

Affirmed and Opinion filed April 5, 2011.
 
In The
 
Fourteenth Court of
Appeals
                                                                                          

NO. 14-09-00960-CR

 
GEORGE VALENTINO BRENT, Appellant
V.
THE STATE OF TEXAS, Appellee
 

On Appeal from the County Court
at Law No. 1 
Fort Bend County, Texas
Trial Court Cause No. 140573

 
OPINION
A jury
convicted appellant, George Valentino Brent, of misdemeanor assault-family
violence and assessed punishment at sixty days’ confinement in county jail, probated. 
In two issues, appellant contends the trial court erred by refusing his request
for court-appointed counsel and admitting hearsay testimony in violation of
appellant’s Sixth Amendment right to confrontation.  We affirm.
I.   Background
In
November 2008, appellant was arrested for allegedly assaulting his wife.  He was
released on bond pending trial.  The bail bond included language specifying the
date of appellant’s first court appearance and advising appellant as follows:
“Your attorney should be present with you on this date.  The judge will not
appoint you an attorney until you have completed a financial statement and are
shown to be indigent.  It is your responsibility to attempt to hire an attorney
to represent you on this charge.”  Appellant initialed under this language.  The
same day, a magistrate advised appellant of his right to obtain court-appointed
counsel.  Appellant signed a notification of his rights, on which he indicated,
“The accused . . . does not want appointed counsel.”
In
December 2008, appellant appeared in court and was given a right-to-counsel
admonishment form.  Appellant indicated on the form, “I want to proceed with my
case today with the attorney of the day.”  Appellant’s case was reset twice. 
Both notices of resetting indicated the case was reset in order for appellant
to retain counsel.
Subsequently,
appellant’s wife retained an attorney to represent him.  Appellant and his
attorney appeared in court twice, and both times the case was reset.  
Appellant’s attorney later filed a motion to withdraw on grounds that appellant
desired to represent himself and had failed to pay the trial fee.  In the
motion, the attorney asserted that appellant consented to her withdrawal “as
evidenced by [his] signature on this motion.”  However, appellant did not sign
the motion.  On June 4, 2009, the trial court commented on a notice of
resetting that appellant’s attorney was not present.  On the same day, the
trial court granted appellant’s attorney’s motion to withdraw.  
On
August 3, 2009, appellant filed an “Objection to Motion and Order Granting
Motion to Withdraw as Counsel,” asserting he was unaware his attorney had
withdrawn and did not wish to represent himself.  On August 4, 2009, appellant
appeared in court, and his case was reset to September 8, 2009 to allow him time
to retain new counsel.
Appellant
filed an unsigned, unsworn request for court-appointed counsel, which was
denied on August 11, 2009.  He also sent several discovery requests to the
district attorney’s office.  In most of appellant’s filings, he acknowledged
that he was representing himself “pro se.”  After appellant filed a motion to
compel, the State filed a discovery response.
Trial
began on September 8, 2009.  The same day, appellant filed a memorandum
detailing the State’s alleged discovery-related misconduct and a related motion
to dismiss.  In the memorandum, appellant advised that a second request for court-appointed
counsel had been filed, although such request is not part of the record.  After
pre-trial discussions concerning appellant’s indigency, appellant advised he
desired a jury trial, and the case proceeded to trial.  Appellant represented
himself, but the trial court assigned “stand-by” counsel who sat with appellant
and answered his questions.  
Following
his conviction, appellant discussed with the trial court the procedure for
punishment hearings.  The trial court reprimanded appellant for not hiring an
attorney after having been repeatedly advised to do so.  The trial court further
stated that it had researched and determined the value of appellant’s home and,
based on this information, “under no circumstances could the Court ever find you
indigent.”  Appellant conceded that his home was worth at least $260,000.  Thereafter,
the jury assessed punishment at sixty days’ confinement in county jail,
probated.
II.   Right to Representation by
Counsel
In his
first issue, appellant contends the trial court erred by “forcing appellant to
represent himself at trial” because (1) appellant did not waive his right to
representation by counsel, (2) he was not afforded a reasonable opportunity to retain
counsel, (3) he was denied court-appointed counsel, and (4) he was not afforded
