Opinion issued May 7, 2020.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-19-00301-CR
                           ———————————
                  KHANCHANAT PHANKHAO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1498433


                         MEMORANDUM OPINION

      Khanchanat Phankhao was convicted of aggravated sexual assault of a child

and sentenced to confinement for life. See TEX. PENAL CODE § 22.021(a)(1)(B)(i).

In two issues, Phankhao contends that (1) there is legally insufficient evidence to
support his conviction and (2) the trial court abused its discretion in allowing him

to waive his right to counsel and represent himself pro se at trial.

      We affirm.

                                Factual Background

      This is a sexual assault case in which the defendant, Khanchanat Phankhao,

was convicted for having sexual intercourse with his friend’s minor daughter. The

following facts are undisputed.

Phankhao becomes friends with Jane’s family

      In 2011, Lamoune Douangdara moved from Laos to the United States with

her twin boys and her daughter, the complainant, Jane1. They eventually settled in

Houston, Texas, where Douangdara began working at an electronics manufacturing

plant. There, she met Phankhao, another immigrant from Southeast Asia, and the

two became friends.

      Over the years, Phankhao would often come over to Douangdara’s house to

visit her and her children. When Phankhao would visit, Jane always seemed very

happy to see him, and she eventually began to act like she was in love with him. At

some point, Phankhao and Jane began talking at night over the phone. Their

conversations would often last for hours.



1
      To protect her privacy and for ease of reading, we refer to the complainant by the
      pseudonym Jane.
                                            2
Jane admits to her mother that Phankhao had sex with her

      One night in 2015, Douangdara discovered that Jane, then 13 years old, had

sneaked out of the house. Douangdara stayed up so that she could confront Jane

when she returned. Early that following morning, Douangdara observed Phankhao

dropping off Jane at a stop sign near their house. When Jane entered the house,

Douangdara asked her where she had been, and Jane stated that she had gone for a

walk. But upon further questioning, Jane admitted that she had been with

Phankhao and that they had had sex.

A sexual assault examination, forensic interview, and analysis of semen
recovered from Jane’s body corroborate Jane’s outcry

      Douangdara called the police, who instructed her to take Jane to Texas

Children’s Hospital for a sexual assault examination. At the hospital, Jane was

examined by sexual assault nurse examiner A. Diaz. During the examination, Diaz

questioned Jane about the incident, and Jane admitted that she had sexual

intercourse with Phankhao. Diaz found Jane to be credible. Diaz then collected

vaginal and anal swabs from Jane, which were submitted to the Harris County

Institute of Forensic Sciences for DNA analysis.

      After her sexual assault examination, Jane was taken to the Children’s

Assessment Center, where she spoke with forensic interviewer A. Diop. Jane told

Diop that she was in a relationship with Phankhao and that the two had sexual

intercourse the night she sneaked out. Like Diaz, Diop found Jane to be credible.
                                         3
      Meanwhile, Harris County Sheriff’s Office Investigator J. Craig obtained

and executed a search warrant for a sample of Phankhao’s saliva to compare with

the DNA collected from the swabs of Jane. The analysis detected semen on the

vaginal and anal swabs obtained from Jane. The DNA profile from the semen was

then compared to the DNA profile from the swabs of Phankhao. Phankhao could

not be excluded as a possible source of the DNA on the vaginal and anal swabs.

Based on the FBI’s 2015 Amended Population Database, the profile obtained from

the vaginal and anal swabs is expected to occur in approximately 1 in 350

sextillion Caucasians, 1 in 376 sextillion African Americans, and 1 in 142

sextillion Hispanics. The profile is expected to occur in other ethnicities with

similar frequency.

      Phankhao was later interviewed by A. Vera, an investigator with the Harris

County Sheriff’s Office. Phankhao initially denied knowing Jane’s name, but he

eventually acknowledged that he was a friend of Douangdara and described his

relationship with Jane as that of a father-figure. Phankhao denied having

intercourse or other sexual contact with Jane. He stated that his DNA should not be

on her clothing.




                                        4
                                Procedural History

Phankhao is indicted and appointed counsel, but then requests that he be
permitted to represent himself pro se

       Phankhao was indicted for aggravated sexual assault of a child under 14

years of age. See id. Spencer Graham was appointed as his attorney. Shortly after

the appointment, Phankhao filed a motion to substitute Wilvin Carter as his

attorney, which the trial court granted. Shortly after that, Carter filed a motion to

withdraw. The trial court granted Carter’s motion and appointed public defender

Jane Vara as Phankhao’s attorney. At some point, Phankhao informed Vara that he

wanted to represent himself pro se, and Vara scheduled a Faretta hearing.2

After two hearings, the trial judge permits Phankhao to waive his right to
counsel and proceed pro se

      At the first hearing, the trial judge asked Phankhao why he wanted to

represent himself pro se. Phankhao responded that he knew “a little bit more about

what happened” than his attorney. The trial judge then explained to Phankhao that

if he represented himself, he would not be allowed to “just get up and just talk

about what happened.” Instead, the trial judge explained, he would have to follow

the rules of evidence and procedure.

