                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 BOBBY CORTEZ,                                                 No. 08-11-00306-CR
                                                §
                       Appellant,                                   Appeal from
                                                §
 v.                                                             297th District Court
                                                §
 THE STATE OF TEXAS,                                         of Tarrant County, Texas
                                                §
                       Appellee.                                 (TC # 1214569D)
                                                §

                                         OPINION

       Bobby Cortez appeals from his conviction for Indecency with a Child - Exposure. The

jury found Appellant guilty and assessed punishment at life imprisonment. On appeal, Appellant

challenges the trial court’s decision allowing him to proceed pro se. Finding no error, we affirm.

                                    FACTUAL SUMMARY

       Stephanie Martinez was pregnant and expecting twins in the Spring of 2010. Her friends

hosted a baby shower in the back party room at Billy Miners, a club and restaurant formerly

located in downtown Fort Worth. Martinez’s young children, as well as many other children

belonging to her friends and family, attended the shower.

       During the party, Martinez and her guests noticed a man, later identified as Appellant,

seated at a table in a nearby courtyard. Appellant was watching his laptop in between glancing at

Martinez and the other guests. Toward the end of the party, Appellant stood up and, while facing
the glass windows that separated the party room from the courtyard, began masturbating.

Several of the children were within visual range. A restaurant employee called the police and the

officers arrested Appellant, searched his computer, and discovered pornography. Appellant had

several other prior offenses, including aggravated assault with a deadly weapon in 2007 and

aggravated assault with a deadly weapon in 1997.

           Appellant filed several pro se motions. In May 2011, David Bays, Appellant’s court-

appointed attorney, filed motions for competency and sanity examinations which the trial court

granted. Dr. Satyajeet Lahiri’s conducted a competency evaluation, finding that Appellant (1)

had the ability to discuss the various legal options available to him, (2) was capable of

understanding legal strategies presented to him, and (3) could correctly identify his attorney

along with his offense and relevant punishment.

           The doctor categorized Appellant’s mental illness as a form of paranoid psychoses,

auditory hallucinations, and mood instability on Axis I and anti-social personality disorder on

Axis II. He concluded that these disturbances did not affect Appellant’s competency to stand

trial. Dr. Lahiri further noted that Appellant had maintained a fair degree of clinical stability and

had logical thought processes and exhibited goal directed behavior. Dr. Kelly Goodness also

evaluated Appellant and declared him competent, making similar findings to those of Dr. Lahiri,

including the ability to rationalize and understand the charges made against him together with an

adequate capacity to discuss the pertinent proceedings at issue, despite his history of mental

illness.

           Dr. Lahiri also conducted a sanity evaluation. He concluded that Appellant did not meet

the criteria for an insanity defense and was sane at the time of the alleged offense. Expressing

his concern over the possibility that Appellant was malingering, Dr. Lahiri concluded that it was



                                                -2-
likely Appellant fabricated or exaggerated his symptoms at the time of his offense. Due to his

long association with the mental health system, Appellant was very familiar with the signs and

symptoms of his specific illnesses. Although Appellant had a long history of mental illness, Dr.

Lahiri determined that these illnesses were not of sufficient degree or severity, nor did he have

the mental defect of the type and degree that rendered him unable to know the difference

between right and wrong on or about the time of the alleged offense.

        On June 1, 2011, the trial court heard proceedings regarding representation of Appellant,

as requested by attorney Bays. These matters included Appellant’s competency to stand trial.

When the court inquired about Appellant’s competency to stand trial, Appellant expressed the

opinion that all of his attorneys in the past “never did nothing,” and stated, “I want to represent

myself. I’m tired of lawyers.” The court initially concluded that Appellant was not able to waive

his right to an attorney and kept Bays as Appellant’s court-appointed lawyer.

       On July 28, 2011, the trial court held another pretrial hearing regarding Appellant’s

request to proceed pro se. At the hearing, the trial court properly and thoroughly admonished

Appellant, and inquired into the general nature of Appellant’s offense along with its sentence;

the advantages and disadvantages of self-representation; Appellant’s age, background, education

and experiences; the need to follow rules of evidence and criminal procedure; and the dangers

and consequences of self-representation. The trial judge also discussed the habitual offender

notice relevant to Appellant’s sentence. Essentially, the trial judge explained that Appellant had

prior convictions that categorized him as a habitual offender, and therefore, should the jury find

that Appellant committed those prior offenses, Appellant’s punishment range would be increased

to a minimum of twenty-five years up to and including ninety-nine years, or life. The trial judge




                                               -3-
then appointed attorney Bays as Appellant’s standby counsel who would remain present while

Appellant represented himself throughout trial.

       Another hearing on self-representation was held a few days later on August 1, 2011. The

purpose of this hearing was to clarify some of the pro se motions filed by Appellant. These

motions addressed Appellant’s intent to present evidence of insanity, to raise the matter of

competency to stand trial, and to request a subpoena of Dr. Satyajeet Lahiri. Appellant changed

his mind again and indicated to the court that he wanted to be represented by an attorney.       He

then expressed his desire for a lawyer to “go hybrid” with him. Attorney Bays advised the court

that he had previously instructed Appellant that hybrid representation is not permitted in Texas

courts. Following a recess, Bays told the court that since the State had not made a plea offer

acceptable to Appellant, it was possible that Appellant was under the impression that

complaining about his appointed counsel would get him a new lawyer who would then negotiate

a more attractive plea bargain. The prosecutor confirmed that the plea offer was not dependent

upon counsel, but upon Appellant’s specific offense and his criminal history, all which

established a legitimate basis for the offer at hand. After a discussion on these matters, the trial

judge ruled that Appellant needed attorney Bays to remain as counsel. In addition, the trial

court, the prosecution and the defense all agreed that Appellant should undergo another

competency and sanity evaluation prior to proceeding to trial.

       A few weeks later, on August 23, 2011, the trial court held yet another hearing regarding

Appellant’s desire to represent himself. Apparently Appellant changed his mind again and

informed the court that he no longer wanted Bays to represent him. The court began to admonish

Appellant again of the advantages and disadvantages of self-representation.          Following the

admonishment, Appellant wavered and then settled on allowing Bays continuing to represent.



                                               -4-
Bays remained as Appellant’s counsel and the trial judge proceeded to arraignment and the

presentation of an insanity defense.

       That same afternoon, voir dire began. After the State concluded its voir dire, the court

took a short break. Upon everyone’s return, Appellant expressed his intent to represent himself.

The court began to admonish Appellant for the third time of the dangers and consequences of

self-representation and further indicated that if Appellant made any other attempts to disrupt or

manipulate the proceedings, it would be considered unacceptable and viewed as an attempt at

delay. Appellant then signed his second written waiver of counsel and the trial judge finished his

admonishment. The trial judge ruled that attorney Bays would remain in the courtroom and

continue to act as Appellant’s standby counsel for the remainder of trial.        Voir dire then

continued.

       When it was Appellant’s turn to conduct his voir dire, he told the trial judge he wished to

waive his voir dire and had no questions to present to the jury. The official jury panel was then

sworn, seated, and given instructions regarding their duties as jurors. The indictment was read to

the jury and, after some confusion as to what Appellant was pleading, the trial judge concluded

Appellant had entered a plea of not guilty.