the statutorily required ten days’ notice before the case proceeded to trial. 
A.   Applicable Law
and Standard of Review
Most of the
complaints in appellant’s first issue concern the trial court’s purported
failure to comply with the requirements of article 1.051(e) of the Code of
Criminal Procedure which, in pertinent part, are as follows: “If a nonindigent
defendant appears without counsel at a proceeding after having been given a reasonable
opportunity to retain counsel, the court, on 10 days’ notice to the
defendant of a dispositive setting, may proceed with the matter without
securing a written waiver or appointing counsel.”  Tex. Code. Crim. Proc. Ann.
art. 1.051(e) (West Supp. 2009) (emphasis added).
“A
defendant in a criminal matter is entitled to be represented by counsel in an
adversarial judicial proceeding.”  Id. art. 1.051(a) (West Supp. 2009); see
also U.S. Const. amend. VI & XIV; Tex. Const. art. I, § 10.  “An
indigent defendant is entitled to have an attorney appointed to represent him
in any adversary judicial proceeding that may result in punishment by
confinement . . . .”  Tex. Code. Crim. Proc. Ann. art. 1.051(c) (West Supp.
2009).  We review for abuse of discretion a trial court’s determination
regarding indigence.  See Rosales v. State, 748 S.W.2d 451, 455 (Tex.
Crim. App. 1987).  Further, we review for abuse of discretion the trial court’s
decision, pursuant to article 1.015(e), to proceed to trial on charges against
an unrepresented, nonindigent defendant, cognizant that the court has no
discretion to ignore statutory requirements.  See Edwards v. State, 10
S.W.3d 699, 702 (Tex. App.—Houston [14th Dist.] 1999), pet. dism’d, 67
S.W.3d 228 (per curiam).
B.   Analysis
We agree
with appellant’s assertions that he was denied court-appointed counsel and he did
not sign a written waiver of his right to representation by counsel.  Hence, we
examine the record to determine whether the trial court erred by proceeding to
trial without securing appellant’s waiver or appointing him counsel, pursuant
to article 1.051(e).
1.   Appellant
had a reasonable opportunity to retain counsel
We first
address appellant’s contention that he was not afforded a reasonable
opportunity to retain counsel.  During pre-trial discussions on September 8,
2009, appellant expressed that he did not desire to represent himself.  The
trial court explained it would not appoint counsel for appellant without
reviewing appellant’s tax returns.  Appellant responded he had documentation indicating
he was exempt from having to file a return.  The trial court explained that indigency
is based on a person’s household income and assets and appellant would also
need to provide his wife’s tax returns.  See Crauder v. State, 933
S.W.2d 273, 275 & n.2 (Tex. Crim. App. 1996) (noting spouse’s earnings are
considered in determining a defendant’s indigency status).  Appellant expressed
that his wife was uncooperative and would not provide her returns.  The trial
court emphasized appellant had not established his indigency, and the case
proceeded to trial.
Appellant
argues the foregoing pre-trial exchange reflects that “it was at least unclear
whether the trial court had made a final decision regarding Appellant’s request
for court appointed counsel prior to the day of trial.”  According to appellant,
he did not have a reasonable opportunity to retain counsel because he still
believed on September 8 that the trial court would appoint counsel.  He
contends nothing in the record indicates he was aware before September 8 that
the trial court had denied his request for court-appointed counsel.  Appellant also
argues that his following assertion during pre-trial discussions indicates that
he was confused regarding the nature of the September 8 setting: “It was my
understanding that we were still in the discovery phase here, and I believe
that when we came to court today that the Court would compel the district
attorney to actually sit down and go through the discovery phase and present
evidence in the form of the exhibits and I didn’t believe we would actually be
at trial today so in essence, I wasn’t prepared.”
Reviewing
the entire record, we conclude appellant had a reasonable opportunity to retain
counsel.  Appellant was arrested in November 2008, at which time he was made
aware of his responsibility to either hire an attorney or establish his right
to be appointed an attorney.  Settings involving his case were reset twice to
allow appellant time to retain counsel.  Appellant’s wife then hired an
attorney to represent appellant.  Although appellant’s attorney appeared in
court on appellant’s behalf for two settings, appellant was aware at least by
August 3, 2009 that his attorney had been allowed to withdraw.  Appellant
