entries suggest that appellant’s previously appointed trial
counsel, Lisa Andrews, was present in the courtroom, appellant never requested
that she be reappointed to represent him, and she was never appointed as standby
counsel and never made an appearance or announced ready at trial.
Conviction and Punishment
The jury acquitted appellant on the charge of being a felon in possession of a
firearm, but convicted him of possession of a controlled substance. After a
punishment hearing, the trial court found two enhancements true and assessed
punishment at 20 years’ confinement.
This appeal followed.
WITHDRAWAL OF WAIVER OF COUNSEL
In appellant’s first point of error, he contends that the trial court’s denial of
his request to withdraw his waiver of the right to counsel violated his constitutional
rights. The Sixth Amendment of the federal constitution guarantees both the right
to counsel and the corresponding right to self-representation. Faretta v.
California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); Hathorn v. State, 848
S.W.2d 101, 122–23 (Tex. Crim. App. 1992); see also Hatten v. State, 71 S.W.3d
332, 334 (Tex. Crim. App. 2002) (noting that Faretta rights are triggered when
accused contests guilt); TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon
2005) (recognizing right of accused to be heard by himself, through counsel, or
8 both); Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d).
In Faretta, the Supreme Court recognized that “[w]hen an accused manages
his own defense, he relinquishes . . . many of the traditional benefits associated
with the right to counsel” and concluded that in order to represent himself, an
“accused must ‘knowingly and intelligently’ forgo those relinquished
benefits.” 422 U.S. at 835, 95 S. Ct. at 2541. Such a decision, to be constitutionally
effective, must be made (1) competently, (2) knowingly and intelligently, and (3)
voluntarily. Godinez v. Moran, 509 U.S. 389, 400–401, 113 S. Ct. 2680, 2687
(1993); Faretta, 422 U.S. at 834–36, 95 S. Ct. at 2541.
Appellant concedes that his waiver of the right to counsel met all
constitutional and statutory requirements. He contends, however, that by not
permitting him to withdraw that waiver, the trial court violated article 1.051(h) of
the Code of Criminal Procedure, which provides:
A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.
TEX. CODE CRIM. PROC. ANN. art. 1.051(h) (Vernon Supp. 2013).
Appellant premises his argument on the trial court’s failure to appoint
counsel for him when he requested it on the morning of trial. An accused has the 9 right to withdraw his waiver of the right to counsel. See Funderburg v. State, 717
S.W.2d 637, 642 (Tex. Crim. App. 1986). However, the right to waive self-
representation is not without limits. “Trial courts have the duty, and discretion, to
maintain the orderly flow and administration of judicial proceedings, including the
exercise of a defendant’s right to counsel.” Medley v. State, 47 S.W.3d 17, 23 (Tex.
App.—Amarillo 2000, pet. ref’d) (citing Faretta, 422 U.S. at 834 n.46, 95 S. Ct.
2541 n.46). An accused’s right to represent himself or choose his own counsel
cannot be manipulated so as to obstruct the orderly procedure in the courts or to
interfere with the fair administration of justice. Hubbard v. State, 739 S.W.2d 341,
344 (Tex. Crim. App. 1987). A decision of the trial court as to the effect that the
reclamation of the right by the defendant would have on the orderly administration
of justice will not be disturbed on appeal absent an abuse of discretion. Medley, 47
S.W.3d at 24.
A criminal defendant who has waived the right to counsel but then seeks to
reclaim that right bears the burden of showing that his waiver would not (1)
interfere with the orderly administration of court business, (2) result in unnecessary
delay or inconvenience to witnesses, or (3) prejudice the State. Id. If the evidence
presented by defendant is rebutted by the State, the trial court, or the record, then
the trial court does not abuse its discretion in refusing to allow the right to be
reclaimed. Id.
10 Appellant relies on Morgan v. State, Nos. 01-94-00306-CR and 01-94-
00307-CR, 1995 WL 62843, at *1 (Tex. App.—Houston [1st Dist.] Feb. 16, 1995,
no pet.) (not designated for publication) to argue that the trial court erred by
refusing to allow him to withdraw his waiver of the right to counsel. In Morgan,
on the day appellant’s trial was to begin, his appointed counsel appeared on his
behalf and announced “ready.” Id. The next day, after being admonished
according to Faretta, appellant voluntarily waived his right to counsel, and his
appointed counsel was then appointed as “stand-by” counsel. Id. After the direct
examination of the first witness, appellant orally moved to withdraw his waiver of
the right to counsel, which the trial court denied. Id. On appeal, this Court held
that appellant should have been allowed to withdraw his waiver of the right to
counsel because “[t]he counsel previously appointed to represent appellant . . . was
present and had announced ready” and “could have immediately entered the case
and represented appellant.” Id.