       During Dr. Lahiri’s testimony, the State questioned him about a mentally ill person

knowing the difference between right and wrong and its effect on declaring a person legally

insane. Dr. Lahiri’s responded that although a person may be psychotic or mentally ill, he will be

deemed legally sane if he knows the difference between right and wrong with regard to the crime

committed. Dr. Lahiri also testified that during the sanity evaluation, he inquired into whether

Appellant would have committed the same offense had a police officer been present. Appellant




                                              -5-
answered that he would not have engaged in the same behavior. According to Dr. Lahiri, this

was indicative of knowing the difference between right and wrong.

                        VALID WAIVER OF RIGHT TO COUNSEL

                                     Statement of the Issues

       In Issue One, Appellant complains that the trial court erred in allowing self-

representation in violation of the 6th and 14th Amendments to the United States Constitution. In

Issue Two, he contends that the court also violated Article I, Section 10 of the Texas

Constitution.

                            Applicable Law and Standard of Review

       Both the Sixth Amendment of the U.S. Constitution and Article I, Section 10 of the Texas

Constitution provide that a defendant in a criminal trial has the right to assistance of counsel.

Geeslin v. State, 600 S.W.2d 309, 313 (Tex.Crim.App. 1980). However, coupled with the right

to counsel is the right to waive counsel and to represent one’s self. See Indiana v. Edwards, 554

U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), citing Faretta v. California, 422 U.S. 806,

819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). “Although the right to self-representation is

absolute, a waiver of the right to counsel will not be lightly inferred, and the courts will indulge

every reasonable presumption against the validity of such a waiver.” Manley v. State, 23 S.W.3d

172, 173 (Tex.App.--Waco 2000, pet. ref’d)(internal quotations omitted); see Johnson v. Zerbst,

304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and Jordan v. State, 571 S.W.2d

883, 884 (Tex.Crim.App. 1978).

       For a defendant to effectively waive the right to counsel and represent himself: (1) the

waiver should be made “knowingly and intelligently”; and (2) the defendant should be warned of

the “dangers and disadvantages” accompanying such waiver. See Faretta, 422 U.S. at 835-36,



                                               -6-
95 S.Ct. at 2541. The Texas Court of Criminal Appeals has repeatedly stressed the same

requirements. Goodman v. State, 591 S.W.2d 498 (Tex.Crim.App. 1979); Renfro v. State, 586

S.W.2d 496 (Tex.Crim.App. 1979).

       Generally speaking, “the standard for waiving the right to counsel is no higher than for

competency to stand trial . . . .” Chadwick v. State, 309 S.W.3d 558, 560 (Tex.Crim.App. 2010);

see also Edwards, 554 U.S. at 172, 128 S.Ct. at 2379, quoting Godinez v. Moran, 509 U.S. 389,

399, 113 S.Ct. 2680, 125 L.Ed.2d. 321 (1993)(“the competence that is required of a defendant

seeking to waive his right to counsel is the competence to waive the right, not the competence to

represent himself”)[Emphasis in original]. However, in Edwards, the United States Supreme

Court “caution[ed] against the use of a single mental competency standard for deciding both (1)

whether a defendant who is represented by counsel can proceed to trial and (2) whether a

defendant who goes to trial must be permitted to represent himself.” Edwards, 554 U.S. at 175,

128 S.Ct. at 2379. The court also recognized a “mental-illness related limitation on the scope of

the self-representation right.” Id. The Constitution permits states to insist upon representation

by counsel for those competent enough to stand trial, but who still suffer from severe mental

illness to the point where they are not competent to conduct trial proceedings by themselves.

Chadwick, 309 S.W.3d at 560-61; Edwards, 554 U.S. at 174, 128 S.Ct. at 2385. The “mental-

illness-related limitation on the scope of the self-representation right” articulated in Edwards was

recognized by the Texas Court of Criminal Appeals in Chadwick, 309 S.W.3d at 560-61.

       The trial judge is in the best position to decide whether a mentally ill defendant is

competent to proceed pro se. Chadwick, 309 S.W.3d at 561; Edwards, 554 U.S. at 177, 128

S.Ct. at 2385. Because the issue on appeal is a mixed question of law and fact which turns on an

evaluation of credibility and demeanor, we review the trial court’s ruling for an abuse of



                                               -7-
discretion. Chadwick, 309 S.W.3d at 561. We must view the evidence in the light most

favorable to the trial judge’s ruling, implying any findings of fact supported by the evidence and

necessary to support the trial judge’s ruling when the judge failed to make explicit findings. Id.

       If the record indicates a clear expression of the defendant’s desire to proceed pro se,

accompanied by careful and thorough admonishments from the trial court, the reviewing court

should conclude that sufficient evidence exists to support allowing for waiver of counsel. See

Barras v. State, 902 S.W.2d 178, 180-81 (Tex.App.--El Paso 1995, pet. ref’d); Ford v. State, 870

S.W.2d 155, 158 (Tex.App.--San Antonio 1993, pet. ref’d); Hobbs v. State, 778 S.W.2d 185,

186-87 (Tex.App.--Beaumont 1985, no pet.); Logan v. State, 690 S.W.2d 311, 313-14

(Tex.App.--Dallas 1985, pet. ref’d). Although there has been no exact line of questioning set out

to establish a knowing and intelligent waiver of the right to counsel, the trial court should at least

inquire into the accused’s age, background, education and experiences, in addition to making the

accused aware of the advantages and disadvantages of self-representation. Calcarone v. State,

675 S.W.2d 785, 786 (Tex.App.--Houston [14th Dist.] 1984, no pet.). Moreover, the court

should make the accused aware of the general nature of the offense charged, aware that the

accused must comply with the rules of evidence and criminal procedure, and aware that the

accused will receive no special consideration by the court. Id. All of these admonishments

should be sufficiently reflected within the record to enable the appellate court to make an

accurate assessment of the decision of the accused. Johnson v. State, 760 S.W.2d 277, 279

(Tex.Crim.App. 1988).

       Finally, the decision to waive the right to counsel does not require an appreciably higher

level of mental functioning than is required to execute a valid waiver of other constitutional

rights. Edwards, 554 U.S. at 172, 128 S.Ct. at 2384. “[T]he competence that is required of a



                                                -8-
defendant seeking to waive his right to counsel is the competence to waive the right, not the

competence to represent himself.” Id., citing Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct.

2680, 125 L.Ed.2d 321 (1993)[Emphasis in original].

                                             Analysis

        The trial court interacted with Appellant on several occasions and thoroughly discussed

Appellant’s repeated decision to proceed pro se, providing the trial court with abundant

information with which to determine Appellant’s competency to represent himself. The trial

court ordered competency evaluations for Appellant by two different doctors and both deemed

Appellant competent to stand trial as well as sane at the time of the offense. The doctors’

findings therefore support the trial court’s ruling that Appellant was competent to represent

himself at trial.

