Opinion filed September 27, 2012




                                                            In The


    Eleventh Court of Appeals
                                                        __________

                                                No. 11-10-00272-CR
                                                    __________

        TROY ROBINSON A/K/A TROY O’NEAL ROBINSON, Appellant

                                                                V.

                                        STATE OF TEXAS, Appellee


                                    On Appeal from the 350th District Court

                                                  Taylor County, Texas

                                            Trial Court Cause No. 9453-D


                                                       OPINION
          Following a plea of not guilty, appellant, Troy Robinson a/k/a Troy O’Neal Robinson,
was convicted by a jury of delivery of cocaine in a drug-free zone. At the punishment phase,
appellant pleaded true to two prior felony convictions. The trial court assessed punishment at
confinement for a term of forty years.1
          Appellant presents four issues on appeal. In his first and third issues, appellant asserts
that the trial court abused its discretion by denying appellant’s request to represent himself and

          1
            We note that the judgment incorrectly states that the jury assessed appellant’s punishment. The record reflects that the
trial court assessed punishment.
by denying his motion for new trial.       In his second issue, appellant challenges the legal
sufficiency of the evidence to support a finding of a drug-free zone. In his final issue, appellant
argues that the cumulative harm of the errors denied him a fair trial. We affirm.
                                        Background Facts
       Officer Ken Robinson worked undercover in the Special Operations Division of the
Abilene Police Department, making controlled purchases of narcotics.             Officer Robinson
contacted appellant and his son, Justin Robinson, on December 28, 2009. Two days later,
Officer Robinson contacted Justin and arranged to buy cocaine in the parking lot at the
intersection of 12th Street and Grape Street. There was a small shopping center there, and
Franklin Middle School was located a block away.
       Officer Robinson saw appellant arrive; Justin was in the passenger seat. When Officer
Robinson pulled over to appellant’s car, appellant stepped out of the vehicle and opened the
hood. Appellant told Officer Robinson that the cocaine was inside a cup placed on the ground.
Officer Robinson refused to get out of the vehicle; appellant picked up the cup and drove to the
back of the building. There, Officer Robinson pulled up next to Justin, who was still in the
passenger side. Justin handed him the cup with the drugs in exchange for $150.
       Appellant was indicted on two counts of delivery and possession of more than one gram
but less than four grams of cocaine within 1,000 feet of a school. For enhancement purposes, the
indictment included two prior felony convictions for burglary of a building. The jury found
appellant guilty of count one of the indictment and, in answer to a special issue in the jury
charge, found the offense was committed in a drug-free zone. Appellant elected to have the trial
court assess punishment. Appellant pleaded true to the enhancement allegations, and the trial
court assessed punishment at confinement for forty years. The trial court denied appellant’s
motion for new trial after hearing evidence on the motion.
                                   Sufficiency of the Evidence
       In his second issue, appellant argues that the evidence is insufficient to support the jury’s
finding that the offense of delivery of cocaine occurred in a drug-free zone. We review a
sufficiency of the evidence issue, regardless of whether it is denominated as a legal or factual
claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of

                                                 2
the evidence in the light most favorable to the verdict and determine whether any rational trier of
fact could have found, beyond a reasonable doubt, that Franklin Middle School was a school as
defined in the jury charge. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010).      We afford almost complete deference to the jury’s determinations of
credibility and resolve any inconsistencies in the evidence in favor of the verdict. Jackson, 443
U.S. at 326; Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000).
       Appellant argues that there was insufficient evidence that Franklin Middle School was a
school as defined in the jury charge because, at the time of the offense, Franklin Middle School
was not in operation. The trial court’s charge to the jury gave the following definitions:
              “Drug Free Zone” means in, on, or within one thousand feet (1,000') of the
       premises of a school.

               “Premises” means real property and all buildings and appurtenances
       pertaining to the real property.

               “School” means a private or public elementary or secondary school.