      The trial judge asked Phankhao whether he had any prior experience

representing himself in court, and Phankhao responded that he did not. The trial

2
      Named after the seminal Supreme Court opinion issued in Faretta v. California,
      422 U.S. 806 (1975).
                                         5
judge asked Phankhao whether he understood the charges filed against him, and

Phankhao responded that he did not. The trial judge asked Phankhao whether he

knew the range of punishment, and Phankhao replied that he did, but then gave an

incorrect range, stating that it was 25 to 99 years, when it was actually 5 to 99

years or life. See id. § 12.32(a). The trial judge asked Phankhao what was the

purpose of voir dire and the opening statement. Phankhao responded that the

purpose of voir dire was “to show evidence to the jury [and] let them know what

can be presented and what cannot be presented” and that the purpose of an opening

statement was to “show cause.” The trial judge then asked Phankhao’s attorney

whether there were any “communication problems” between her and Phankhao.

Phankhao’s attorney replied that there was “no language barrier . . . at all” but that

Phankhao emailed her “a lot” and only came to her office “some.”

      At the end of the hearing, the trial judge denied Phankhao’s motion. But

Phankhao continued to request that he be permitted to represent himself pro se. At

the trial judge’s request, Vara and the State filed briefs on the issue. The briefs

emphasized that (1) Phankhao had a constitutional right to represent himself pro se,

(2) Phankhao’s lack of legal acumen was not a proper ground for denying his

request, and (3) a violation of his right to self-representaiton would be a structural

error not subject to harm analysis. Vara then scheduled a second Faretta hearing.




                                          6
      The trial judge began the second hearing by inquiring into Phankhao’s

background, age, experience, and education. Phankhao testified that he was 40

years old and currently unemployed but had previously worked as an electrical

engineer and realtor. Phankhao further testified that he had an associate’s degree in

electrical engineering and a real estate license. Finally, Phankhao testified that he

had no prior legal experience and no legal background.

      The trial judge then admonished Phankhao of the dangers and disadvantages

of self-representation. The trial judge told Phankhao that if he represented himself

pro se and was found guilty, he would “suffer the consequences,” including a

prison sentence of up to 99 years and a fine of up to $10,000. See id. § 12.32. The

trial judge explained that Phankhao would not be “allowed to get up and ramble

and talk and tell [his] side of the story[,]” which, the trial judge noted, seemed to

be what Phankhao wanted to do. Instead, the trial judge explained, Phankhao

would “be held to the same standard” as an attorney and would therefore have to

follow the rules of evidence and procedure. The trial judge emphasized that

Phankhao’s attorney knew these rules and would thus be able to properly present

evidence and respond to objections on Phankhao’s behalf. The trial judge said that

she could not think of any advantage to Phankhao representing himself pro se, save

perhaps not incurring attorney’s fees.




                                         7
       The trial judge then asked Phankhao whether he understood that if he

represented himself pro se, he would be waiving his right to have an attorney

present his defense in compliance with the rules of evidence and procedure.

Phankhao responded that he did. The trial judge then asked Phankhao whether he

still wanted to waive his right to counsel and represent himself pro se. Phankhao

responded that he did.

       At the end of the second hearing, the trial judge granted Phankhao’s motion.

Vara withdrew as Phankhao’s attorney, and Phankhao proceeded to represent

himself pro se.

Phankhao is tried and convicted

       When the case went to trial, the State presented testimony from Douangdara,

Diaz, Craig, Diop, and Vera. The State also presented testimony from Dustin

Foley, the analyst who prepared the report comparing the DNA profile from semen

found on Jane to the DNA profile from the cheek swabs obtained from Phankhao.

Phankhao did not present any witnesses or evidence of his own. Jane did not

testify.

       The jury found Phankhao guilty and assessed his punishment at confinement

for life. The trial judge entered judgment in accordance with the jury’s verdict.

Phankhao was appointed appellate counsel, and he appealed.




                                         8
                                     Legal Sufficiency

      We begin with Phankhao’s second issue, in which he contends that there is

legally insufficient evidence to support his conviction for aggravated sexual

assault. We address the legal-sufficiency issue first because, if sustained, it would

result in an acquittal, whereas Phankhao’s first issue, involving his waiver of the

right to counsel, would, if sustained, result in a new trial.