        We recognize that Appellant does have a history of mental illness. Standing alone, this is

insufficient to establish that the trial court abused its discretion by allowing Appellant to

represent himself. Compare Chadwick, 309 S.W.3d at 562-63 (affirming the trial court’s denial

of appellant’s right to self-representation when appellant put curses on the trial court, interrupted

his attorney, launched into rambling monologues and personal attacks, and filed incoherent

motions), with Cudjo v. State, 345 S.W.3d 177, 186 (Tex.App.--Houston [14th Dist.] 2011, pet

ref’d)(affirming determination of competence to waive counsel when, despite evidence appellant

suffered from bipolar disorder and was housed in a prison mental health unit, record showed his

ability to communicate clearly, conduct himself appropriately and respectfully, proceed in an

orderly fashion with trial court’s guidance, ask coherent questions, lodge objections, and

articulate defenses to the allegations).




                                                -9-
         The trial court’s repeated admonishments to Appellant likewise support the ruling.

Appellant had established a pattern of switching back and forth between court-appointed counsel

and self-representation. He changed his mind on at least three different occasions throughout

trial. Each time, the trial court admonished him. Finally, there is evidence reflecting that the

court provided Appellant with standby counsel throughout the trial. Appellant was never alone

in the courtroom, and attorney Bays was readily available to assist Appellant in any procedural

difficulties he may have had.

         Because we must give almost total deference to the trial court’s rulings on mixed

questions of law and fact when the resolution of the issue turns on an evaluation of credibility

and demeanor, and because the trial judge was in the best position to determine whether or not

Appellant was competent to represent himself at trial, we conclude there was no abuse of

discretion. We overrule Issues One and Two and affirm the trial court’s judgment.



April 10, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)



                                    DISSENTING OPINION

         I disagree with the conclusions reached in the majority opinion, so respectfully dissent.

The evidence is insufficient to support a knowing waiver of Appellant’s right to counsel, under

the United States Constitution and the Texas Constitution. Therefore, it follows the trial court

abused its discretion in allowing Cortez to proceed pro se. I would reverse and remand for a new

trial.

                                               - 10 -
                                   PROCEDURAL BACKGROUND

        Pertinent to our discussion is the procedural background and Appellant’s psychiatric

history. In the weeks leading up to trial, Appellant asserted an insanity defense, underwent two

psychological examination and several competency hearings, and repeatedly requested to

represent himself. At a competency hearing on June 1, 2011, Appellant made his first request to

represent himself. Prior to this hearing, Dr. Satyajeet Lahiri filed two reports on Appellant’s

competency to stand trial and his requested insanity defense. In the sanity report, Dr. Lahiri

noted that Appellant had a psychiatric history dating back to age 15 and reported he was

suffering from auditory and visual hallucinations and persecutory delusions.                         Dr. Lahiri

diagnosed Appellant with the depressive subtype of schizoaffective disorder,1 antisocial

personality disorder, a history of poly-substance abuse, paranoid psychoses, and “problems with

social environment and legal system.” However, he ultimately determined that Appellant had

been sane at the time of the offense and expressed concerns that Appellant was malingering. In

1
  Schizoaffective disorder is combined mood and psychotic disorder defined in the Diagnostic and Statistical
Manual by the following criteria:

        A. An uninterrupted period of illness during which there is a Major Mood Episode
        (Major Depressive or Manic) concurrent with Criterion A of Schizophrenia. Note: The
        Major Depressive Episode must include Criterion A1.

        B. Depressed mood. Delusions or hallucinations for 2 or more weeks in the absence of a
        Major Mood Episode (Depressive or Manic) during the lifetime duration of the illness.

        C. Symptoms that meet criteria for a Major Mood Episode are present for the majority of
        the total duration of the active and residual portions of the illness.

        D. The disturbance is not attributable to the effects of a substance or another medical
        condition.

American Psychiatric Association, Diagnostic and Statistical Manual (5th ed. 2013). During the pendency of this
appeal, the revised fourth edition of the Diagnostic and Statistical Manual (“DSM-IV-TR”) was superseded by the
fifth edition (“DSM-5”) in 2013, and that Dr. Lahiri properly relied on the DSM-IV-TR to assess Appellant’s mental
state. However, “[t]he primary change to schizoaffective disorder [in the fifth edition] is the requirement that a
major mood episode be present for a majority of the disorder’s total duration after Criterion A has been met.” See
American Psychiatric Association, Highlights of Changes from DSM-IV-TR to DSM-5 3 (2013) available online at
http://www.dsm5.org/Documents/changes%20from%20dsm-iv-tr%20to%20dsm-5.pdf. As such, with that caveat,
the cite to the definition of schizoaffective disorder is from the most recent edition of the DSM.

                                                     - 11 -
the competency report, Dr. Lahiri rated Appellant’s insight and judgment as poor, but found that

Appellant was competent to stand trial based on the following: 1) that his psychiatric

medications partially suppressed his auditory and persecutory-delusional symptoms; 2)

Appellant was able to understand some legal strategies; 3) he understood the nature of the

offense, and 4) he could communicate with counsel. Dr. Lahiri did not assess whether Appellant

was competent to conduct his own defense.

        At the first competency and sanity hearing, the trial court inquired whether Appellant felt

competent to participate in the trial. Appellant responded, “No, sir. I ain’t got my head screwed

on right” and “I don’t think I’m focused in my brain right now.” He also admitted to hearing

voices, but insisted on representing himself because he did not trust his appointed counsel on the

basis that his past lawyers “never did nothing” and “[a]ll they wanted was a conviction out of

me.” He further stated, “I can be the lawyer and the next President too. . . . Obama ain’t doing

too good.” The trial court denied Appellant’s first request to self-represent.

        At a second hearing on July 28, 2011 during a hearing on a motion to quash, Appellant

made yet another request to represent himself to a different judge from the first competency

hearing. This judge issued a series of warnings about the dangers of self-representation and

asked questions about Appellant’s background, eliciting that Appellant was 35 years old, literate,

had completed a G.E.D., and claimed to have a 106 I.Q.2 The judge also asked if Appellant felt

his mental illness would interfere with trial. Appellant responded that he felt comfortable, but

that he might also have a “schizo affected, you know, outbursts” that he would try to control it as

best as he could. The trial judge then granted Appellant a waiver of his Sixth Amendment right

to counsel and allowed him to defend himself, with his appointed counsel serving only as


2
  Dr. Kelly Goodness, in her competency report, assessed Appellant’s “intellectual functioning [as] likely in the
borderline IQ range.

                                                     - 12 -
standby counsel.

        On August 1, 2011, the visiting judge held another hearing in which Appellant’s

competency to stand trial and represent himself was reviewed. Appellant admitted that he did

not even know whether he needed to be represented by counsel and stated “right now I don’t

think I’m competent to defend myself. I need a lawyer, you know. But this one right here I

can’t do it with him.” Appellant’s standby counsel stated that Appellant was dissatisfied with the

State’s plea offer and wanted another attorney on that basis. The trial court then ordered that

Appellant be represented by counsel.        It also ordered another competency examination

performed by Dr. Kelly Goodness.