       Because the State must prove the offense occurred within 1,000 feet of a “school” for the
evidence to be legally sufficient, we must define “school” before reviewing the evidence. When
construing a statute, we give effect to the plain meaning of the text where possible. Clinton v.
State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011). The applicable statute defines a “school” as
a private or public elementary or secondary school.        TEX. HEALTH & SAFETY CODE ANN.
§ 481.134(a)(5) (West Supp. 2012). Black’s Law Dictionary defines “school” as “[a]n institution
of learning and education.” BLACK’S LAW DICTIONARY 1463 (9th ed. 2009). Neither the
dictionary nor the statutory definition of “school” depends on the school being currently in
session. Therefore, the plain language of the statute makes apparent that a person need only
deliver a controlled substance within 1,000 feet of a school (or its premises) to have committed
the offense in a drug-free zone. “[T]he name of the premises alone may be sufficient to raise a
presumption that it is a private or public elementary or secondary school.” Young v. State, 14
S.W.3d 748, 754 (Tex. Crim. App. 2000). In Young, two officers testified that the premises in
question were those of a school, and one of the officers testified to the distance between the
premises and the offense. Id. at 753–54.

                                                 3
       To prove appellant delivered cocaine within a drug-free zone, the State elicited testimony
from three police officers involved in the undercover operation. Officer Robinson purchased the
cocaine and described the location where he met appellant and Justin, stating “[t]here is a school
just a block west, Franklin Middle School.” Officer David “D.D.” Gray testified that the actual
distance between the school and the location of the offense was approximately 228 feet. David
Gage, a former sergeant with the Abilene Police Department, worked as part of the undercover
team. On direct examination, he stated that Officer Robinson and appellant were “between the
old Franklin Middle School and the shopping center.” Gage further verified that Franklin
Middle School was still owned by the school district, even though it was not in use. As the
factfinder, the jury was the exclusive judge of the facts, the credibility of the witnesses, and the
weight to be given to the testimony. Brooks, 323 S.W.3d at 899; Bartlett v. State, 270 S.W.3d
147, 150 (Tex. Crim. App. 2008). The jury was free to believe or disbelieve all or any part of the
testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). We conclude a
rational jury could have determined beyond a reasonable doubt that Franklin Middle School was
a school as defined in the jury charge. Appellant’s second issue is overruled.
                                   Right of Self-Representation
       In his first issue, appellant complains that he did not effectively waive his right to self-
representation. The State contends that appellant never made a clear and unequivocal assertion
of that right, and even if he did, appellant withdrew his request. We review the factual issue of
whether a defendant has clearly and unequivocally invoked the right to self-representation for an
abuse of discretion. DeGroot v. State, 24 S.W.3d 456, 457–58 (Tex. App.—Corpus Christi
2000, no pet.). We view the evidence in the light most favorable to the trial court’s ruling and
will imply any findings of fact supported by the record. Chadwick v. State, 309 S.W.3d 558, 561
(Tex. Crim. App. 2010).
       A defendant in a state criminal trial has a constitutional right to proceed without counsel
when he voluntarily and intelligently elects to do so. U.S. CONST. amend. VI; TEX. CONST. art. I,
§ 10; Faretta v. California, 422 U.S. 806, 819 (1975); Williams v. State, 252 S.W.3d 353, 356
(Tex. Crim. App. 2008). This right of self-representation is implicit in the Sixth Amendment,
but it is not absolute.    Faretta, 422 U.S. at 834 n.46.         The defendant must clearly and
unequivocally assert the right to self-representation, thereby waiving the right to counsel
guaranteed by the Sixth Amendment. Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App.