appeared in court on August 4 and the case was reset to September 8, once again
to allow him time to retain counsel.  On August 11, the trial court denied
appellant’s request for court-appointed counsel, which was unsigned, unsworn,
and had no financial documentation attached.  On the same day, appellant served
the State with several discovery requests.  Importantly, the record includes a
letter from appellant to the district attorney.  No date or file stamp appears
on the letter, but it apparently was served with appellant’s discovery
requests.  In pertinent part, the letter states as follows:  
Mr.
District Attorney,
As you are aware, on 4 August 2009,[1]
contrary to objection my attorney was allowed to withdraw as my counsel on case
No. 140573 Court No. 1 of Fort Bend County Texas.
I received nothing from my attorney in terms of service or counsel, nor
was my attorney compelled by the court to deliver to me any evidence, notes on
Pre- Trial conference, or arguments/agreements between my attorney and you. 
However, I was allowed five weeks by the court to seek new counsel and
prepare my defense for trial.  Therefore, today I seek your cooperation in
this matter via full disclosure.  I have prepared the attached motions to
produce discovery, witness list, medical records, and statements/affidavits.
(emphasis added).  The
emphasized portion of the letter reflects appellant was aware he had five weeks
in which to retain new counsel.  On August 20, appellant filed a motion to
compel discovery; on the motion, appellant indicated he was acting “pro se.” 
Finally, on September 8, appellant filed a “Pre-Trial Memorandum” in which he
asserted, “A second application for court appointed counsel with additional
information requested by the court has been submitted.”  Appellant’s filing a
second request for court-appointed counsel is evidence he was aware that his
first request had been denied.  In light of the procedural history, we conclude
the trial court did not abuse its discretion by finding appellant had a
reasonable opportunity to retain counsel before the September trial.  
2.   Appellant
had ten days’ notice of a dispositive setting
We next
address appellant’s contention he was not allowed ten days’ notice before the
trial court proceeded to trial without a written waiver or appointing counsel. 
Under article 1.051(e), “the court, on 10 days’ notice to the defendant of a
dispositive setting, may proceed with the matter without securing a written
waiver or appointing counsel.”  Tex. Code. Crim. Proc. Ann. art. 1.051(e).  As
the State concedes, the August 4, 2009 “Notice of Resetting” did not indicate
what type of proceeding was set for September 8, 2009.  Consequently, from the notice
alone we cannot determine whether the September 8 setting was dispositive. 
However, in his letter to the district attorney, appellant explained that the
trial court allowed five weeks after his counsel withdrew “to seek new counsel
and prepare my defense for trial.”  This letter is some evidence appellant had
more than ten days’ notice of a dispositive setting, namely, his trial.  We
conclude the trial court did not abuse its discretion by finding appellant was
afforded the ten days’ notice required under article 1.051(e).      
Accordingly,
appellant has not established that the trial court erred by proceeding to trial
under article 1.051(e).  We overrule appellant’s first issue.  
III.   Right to Confrontation
            In his second
issue, appellant contends the trial court erred by admitting certain testimony
in violation of his Sixth Amendment right to confrontation.  However, appellant
did not object to this testimony on confrontation grounds; he objected only that
the testimony was hearsay and nonresponsive.  Accordingly, appellant did not
preserve his confrontation issue.  See Tex. R. App. P. 33.1(a); Reyna
v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (“An objection on
hearsay does not preserve error on Confrontation Clause grounds.”).  We
overrule appellant’s second issue.
            The trial
court’s judgment is affirmed.
 
                                                                                    
                                                                        /s/        Charles
W. Seymore
                                                                                    Justice
 
Panel
consists of Justices Seymore, Boyce, and Christopher.
 
Publish
— Tex. R. App. P. 47.2(b).




[1]
Actually, the trial court signed an order granting the withdrawal on June 4,
2009.  However, in his “Objection to Motion and Order Granting Motion to Withdraw
as Counsel,” appellant averred that his attorney withdrew without his consent
and he was unaware of the withdrawal until July 28, 2009.  