        In her report, Dr. Goodness found that Appellant was not malingering and was competent

to stand trial, but she also noted that Appellant had attempted suicide numerous times before,

appeared to have a “borderline IQ” intellectual capacity, and exhibited poor judgment generally

and that “[h]is judgment for legal matters is minimally adequate.” Dr. Goodness did not assess

whether Appellant was competent to represent himself at trial, only whether he was able to

communicate effectively with counsel. She noted that “[n]o delusions were detected,” but that

“[h]e reported having past visual hallucinations regarding bite marks from vampires on others’

necks, Batman chasing him and aliens.” “Most recently, he reported seeing some sort of ‘spirit’

rise up between people who were talking and twist like a tornado above their heads. He stated

this occurred yesterday, but was not distressing to him to a degree that he spoke out. He reported

he simply put the cover over his head.” He also reported auditory hallucinations, such as the

sound of people calling out his name, but that he appeared to generally understand his legal

situation.   Dr. Goodman stated that Appellant was “not consistently compliant with his

treatment” and that “maintaining competence will require medication compliance.            If his



                                              - 13 -
medications are completely discontinued, he may become psychotic, irrational and/or

overwhelmed by emotion and, thus, he may become incompetent to stand trial.”

       On August 23, 2011, the day of trial, Appellant made another request to represent himself

shortly before the beginning of voir dire. The trial judge from the first competency hearing held

another hearing to rule on Appellant’s decision to self-represent. At the hearing, Appellant

requested new counsel and offered to represent himself if not provided with new counsel. After

the trial court issued a new set of Faretta warnings, Appellant vacillated on self-representation

but then decided to ultimately “let him do it then” and elected to proceed with the assistance of

counsel. Later, at the close of the State’s voir dire examination, Appellant changed his mind

again asserted his right to self-representation for the fourth and final time. The judge and

Appellant engaged in the following colloquy:

       THE COURT:            And I’m not going to delay the trial so you can, as
                             Judge Walker put it a few weeks ago, go to law
                             school. So you can choose to represent yourself,
                             but you are going to be familiar with the Code of
                             Criminal Procedure and the Rules of Evidence, and
                             you are going to have to follow those rules. So
                             knowing that, do you still want to represent
                             yourself?

       THE DEFENDANT: Did he [counsel] say he didn’t want to represent me
                      or what?

       THE COURT:            No, no, he says that you wanted to represent
                             yourself. So is that true or not true?

       THE DEFENDANT: I thought about it, but he says he will still do it.

       THE COURT:            He will still do it because --

       THE DEFENDANT: Okay, I’ll take over. Give me my pen. I will write
                      this down. . . .

       The court then allowed Appellant to proceed pro se, with Appellant saying, “I figure I



                                               - 14 -
will take it on from here.” The jury found Appellant guilty of the single count of indecency with

a child and assessed his punishment at life in prison based on two prior felony enhancements.

                                         DISCUSSION

       In Issue One, Appellant argues that the trial court violated his rights under the Sixth and

Fourteenth Amendments to the United States Constitution by allowing him to represent himself

in spite of an apparent lack of mental competency. In Issue Two, Appellant contends that the

trial court also violated his rights under TEX.CONST. art. 1, § 10, by allowing him to represent

himself at trial based on the same reasons. The Sixth Amendment right to counsel has been

selectively incorporated against the states by the Fourteenth Amendment. Gideon v. Wainwright,

372 U.S. 335, 342-43, 83 S.Ct. 792, 795 (1963)(right to counsel implicit in the concept of

ordered liberty). Thus, Issue One presents only a single constitutional issue brought under the

aegis of linked provisions.    Likewise, the challenge under the Texas Constitution presents

essentially the same right to counsel claim he brings in Issue One. Geeslin v. State, 600 S.W.2d

309, 313 (Tex.Crim.App. 1980). I will discuss both issues in the following single constitutional

analysis.

                      Constitutional Framework and Standards of Review

       The Sixth Amendment to the United States Constitution and Article 1, Section 10 of the

Texas Constitution both establish a defendant’s right to counsel in a criminal trial. Geeslin, 600

S.W.2d at 313. Part and parcel with this protection is the constitutional right to have counsel

appointed by the court if a defendant cannot afford private counsel. Gideon, 372 U.S. at 342-43.

The United States Supreme Court has also recognized that the right to counsel encompasses the

right to represent oneself at trial by negative implication. Faretta v. California, 422 U.S. 806,

834 95 S.Ct. 2525, 2540-41 (1975). The right to self-representation is absolute, save for a



                                              - 15 -
threshold competency inquiry to determine whether special circumstances demonstrate the

existence of a “mental-illness related limitation on the scope of the self-representation right.”

Indiana v. Edwards, 554 U.S. 164, 174 128 S.Ct. 2379, 2385-86 (2008). Although the waiver of

the right to counsel and the assertion of the Faretta right to self-representation occur nearly

simultaneously and are often subsumed into one seamless legal analysis, I separate them here

into a three-step process in order to articulate the mechanics of a self-representation request and

clarify the relevant standards of review at different stages.

        As the condition precedent for the assertion of his self-representation right, the defendant

must first waive his Sixth Amendment right to counsel. Funderburg v. State, 717 S.W.2d 637,

642 (Tex.Crim.App. 1986). Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022-23

(1938). His waiver is constitutionally sound only if he is (1) mentally competent to make the

waiver, and only if (2) he waives the right knowingly, voluntarily, and intelligently after

receiving proper warnings. Moore v. State, 999 S.W.2d 385, 396 (Tex.Crim.App. 1999). At this

first step of the process, appellate review is bifurcated. Competency to waive the right to

counsel, which is essentially a restatement of the defendant’s competence to stand trial, is a

mixed question of fact and law reviewed for abuse of discretion. Chadwick v. State, 309 S.W.3d

558, 561 (Tex.Crim.App. 2010).              Once the threshold competence to waive the right is

established, the State then carries the “heavy burden” of showing that a defendant knowingly,

voluntarily, and intelligently waived the right to counsel, with this Court indulging “every

reasonable presumption against the validity of such a waiver.” Geeslin, 600 S.W.2d at 313;

Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023.3

        Upon validly waiving his right to counsel, a defendant must then “clearly and

3
  The burden runs with the State only on direct appeal. On habeas review, the defendant must show that his waiver
was invalid by a preponderance of the evidence. Barras v. State, 902 S.W.2d 178, 180-81 (Tex.App.--El Paso 1995,
pet. ref’d).

                                                     - 16 -
unequivocally” assert his Faretta right to self-representation at the second step of the process.

Hathorn v. State, 848 S.W.2d 101, 123 (Tex.Crim.App. 1992). “We review the factual issue of

whether a defendant has clearly and unequivocally invoked the right to self-representation for

abuse of discretion.” Brown v. State, 2013 WL 1281917, at *3 (Tex.App.--El Paso 2013, pet.

ref’d)(not designated for publication); DeGroot v. State, 24 S.W.3d 456, 457-58 (Tex.App.--

Corpus Christi 2000, no pet.). If he does not clearly or unequivocally assert his Faretta right, or

if by subsequent conduct he shows intent to abandon self-representation, the defendant may be

presumed to have waived his Faretta right. See Funderburg, 717 S.W.2d at 642 (noting that this

situation constitutes a “waiver of a waiver insofar as the defendant waives his right to waive

appointed counsel”).