                                                 4
1992); Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986); see Brewer v.
Williams, 430 U.S. 387, 404 (1977) (holding that courts must consider every reasonable
presumption against waiver of counsel). Once asserted, the trial court must advise the accused of
the consequences of self-representation. Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim.
App. 1984). If, after the trial court’s admonishments, the accused elects to continue pro se, he
should be allowed to do so provided the asserted right to self-representation is unconditional and
not asserted to disrupt or delay proceedings. Id. at 585.
         After asserting his right to self-representation, a defendant may waive it by his
subsequent conduct.             Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (citing
Chapman v. United States, 553 F.2d 886, 893 & n.12 (5th Cir. 1977)). The trial court may find a
waiver of the right where it reasonably appears that the defendant has abandoned his initial
request to represent himself or is vacillating on the issue. Id.
         Appellant argues he did not effectively withdraw his request for self-representation. We
disagree. The record shows the trial court appointed an attorney to represent appellant, but
appellant subsequently submitted two motions pro se—a motion to dismiss counsel and a motion
for self-representation. In his motion for self-representation, appellant only requested hybrid
representation: to appear “partially pro se and partially by counsel.”2 The trial court held a
hearing on the matter, during which it admonished appellant according to the requirements in
Faretta, to determine whether appellant was “clearly and unequivocally” asserting his right to
represent himself knowing of the dangers and disadvantages. See TEX. CODE CRIM. PROC. ANN.
art. 1.051(g) (West Supp. 2012); Williams, 252 S.W.3d at 356; Funderburg, 717 S.W.2d at 642.
During the hearing, appellant vacillated on the issue before ultimately consenting to
representation:
                 THE COURT: All right. Mr. Robinson, I understand that you wish to
         represent yourself and you do not wish [to] go forward with an attorney. Is that
         correct?

                THE DEFENDANT: Yes, sir, but I would like to have me a standby
         attorney.



         2
           The Texas Court of Criminal Appeals has held that there is no constitutional right in Texas to hybrid representation;
however, a trial court has the discretion to allow standby counsel. Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977)
(op. on reh’g); Webb v. State, 533 S.W.2d 780, 784 n.2 (Tex. Crim. App. 1976); see also McKaskle v. Wiggins, 465 U.S. 168, 183
(1984) (stating there is no constitutional right to hybrid representation).

                                                               5
               THE COURT: All right. Now, the law says -- of course, you are entitled
       to that. The law, though, requires that I make an inquiry of you that is fairly
       extensive before I decide on that request. You understand that, sir?

               THE DEFENDANT: Yes, sir.

               ....

               THE COURT: Do you wish to have [counsel] represent you?

               THE DEFENDANT: If he gonna act right, if he gonna do the right thing.

               ....

                THE COURT: So we are here again, one last time, do you want [counsel]
       to represent you at trial, or do you want to go forward on your own with just him
       sitting as a -- to give you advice when you ask him during trial?

               THE DEFENDANT: (Crying.) I guess I’ll let him represent me.

Appellant’s dissatisfaction with appointed counsel and his request for hybrid representation did
not establish a clear and unequivocal assertion of his right to self-representation. See Saldaña v.
State, 287 S.W.3d 43, 55 (Tex. App.—Corpus Christi 2008, pet. ref’d); Cain v. State, 976
S.W.2d 228, 235–36 (Tex. App.—San Antonio 1998, no pet.). Viewing the motion and the
hearing as a whole, appellant did not clearly and unequivocally assert his right to self-
representation. Appellant requested standby counsel and subsequently withdrew that request,
consenting to representation by appointed counsel. In the absence of a clear and unequivocal
assertion of his right to self-representation, the trial court did not abuse its discretion in denying
appellant’s request.   Appellant vacillated on the issue and ultimately chose representation.
Appellant’s first issue is overruled.
                            Denial of Appellant’s Motion for New Trial
       In his third issue, appellant argues that the trial court erred in denying his motion for new
trial. After hearing evidence on his motion, the trial court denied the motion. We review a trial
court’s ruling on a motion for new trial for an abuse of discretion. State v. Herndon, 215 S.W.3d
901, 906–07 (Tex. Crim. App. 2007).
       Appellant contends that the prosecution prevented a material witness, Justin, from
testifying. Under Rule 21.3(e) of the Texas Rules of Appellate Procedure, a defendant must be
granted a new trial “when a material defense witness has been kept from court by force, threats,