Morgan, however, is distinguishable. Here, the trial court conducted a
Faretta hearing over two weeks before the trial began, at which appellant
requested hybrid representation or appointment of stand-by counsel, which the trial
court denied.3 That same day, the trial court signed an order granting defendant’s
3 A pro se defendant has no right to either standby counsel or hybrid representation. See United States v. Oliver, 630 F.3d 397, 413–14 (5th Cir. 2011), Robinson v. 11 motion to proceed pro se, even though appellant refused to sign the waiver of the
right to counsel at that time. This case had already been reset for trial twice. On
the day of trial, the visiting judge held a second Faretta hearing, at which appellant
against asked for a standby attorney, which the visiting judge again denied, noting
on the record that “you may think that by doing this you are going to forestall the
disposition of this case. It won’t work that way.” The trial court then asked, “Do
you want to represent yourself? And this is the last time that I am going to ask
you,” to which appellant responded, “I really do.” At this point appellant had been
representing himself pro se for two weeks already, and he had picked his own jury,
which had already been sworn. It was not until appellant realized that he had
waived his right to have the jury assess punishment that he sought to revoke his
waiver of counsel. And, even if we assume that appellant’s previously-appointed
counsel was present in the courtroom, unlike the attorney in Morgan, she was
never appointed as standby counsel, she never announced ready, appellant never
requested that she be reappointed as his attorney, and nothing in the record
suggests that she was ready to proceed with trial that day.
Under these circumstances, we hold that appellant has failed to bring forth a
sufficient record to sustain his burden to show an abuse of discretion by the trial
court. Accordingly, we overrule point of error one.
State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). 12 FAILURE TO HEAR PRO SE MOTIONS
While appellant had counsel, the trial judge did not rule on appellant’s pro se
motions [those listed in his Writ of Mandamus] because appellant was not entitled
to hybrid representation. After the trial court granted appellant’s motion to
proceed pro se at the first Faretta hearing, appellant inquired, “Do you want to
have that hearing on the writ?” To which, the trial court responded, “Like I said,
you have to follow Rules of Procedure. You’re on your own son.” Appellant
made no further response.
On appeal, appellant argues that “[t]he district judge, [at the first Faretta
hearing], erred in failing to hear Mr. Hick’s motions because he granted the first
two and thereby left Mr. Hicks without counsel when he urged the remainder”
which “resulted in the court’s failure to give Mr. Hicks an opportunity to make a
threshold showing of his need for an investigator, in violation of his due process
rights . . . .”
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds for
the desired ruling if they are not apparent from the context of the request,
objection, or motion. TEX. R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249,
265 (Tex. Crim. App. 1998) (op. on reh’g). Further, the trial court must have ruled
on the request, objection, or motion, either expressly or implicitly, or the
13 complaining party must have objected to the trial court’s refusal to rule. TEX. R.
APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
Appellant did not object to the trial court’s refusal to rule on any of his motions at
the first Faretta hearing; thus, he may not now complain on appeal that the trial
court’s refusal to rule.
Accordingly, we overrule appellant’s second issue.
COURT COSTS
In his third point of error, appellant contends there “is insufficient evidence
to support the court costs reflected in the judgment.” The record in this case
includes a judgment, to which is appended “Attachment A.” Attachment A is
entitled “ORDER TO WITHDRAW FUNDS FOR FINE/FEES/COURT COSTS”
and includes a three page computer printout of the fees assessed in this case. At
the bottom of page 1 of the printout, there is the signature of “Christine Baldwin,”
which is dated “11/7/12.” On page 3 of the printout, there is a certification by
Chris Daniel, District Clerk of Harris County, Texas, that the document “is a true
and correct copy of the original record filed and or recorded” in his office, which is
signed by “CBaldwin Deputy” and is also dated “11/7/12.” Appellant does not
challenge the amount of costs assessed, but contends that the evidence is
insufficient, arguing that “while we learn from the certification of the third page of
the document that Christine Baldwin is a Deputy Clerk with the Harris County
14 District Clerk’s office, her signature on the first page gives no indication as to
whether she is the officer who charged or was entitled to receive the costs.”
In Cardenas v. State, 403 S.W.3d 377, 385 n.6 (Tex. App.—Houston [1st
Dist.] 2013, pet. granted) (designated for publication) this Court found a certified
copy of a cost bill signed by a deputy clerk to be sufficient evidence to support an
award of costs. Like the certified copy of the bill of costs in Cardenas, which was
signed by a deputy clerk on behalf of the clerk of the district court, the bill of costs
in this case is sufficient.
Regarding appellant’s assertion that the assessment of costs is insufficient
because Baldwin signed and certified the bill of costs after the judgment was
signed, this Court considered and rejected that argument in Cardenas. Id.; see also
Garcia v. State, No. 01-11-00985-CR, 2013 WL 1368082, at *1–4 (Tex. App.—
Houston [1st Dist.] April 4, 2013, no pet.) (rejecting claim that cost bill must be
created before rendition of judgment).
Accordingly, we overrule point of error three.
15 CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).