       Where a defendant fails to properly assert his Faretta right, or where his right to self-

representation dissolves, the trial court must appoint counsel over his protest or else be subject to

automatic reversal for structural error for denying him his fundamental right to counsel. Burgess

v. State, 816 S.W.2d 424, 429 (Tex.Crim.App. 1991); Fernandez v. State, 283 S.W.3d 25, 31

(Tex.App.--San Antonio 2009, no pet.)(self-representation absent proper waiver and affirmative

Faretta assertion constitutes denial of right to counsel); United States v. Cronic, 466 U.S. 648,

659, 104 S.Ct. 2039, 2047 (1984) (lack of counsel where requires constitutes structural error).

Likewise, if a defendant who proceeded to trial pro se did not first knowingly, voluntarily, and

intelligently waive his right to counsel, the trial court will be reversed for structural error.

Fernandez, 283 S.W.3d at 31.

       Finally, where a criminal defendant has validly waived his right to counsel and properly

asserted his Faretta right, the trial court has the discretion and the independent duty to examine

the defendant’s mental competence to self-represent and determine whether special



                                               - 17 -
circumstances indicate the presence of a “mental-illness related limitation on the scope of the

self-representation right.” Edwards, 554 U.S. at 174, 128 S.Ct. at 2385-86. A trial court’s

determination that a defendant is mentally incompetent to conduct his own defense under

Edwards is reviewed for abuse of discretion. Chadwick; 309 S.W.3d at 561.4 Since the question

of mental competency to self-represent presents a mixed question of fact and law that turns on

the defendant’s credibility and demeanor, the appellate court must accord the trial court “almost

total deference.” Riley v. State, 378 S.W.3d 453, 458 (Tex.Crim.App. 2012).

         Against this backdrop, the validity of Appellant’s waiver of the right to appointed counsel

is reviewed, the sufficiency of Faretta right assertion, and whether the trial court abused its

discretion by impliedly ruling that Appellant was competent to represent himself.

                                     Waiver of Faretta right by conduct

         As a threshold matter, in this case, Appellant vacillated on the issue of self-

representation, and switched back and forth between representing himself and being represented

by counsel. As such, turning to whether Appellant’s final request to represent himself met the

constitutional requirements to waive counsel, the appellate court must first determine whether he

in fact waived the Faretta right to represent himself. If a determination that Appellant validly

waived his right to self-representation, then there is no need to decide whether he properly

asserted that right.

         Where a defendant has clearly and unequivocally asserted his Faretta right to self-

representation, he may later waive his Faretta rights by conduct. Funderburg , 717 S.W.2d at

4
  The State cites Chadwick for the proposition that the trial court’s decision as a whole should be reviewed for abuse
of discretion. However, I read Chadwick as applying an abuse of discretion standard of review only to the issue of
the defendant’s competence to waive his right to counsel (which is only one facet of a valid waiver) at the front end
of the analysis, and competence to self-represent at the back end of the analysis. In assessing waiver, once a
threshold showing of competence to waive the right has been established, the record must show that the defendant
made the waiver knowingly, voluntarily, and intelligently, which is a constitutional issue reviewed for harmless
error under TEX.R.APP.P 44.2. It seems anomalous that the defendant’s right to appointed counsel, a fundamental
right guaranteed by the Sixth Amendment, is committed to the discretion of the trial court.

                                                       - 18 -
642; see also McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S.Ct. 944, 953 (1984)(“A defendant

can waive his Faretta rights.”). “This represents in part the waiver of a waiver insofar as the

defendant waives his right to waive appointed counsel.” Funderburg, 717 S.W.2d at 642 n.5

(citing Chapman v. United States, 553 F.2d 886, 893 n.12 (5th Cir. 1977)). “A waiver [of

Faretta rights] may be found if it reasonably appears to the court that defendant has abandoned

his initial request to represent himself.” Id. (citing Brown v. Wainwright, 665 F.2d 607, 611

(Former 5th Cir. 1982)). For example, where a defendant has properly asserted his Faretta

rights, “the defendant’s subsequent conduct indicating he is vacillating on the issue or has

abandoned his request altogether” is sufficient to trigger waiver of the Faretta right. Brown, 665

F.2d at 611 (citing Chapman, 553 F.2d at 893 n.12; United States v. Bennett, 539 F.2d 45, 51

(10th Cir. 1976), cert. denied, 429 U.S. 925, 97 S.Ct. 327 (1976)); Carroll v. State, 176 S.W.3d

249, 254 (Tex.App.--Houston [1st Dist.] 2004)(“A defendant who initially asserts his right to

appear pro se, but later abandons the right by inviting participation by counsel, waives his right

to represent himself.”).

       If the defendant does waive his Faretta right, the trial court ultimately has the discretion

to decide whether to allow the defendant to withdraw or reassert self-representation, provided

that he does not “repeatedly alternate his position on the right to counsel and thereby delay

trial or otherwise obstruct the orderly administration of justice.” Medley v. State, 47 S.W.3d 17,

23 (Tex.App.--Amarillo 2000, pet. ref’d); Blankenship v. State, 673 S.W.2d 578, 585

(Tex.Crim.App. 1984)(the Faretta right is timely asserted at any point before impaneling of the

jury); but see Webb v. State, 533 S.W.2d 780, 784 (Tex.Crim.App. 1976)(“[A]n accused may not

wait until the day of trial to demand different counsel or to request that counsel be dismissed so

that he may retain other counsel.”).



                                              - 19 -
         Here, Appellant vacillated on the issue of self-representation at least three times,

including immediately prior to the impaneling of the jury. Although this case may be a close

call, here, because the request for self-representation was made before the jury was sworn, the

trial judge had the discretion to entertain the request pursuant to his power to ensure the orderly

administration of justice. The record does not indicate any procedurally objectionable issue to

show that the trial court abused its discretion by entertaining the motion to invalidate waiver of

the Faretta right and defer to the trial court’s decision in managing its own docket. As such, the

trial court’s implied ruling should be upheld that Appellant did not waive his Faretta right by

conduct.

         Once it is found the trial court did not abuse its discretion in allowing Appellant to assert

his right to self-representation shortly before the jury was impaneled, the next step leads to a

three pronged analysis. The appellate court must then turn to the issues of whether Appellant

was competent to waive the right to counsel; whether he actually did so knowingly, voluntarily,

and intelligently; and whether he affirmatively re-asserted his Faretta right.

                                 Competence to waive the right to counsel

         In order to be able to waive the right to counsel, a defendant must first possess the mental

competency necessary to waive. Moore, 999 S.W.2d at 396. Competency to waive the right to

self-representation and competency to conduct one’s own defense present two separate

questions. Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687 (1993)(“[A] criminal

defendant’s ability to represent himself has no bearing upon his competence to choose self-

representation[.]”)5 Competence to waive the right to counsel is a legal redundancy. “[T]he


5
   “The focus of a competency inquiry [at the waiver stage] is the defendant’s mental capacity; the question is
whether he has the ability to understand the proceedings. [. . .] The purpose of the ‘knowing and voluntary’ inquiry,
by contrast, is to determine whether the defendant actually does understand the significance and consequences of a
particular decision and whether the decision is uncoerced.” Godinez, 509 U.S. at 401, 113 S.Ct. at 2687 (internal

                                                       - 20 -
standard for waiving the right to counsel is no higher than that of competency to stand trial.”