                                                  6
or fraud.” TEX. R. APP. P. 21.3(e). However, there is nothing in the record suggesting the
prosecution breached its duties. See TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005) (a
district attorney “shall not suppress facts or secrete witnesses capable of establishing the
innocence of the accused”). Appellant’s son invoked his Fifth Amendment right and did not
testify at appellant’s trial. A prosecutor risks reversible error by calling a witness who has
invoked the privilege. See Namet v. United States, 373 U.S. 179, 188–89 (1963). A defendant
has no right to have a witness assert his Fifth Amendment privilege against self-incrimination in
the presence of the jury. Ellis v. State, 683 S.W.2d 379, 382 (Tex. Crim. App. 1984). Neither
the prosecution nor the defense could call Justin to testify once he invoked his right against self-
incrimination.
       At the hearing on the motion for new trial, appellant questioned the prosecutor regarding
the plea bargain offered to Justin.     The prosecution admitted to withholding a final plea
agreement until hearing Justin’s testimony at appellant’s trial. Such actions are within the broad
discretion of the prosecution.    See Wayte v. United States, 470 U.S. 598, 607–08 (1985);
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). We view the evidence in the light most
favorable to the trial court’s ruling and find an abuse of discretion only when no reasonable view
of the record could support that ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.
2006). Appellant has failed to show that the trial court abused its discretion when it denied his
motion for new trial. Appellant’s third issue is overruled.
                                   Cumulative Error Doctrine
       Appellant argues in his last issue that the cumulative effect of the errors resulted in an
unfair trial. We have found no errors affecting appellant’s substantial rights. While a number of
errors may be harmful in their cumulative effect, non-errors cannot in their cumulative effect
cause error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).
       Appellant argues in the alternative that the prosecutor improperly questioned him on
cross-examination in violation of Texas Rule of Evidence 609(b) because the prosecutor asked
him about prior felony convictions that were over ten years old. TEX. R. EVID. 609(b). Appellant
did not preserve this complaint for appeal. To preserve a complaint for our review, a timely and
specific request, objection, or motion is required. TEX. R. APP. P. 33.1(a)(1); Layton v. State, 280
S.W.3d 235, 238 (Tex. Crim. App. 2009). Moreover, appellant’s argument is without merit.
Once appellant took the witness stand in his own defense, he was subject to the same rules as any

                                                 7
other witness and could be “impeached, contradicted, made to give evidence against himself,
cross-examined on new matters, and treated in every respect as any other witness.” Harper v.
State, 930 S.W.2d 625, 630–31 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant’s
counsel opened the door to the prosecutor’s line of impeachment questioning when his counsel
asked whether appellant had “prior problems with the law.”                                    Appellant’s fourth issue is
overruled.
                                                     This Court’s Ruling
          The judgment of the trial court is affirmed.



                                                                                  TERRY McCALL
                                                                                  JUSTICE


September 27, 2012
Publish. See TEX. R. APP. P. 47.2(b).
Panel3 consists of: Wright, C.J.,
McCall, J., and Hill.4




         3
           Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
         4
             John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

                                                                  8
Opinion filed September 27, 2012




                                              In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-10-00272-CR
                                         __________

      TROY ROBINSON A/K/A TROY O’NEAL ROBINSON, Appellant
                             V.
                   STATE OF TEXAS, Appellee


                           On Appeal from the 350th District Court
                                   Taylor County, Texas
                               Trial Court Cause No. 9453-D



                               DISSENTING OPINION
       I respectfully dissent because a rational jury could not have determined beyond a
reasonable doubt that a building owned by a school district, which had formerly been used as a
middle school but which was not being used as a school at the time of the offense, was a school,
where there was no evidence as to whether the non-use of the premises as a school was
permanent or temporary. As the majority notes, “school” is defined as a private or public
elementary or secondary school. The only reasonable conclusion one can reach is that a building
that is a former school that is not being used as a school at the time of the offense is not a school
for purposes of the drug-free zone section relied upon in this case, unless its non-use is
temporary, such as for a recess or holiday.