Chadwick, 309 S.W.3d at 560. In essence, if a defendant is competent enough to stand trial, i.e.

if he has the ability to understand the nature of the proceedings and charges against him, he is

also competent enough to waive the right to counsel and assert his Faretta right to the extent his

is not prevented from doing so by mental illness. Id.                        This Court reviews competence

determinations for abuse of discretion. Id. at 561.

         Here, there is no support to show that the trial court abused its discretion in finding

Appellant competent to waive the right to counsel.                       Appellant appeared to be able to

acknowledge the seriousness of the charges and appreciate that he was at trial. Although he did

not like what his attorney had told him, Dr. Lahiri and Dr. Goodness found nothing that would

prevent Appellant from communicating with counsel. Both experts explicitly found that he

could assist counsel in his defense. As such, the trial court did not abuse its discretion by finding

that he met the threshold competency requirement to waive the right.

    “Knowingly, voluntarily, and intelligently” waiving the right to counsel and affirmative
                                  assertion of Faretta right

         Having found that Appellant had the ability to understand the nature of these proceedings

and consult with counsel, the next step is to determine whether Appellant knowingly, voluntarily,

and intelligently waived his right to counsel and asserted his Faretta right.

         A competent criminal defendant may only waive this right if he does so knowingly,

voluntarily, and intelligently. Zerbst, 304 U.S. at 467-68, 58 S.Ct. at 1024. The “heavy burden”

of proof that a defendant knowingly, voluntarily, and intelligently waived his constitutional right

to counsel lies at all times with the State on direct appeal. Geeslin, 600 S.W.2d at 313. “A

citations omitted)(emphasis in original). The focus of the competence inquiry at the self-representation phase is
whether a defendant “competent enough to stand trial . . . suffer[s] from severe mental illness to the point where they
are not competent to conduct trial proceedings by themselves[.]” Chadwick, 309 S.W.3d at 561 (citing Edwards,
554 U.S. at 178, 128 S.Ct. at 2388).

                                                        - 21 -
waiver of the right to counsel will not be lightly inferred and the courts will indulge every

reasonable presumption against the validity of such a waiver.” Id. (internal quotation marks

omitted). As a procedural safeguard against constitutionally insufficient waiver, the Texas Court

of Criminal Appeals requires the trial court to issue so-called Faretta warnings making the

defendant “aware of the dangers and disadvantages of self-representation.” Id. Failure to issue

these warnings invalidates the conviction. Id. Where a defendant attempting to assert his

Faretta rights “is not represented by counsel and has not competently and intelligently waived

his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction

and sentence depriving him of his life or his liberty.” Zerbst, 304 U.S. at 468, 58 S.Ct. at 1024;

see also Fernandez, 283 S.W.3d at 31 (self-representation without proper waiver presents

structural error in trial).

        Here, the trial court clearly admonished Appellant each time he requested to represent

himself that he would be required to abide by the Rules of Evidence and Criminal Procedure, and

even went so far as to characterize the decision to self-represent as being a bad idea. As such,

the trial court adequately issued Faretta warnings. However, the record does not support a

finding that the State has affirmatively established that Appellant knowingly, voluntarily, and

intelligently waived his right to counsel and reasserted his Faretta rights. At the close of the

prosecution’s voir dire examination but before the jury was impaneled, Appellant apparently

sought to represent himself again. He and the trial court engaged in the following colloquy:

        THE COURT:            And I’m not going to delay the trial so you can, as Judge Walker
                              put it a few weeks ago, go to law school. So you can choose to
                              represent yourself, but you are going to be familiar with the Code
                              of Criminal Procedure and the Rules of Evidence, and you are
                              going to have to follow those rules. So knowing that, do you still
                              want to represent yourself?

        THE DEFENDANT: Did he [counsel] say he didn’t want to represent me or what?

                                              - 22 -
       THE COURT:             No, no, he says that you wanted to represent yourself. So is that
                              true or not true?

       THE DEFENDANT: I thought about it, but he says he will still do it.

       THE COURT:             He will still do it because --

       THE DEFENDANT: Okay, I’ll take over. Give me my pen. I will write this down. . . .

       In determining whether a defendant has knowingly waived his right to counsel, the trial

court need not resort to a formulaic set of questions. Blankenship, 673 S.W.2d at 584. However,

“Faretta [likewise] does not authorize trial judges across this state to sit idly by doling out

enough legal rope for defendants to participate in impending courtroom suicide; rather, judges

must take an active role in assessing the defendant’s waiver of counsel.” Id. The court should at

the very least generally ask questions about things like age, level of education, and the like. Id.

The record indicates that a previous trial judge had made inquiries into his age, level of

education, and familiarity with the legal system at a pretrial hearing on competency. In these

aspects, the previous trial court judge fulfilled part of its responsibility to ensure Appellant

properly waived the right to counsel, and it is not necessary to now impose a rule that trial judges

in this district must recite some talismanic set of questions to elicit answers that a defendant has

previously given before granting waiver of counsel. See Blankenship, 673 S.W.2d at 584 (trial

courts do not need to use formulaic questions to assess waiver).

       However, the factual circumstances of this case render it different. During Appellant’s

final request to represent himself, the trial court failed to make any inquiry of Appellant

whatsoever, despite having notice of Appellant’s prior mental health history, including the fact

that Appellant had previously professed to suffering from hallucinations and persecutory

delusions that his own lawyers sought to have him convicted of a crime. Appellant had also been



                                               - 23 -
held to be incompetent to stand trial in other criminal cases. Compare Moore, 999 S.W.2d at

396 (giving of Faretta warnings, appointment of standby counsel, and relinquishment of self-

representation right to standby counsel after one day was constitutionally sufficient without

inquiry into competence where appellant’s only claim of incompetence was a prior history of

depression and several outbursts during trial). Mental state is fluid, and in cases where a

defendant has shown a decrease or the potential for a decrease in cognitive function because of a

mental condition, the trial court has a duty under Blankenship to appraise itself of a defendant’s

mental state in assessing competence to self-represent.

       The State avers that in spite of any question on mental state from the trial court, the

record establishes that Appellant knowingly, voluntarily, and intelligently waived his right to

counsel because at the time of the request, he appeared oriented as to time and space, he received

Faretta warnings, he acknowledged some familiarity with the Penal Code, and he signed a

written waiver of his right after previously invoking it several other times. It also cites a string

of four cases for the proposition that a clear expression of the desire to proceed pro se coupled

with proper Faretta warnings is sufficient evidence to find knowing waiver. See Barras v. State,

902 S.W.2d 178, 180-81 (Tex.App.--El Paso 1995, pet. ref’d); Ford v. State, 870 S.W.2d 155,

158 (Tex.App.--San Antonio 1993, pet. ref’d); Hobbs v. State, 778 S.W.2d 185, 186-87

(Tex.App.--Beaumont 1989, no pet.); Logan v. State, 690 S.W.2d 311, 313-14 (Tex.App.--Dallas

1985, pet. ref’d). These cases are distinguishable from the situation presented here. In Hobbs

and Logan, neither appellant made any claim that they were insane, incompetent to stand trial, or

suffered from a debilitating mental health condition. Hobbs, 778 S.W.2d at 187; Logan, 690

S.W.2d at 313-14. In Ford, the trial judge specifically asked the appellant “whether he had

mental or physical disabilities.” 870 S.W.2d at 158. And in Barras, the appellant brought a



                                               - 24 -
habeas corpus challenge that shifted the burden of proof on the waiver’s validity from the State

to him, thereby explaining why bare evidence of a presumptively valid written waiver resulted in

the affirmance of his conviction. 902 S.W.2d at 180-81.

       Clearly, the trial court gave adequate Faretta warnings, but the record reflects the

prosecution has failed to affirmatively demonstrate that Appellant knowingly, voluntarily, and

intelligently waived his rights in light of Appellant’s mental illness. As to the State’s contention

that Appellant was oriented as to time and space, “[a] waiver of the right to counsel will not be

presumed from a silent record.” Barbour v. State, 551 S.W.2d 371, 373 (Tex.Crim.App. 1977).

The trial court had a duty to appraise itself of Appellant’s mental state, given the fact that mental

state is not static but changeable, given that Appellant had engaged in a pattern of erratic

behavior, and given that at prior hearings he vacillated between self-representation and

representation by counsel and admitted to having “schizo affected” outbursts . Upon extensive

review of the proceedings, the trial court failed to adequately provide a record that affirmatively

shows that Appellant “voluntarily exercis[ed] his informed free will,” Faretta, 422 U.S. at 834,

95 S.Ct. at 2541, free from the influence of mental disease or defect. The record does not

establish that Appellant’s perfunctory offer to “take over” constituted a clear and affirmative

assertion of his Faretta rights, particularly when viewed in light of the fact that he voiced

paranoid concerns that his attorney wished for him to be sent to jail. Cf. Brown, 2013 WL

1281917 at *4 (not designated for publication)(“[D]issatisfaction with appointed counsel for

failing to prosecute motions drafted by him and his request for hybrid representation did not

establish a clear and unequivocal assertion of his right to self-representation.”). As such, I would

hold that Appellant’s waiver of counsel and assertion of Faretta rights was invalid.

                            Mental illness limitation of Faretta rights



                                               - 25 -
       Secondly, I would also hold that the trial court abused its discretion by finding Appellant

competent to represent himself at trial.      Although the trial court does not appear to have

explicitly ruled on Appellant’s competency to represent himself under Edwards, the reviewing

court may assume through the court’s conduct that it impliedly found him competent. See Riley,

378 S.W.3d at 459 (“We must presume that all findings made by the trial judge were made in

favor of the prevailing party.”).

       Although the right to self-representation is said to be absolute, the trial court has the duty

to determine competence to self-represent based on a narrow mental health exception to Faretta.

Edwards, 554 U.S. at 174, 128 S.Ct. at 2385-86. As with competency to waive counsel, the fact-

intensive competency determinations on self-representation are committed to the sound

discretion of the trial court, Chadwick, 309 S.W.3d at 561, and “it is not the province of an

appellate court to play the role of the Monday morning quarterback” and second guess the trial

court’s discretionary decisions merely because they disagree with how it exercised that

discretion. Henderson v. State, 2007 WL 4439498 *1 (Tex.App.--Texarkana 2007, pet. ref’d)

(not designated for publication). However, an appellate court does maintain the power to

overturn the trial court’s competency determination if they find that its “ruling was so clearly

wrong as to lie outside the zone within which reasonable people might disagree.” Taylor v.

State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008).

       The United States Supreme Court in Edwards recognized that a defendant with mental

illness can be competent to communicate with counsel and assist in his own defense, yet be

incompetent to represent himself. See Edwards, 554 U.S. at 175, 128 S.Ct. at 2387. It also

recognized that a defendant may knowingly, voluntarily, and intelligently waive his right to

counsel and assert his Faretta rights during a lucid interval, yet later on lapse into a mental state



                                               - 26 -
that prevents him from being able to represent himself. Id.

       As such, the Edwards court provided for another competency determination separate

from competency to stand trial and waive counsel, recognizing that “[m]ental illness itself is not

a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s

functioning at different times in different ways.” Edwards, 554 U.S. at 175, 128 S.Ct. at 2387.

The Edwards competency determination serves as a procedural safeguard allowing the trial judge

to ensure due process, the structural integrity of trial, and the dignity of the defendant and the

proceedings. Id. at 177; 2387. However, mental illness alone is not sufficient to allow the trial

court to prevent a defendant from asserting his Faretta rights. Moore, 999 S.W.2d at 395. “To

raise the issue of competency by means of the defendant’s past mental health history, there

generally must be evidence of recent severe mental illness or bizarre acts by the defendant or of

moderate retardation.” Id.; compare Cudjo v. State, 345 S.W.3d 177, 186 (Tex.App.--Houston

[14th Dist.] 2011, pet. ref’d)(defendant with bipolar disorder competent to waive counsel absent

evidence mental illness interfered with trial or the decision-making process) with Chadwick, 309

S.W.3d at 562-62 (affirming denial of self-representation where defendant filed incoherent

motions, disrupted trial proceedings, and threatened to place an “Israeli curse” on the trial court).

In making a determination on competency to self-represent, the trial court should bear in mind

that “[d]isorganized thinking, deficits in sustaining attention and concentration, impaired

expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair

the defendant’s ability to play the significantly expanded role required for self-representation

even if he can play the lesser role of the represented defendant.” Edwards, 554 U.S. at 175-76,

128 S.Ct. at 2387 (citing Brief for American Psychological Association et al. as Amici Curiae

Supporting Neither Party at 26).



                                               - 27 -
        It is incumbent upon an appellate review to tread lightly when the court weighs the issue

of competency of a defendant to self-represent. It is imperative to refrain from any infringment

of a defendant’s Faretta rights by imposing paternalistic restrictions on those rights, and a trial

court is properly reluctant to impose counsel where none is wanted. In Faretta, the United States

Supreme Court invoked the British Star Chamber’s practice of appointing counsel over objection

as a flagrant due process violation whose commission the Framers of the Sixth Amendment

sought to prevent, particularly when reviewed in light of the American colonists’ deep-rooted

suspicion of lawyers. 422 U.S. at 826-27; 95 S.Ct. at 2537 (discussing “a sudden revival, after

the War of the Revolution, of the old dislike and distrust of lawyers as a class” and noting that

“[i]n the heat of these sentiments the Constitution was forged”). However, by the same token,

blind adherence to the letter of Faretta undermines both the dignity and fairness underpinning

the right to self-representation when mental illness comes into play. Edwards, 554 U.S. at 177,

128 S.Ct. at 2387. “No trial can be fair that leaves the defense to a man who is insane, unaided

by counsel, and who by reason of his mental condition stands helpless and alone before the

court.” Massey v. Moore, 348 U.S. 105, 108, 75 S.Ct. 148 (1954).