                                                 9
       In reaching the conclusion that the jury could have reasonably determined that the
building in question was a school, the majority relies upon the opinions in Young v. State, 14
S.W.3d 748, 754 (Tex. Crim. App. 2000); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010); Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008); and Beardsley v.
State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).              I find all of these cases to be
distinguishable.
       In Young, the court held that the evidence was sufficient to show that the location in
question was near a school where two officers testified that the premises in question was a school
and a map was presented showing that the offense was committed near a school. Young, 14
S.W.3d at 753–54. While, as noted by the majority, the Young court held that the name of the
premises alone might be sufficient to create a presumption that it is a school, in this case the
State presented evidence that rebutted such a presumption by eliciting testimony that the building
was still owned by the school district even though it was not being used “at that moment.” In
Young, no evidence was presented that would show the premises in question was not being used
as a school at the time of the offense.
       The other cases cited are cases that show that we, as the reviewing court, are to defer to
the jury’s credibility and weight determinations. Brooks, 323 S.W.3d at 899; Bartlett, 270
S.W.3d at 150 n.5; Beardsley, 738 S.W.2d at 684. I agree with these courts that we are required
to give such deference to the jury’s verdict. However, the test for determining the sufficiency of
the evidence requires that we not give such deference where, as here, a rational factfinder could
not have made the determination it made beyond a reasonable doubt. Neither Robinson nor the
State developed evidence from which one could reasonably determine whether Franklin Middle
School was a school at the time in question.     Instead, after two officers testified that Franklin
Middle School was a school within the proper distance, a third officer, a police sergeant, testified
that the building was still owned by the school district but was not being used as a school “at that
moment.” This testimony showed that the building, although known as Franklin Middle School
as shown by the testimony of the other two officers, was not in use as a middle school or any
other school at the time of the offense. The State presented no testimony showing that the third
officer was mistaken or that the non-use was temporary. I would suggest that where, as here, the
State presents evidence that appears to clarify the status of the premises as not being a school,
without presenting further evidence showing that the premises is a school, the finder of fact

                                                10
cannot reasonably determine, beyond a reasonable doubt, that the premises is a school. I would
note that Brooks, Bartlett, and Beardsley did not involve a sufficiency of the evidence issue in a
drug-free zone case.
         I agree with the majority’s suggestion that a school need not necessarily be in session at
the time of an offense in order to be a school for the purpose of determining whether an area is a
drug-free zone. However, while this offense occurred on or about December 30, 2009, which
could have been during a holiday period, the officer’s testimony was that the school was not in
use as a school at that time. There was no suggestion that its non-use at the time in question was
because of a school holiday or other recess. I would submit that there is a difference between a
school that is temporarily not in session because of a recess, such as a summer recess, or a
holiday period, and one that is not in use as a school.
         The State appears to suggest in its brief that the jury could reasonably find that the
premises was a school because the definition of “school” in Section 481.134 of the Texas Health
and Safety Code makes no requirement that the school be open. TEX. HEALTH & SAFETY CODE
ANN. § 481.134 (West Supp. 2012). However, I would suggest that a premises formerly used as
a school, but no longer in use as a school, is not a school unless the non-use is shown to be
temporary.          The word “school” has several definitions, including “an institution where
instruction is given, especially to persons under college age” and “a building housing a school.”
See DICTIONARY.COM, http://dictionary.reference.com/browse/school?s=t.                                      Neither of these
definitions appears to include either an institution where instruction is not given or a building
that is not housing a school.
         Because I find that a rational jury could not have determined beyond a reasonable doubt
that the premises in question was a school, I would sustain Robinson’s second issue.




September 27, 2012                                                                JOHN G. HILL
Publish. See TEX. R. APP. P. 47.2(b).                                             JUSTICE
Panel5 consists of: Wright, C.J.,
McCall, J., and Hill.6

         5
           Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
         6
             John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

                                                                 11