        Here, my review reveals that the trial court abused its discretion in finding Appellant

competent to represent himself. In Chadwick, the Texas Court of Criminal Appeals upheld the

denial of an appellant’s Faretta rights where evidence in the record indicated he engaged in

disruptive behavior, gave a rambling opening statement, and filed several incoherent motions.

309 S.W.3d at 562.          Here, the record is replete with stark evidence that Appellant, like

Chadwick, was not competent to represent himself at trial. Prior to the date of trial, Appellant

filed motions that lacked any sense of coherence whatsoever.6 He had also on prior occasions


6
  For example, the Court reprints Appellant’s “Declaration of Conflict Between Attorney and Client and Motion for
Substitution of Appointed Counsel” below verbatim:

                                                     - 28 -
warned the judge about “schizo affected” outbursts, repeatedly asserted and terminated his self-

representation rights because he believed his own attorney wanted to send him to jail, and

admitted to hearing voices and seeing shadows that did not exist. Thus, the trial court was on

notice of Appellant’s bizarre behavior.

       The trial court was also aware that the behavior likely stemmed from Appellant’s

deficient intellectual abilities and long history of mental illness. Although both experts found

Appellant competent to stand trial, neither assessed his competence to represent himself in a jury

trial he had not even prepared for. Nevertheless, there is ample evidence in the record to show

that Appellant should not have been allowed to represent himself. Dr. Goodman informed the

court that Appellant had a borderline IQ and low intellectual ability, and Dr. Lahiri rated




       Comes now Bobby Cortez, defendant pro se and layman-at-law, and respectfully moves
       this court for the substitution of attorney of record David Bays and in support thereof
       would should unto the court as follows.

       Motions are hovering over solid grounds investigators are promised on all sides, interests
       flat out tired and the construction has rested therefore leaving it a subject to the Fly trap
       theory.

       Furthermore may stress be strickened and consider the weight and balancing test of this
       document be delivered for the courts discretion. I have been trying to breach
       understanding, but some of the powers or Force which collided as like thunder causing
       altered egos base on ‘work product’ in the class of schemes, for to know is like a fully
       functional agreement, however it turns out to be.

       All the advocate does is makes questionairs and then forbids them on a type of level or
       desire therefore being an attorney he puts up with it as he pleases and better yet as of
       experience, you can’t hold it against him. If any sense of all; Where does it take us? ..
       Why this? .. Why me? .. Why certainly? all of a sudden. Once again, let this plea do
       good to elevate in its range of courage to enlighten this form of magnitude. If it is held, it
       is only held by theories to be loosened out of the abyss of the matter like there is a root
       that is steady and firm.

       If it is so, may it please the court to spin its reel over to cast out and unravel this dilemma
       for which is the target of this motherfactor. Strike…on this side, for what is the sole
       purpose of making up a grievance... it is what it is.

       There are many points in this issue of conflict which must be for the need to proceed and
       not be deceive [sic]. May the almighty power of the court of justice in its district and
       grant me a fair and impartial claim.

                                                       - 29 -
Appellant’s insight and judgment as poor. All of those factors weigh against the exercise of

Faretta rights. See Moore, 999 S.W.2d at 395.

        Furthermore, Dr. Lahiri’s noted that Appellant exhibited “paranoid persecutory ideations

of being harmed” and that he was prone to violent outbursts. Both Dr. Lahiri and Dr. Goodness’

reports confirmed that Appellant admitted to experiencing auditory and visual hallucinations,

even at the time of interview. Dr. Lahiri formally diagnosed Appellant with the depressive

subtype of schizoaffective disorder, which is marked by hallucinations and the presentation of

symptoms from both major depressive disorder and schizophrenia. See American Psychiatric

Association, Diagnostic and Statistical Manual (5th ed. 2013). By virtue of the nature of

Appellant’s mental condition, he exhibited the potential for “[d]isorganized thinking, deficits in

sustaining attention and concentration, [and] impaired expressive abilities.” Edwards, 554 U.S.

at 176, 182 S.Ct. at 2387. Appellant’s symptoms were only partially suppressed by a medication

regimen as per Dr. Lahiri. Additionally, Dr. Goodness stated in her report that Appellant did not

use his medication consistently, that “maintaining competence will require medication

compliance,” and that [i]f his medications are completely discontinued, he may become

psychotic, irrational and/or overwhelmed by emotion and, thus, he may become incompetent to

stand trial.”

        A person of sound mind does not need to possess the skill of a trained lawyer in order to

represent himself and may freely and as a matter of constitutional right engage in the same poor

strategic decisions Appellant made at trial -- for example, waiving voir dire, failing to use

preemptory strikes to eliminate pro-prosecution jurors, filing incoherent motions, citing

inappropriate passage of law out of context, and speaking only one nonsensical sentence at




                                              - 30 -
closing arguments for punishment.7 See Faretta, 422 U.S. at 834, 95 S.Ct. at 2540-41 (noting

that although a defendant “may conduct his own defense ultimately to his own detriment, his

choice must be honored out of that respect for the individual which is the lifeblood of the

law”)(internal citations and quotation marks omitted). However, the evidence demonstrates that

even while medicated, Appellant may have been competent to assist counsel in his own defense,

but not competent to defend himself.

          To allow a lay criminal defendant with borderline IQ and a cognitive disorder who is

experiencing partially suppressed paranoid delusions and auditory hallucinations to stand as

adversary to a trained lawyer in the well of a courtroom, question child witnesses, and subject

himself to the possibility of life imprisonment at the hands of a jury personally selected by the

prosecutor does not inspire confidence in the rule of law, the fairness of the verdict, or the

legitimacy of this state’s courts.               See Edwards, 554 U.S. at 177, 128 S.Ct. at 2387

(“[P]roceedings must not only be fair, they must appear fair to all who observe them.”)(internal

citation and quotations marks omitted). In reviewing this case, one can’t ignore the question

posed to the Edwards court by an amicus psychiatrist: “[H]ow in the world can our legal system

allow an insane man to defend himself?” 554 U.S. at 177, 128 S.Ct. at 2387 (citing Brief for

Ohio et al. as Amici Curiae 24)(internal quotation marks omitted).

          The short answer as provided by Edwards is that it cannot. In my view, the trial court

abused its discretion in permittin1g Appellant to represent himself when it was presented with

ample evidence of Appellant’s cognitive and psychiatric problems and yet failed to consider


7
    The transcript of Appellant’s entire closing argument at punishment is as follows:

          THE COURT: [. . .] Mr. Cortez, you have 15 minutes for argument. If you would like
          to proceed, you may.

          THE DEFENDANT: Blah blah blah blah blah blah blah blah blah blah blah but blah
          blah blah blah is blah blah blah blah. No further.

                                                         - 31 -
them in granting Appellant his Faretta rights.

       Accordingly, I would sustain Issue One and Two and reverse and remand for a new trial.



April 10, 2014
                                     YVONNE RODRIGUEZ, Justice




                                                 - 32 -