A.    Applicable law and standard of review

      Under the Penal Code, a defendant commits aggravated sexual assault if he

intentionally or knowingly causes the sexual organ of a child under 14 years of age

to contact the sexual organ of the defendant. See id. § 22.021(a)(1)(B)(iii), (2)(b).

We must review the evidence in the light most favorable to the verdict and ask

whether any rational trier of fact could have found beyond a reasonable doubt that

Phankhao caused Jane’s sexual organ to contact his sexual organ while Jane was

younger than 14 years of age. Fernandez v. State, 479 S.W.3d 835, 837–38 (Tex.

Crim. App. 2016). If a rational factfinder could have so found, we will not disturb

the verdict on appeal. Id. at 838.

B.    Analysis

      At trial, the State presented testimony from: (1) Jane’s mother, who testified

that Jane admitted to her that she had sexual intercourse with Phankhao when she

was 13 years old; (2) the sexual assault nurse examiner who examined Jane, who


                                             9
testified that Jane admitted to her that she had sexual intercourse with Phankhao

and that she found Jane to be credible; (3) the forensic interviewer who

interviewed Jane, who likewise testified that Jane admitted to her that she had

sexual intercourse with Phankhao and that she found Jane to be credible; and (4)

Foley, the DNA analyst, who authenticated the report prepared by the Harris

County Institute of Forensic Sciences and summarized and explained the report’s

findings and conclusions from the analysis and comparison of the swabs taken

from Jane and Phankhao.

      In summarizing the report’s findings, Foley testified that semen was found

on the vaginal and anal swabs obtained from Jane. Foley further testified that the

DNA profile obtained from the sperm fraction of the vaginal and anal swabs were

consistent with a single-source male and that Phankhao could not be excluded as a

possible source. Foley testified that the profile obtained from the vaginal and anal

swabs is expected to occur in approximately 1 in 350 sextillion Caucasians, 1 in

376 sextillion African Americans, and 1 in 142 sextillion Hispanics. Foley

explained that the profile is expected to occur in other ethnicities with similar

frequency.

      Phankhao did not present any witnesses or testimony of his own, and he did

not elicit any rebuttal testimony on cross-examination. The State’s evidence was

thus uncontested. Phankhao nevertheless argues that the evidence is legally


                                        10
insufficient to support his conviction because the testimony of the State’s witnesses

was not credible. We disagree. It is well-established that “the credibility of a

witness is an issue for the jury to decide.” Solomon v. State, 49 S.W.3d 356, 362

(Tex. Crim. App. 2001); see Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim.

App. 2018) (reviewing court is “required to defer to the jury’s credibility and

weight determinations”). And the jury found the witnesses credible.

      The testimony, moreover, was corroborated by the semen recovered from

Jane’s anus and vagina and the results of the DNA analysis, which indicated the

semen came from Phankhao.

      Viewing the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have found beyond a reasonable doubt that Phankhao

caused Jane’s sexual organ to contact his sexual organ while Jane was younger

than 14 years of age.

      We overrule Phankhao’s second issue.

                           Waiver of Right to Counsel

      In his first issue, Phankhao contends that the trial court abused its discretion

in allowing him to waive his right to counsel and exercise his right to self-

representation. Phankhao argues that his waiver was not knowingly and

intelligently made because the trial court failed to properly admonish him of the

dangers and disadvantages of self-representation.


                                         11
A.    Applicable law and standard of review

      In all criminal prosecutions, the defendant has the right to assistance of

counsel. U.S. CONST. amend. VI; TEX. CODE CRIM. PROC. art. 1.051(a). The

defendant likewise has the reciprocal right to self-representation. TEX. CODE CRIM.

PROC. art. 1.051(f); Faretta v. California, 422 U.S. 806, 821 (1975). The right to

self-representation extends to all criminal prosecutions, even prosecutions for

capital murder in which the State seeks the death penalty. See Moore v. State, 999

S.W.2d 385, 396 (Tex. Crim. App. 1999).

      To exercise the right to self-representation, the defendant must waive the

right to assistance of counsel. Johnson v. State, 760 S.W.2d 277, 280 (Tex. Crim.

App. 1988) (Onion, J., concurring in part and dissenting in part) (“In the wake

of Faretta it has been the new unanimous view that the assertion by an accused of

his right to self-representation is dependent, in part, upon a waiver of his right to

counsel.”); see also Hathorn v. State, 848 S.W.2d 101, 123 (Tex. Crim. App. 1992)

(“[A]n accused’s right to proceed pro se does not attach until he clearly and

unequivocally asserts it.”).

      To be constitutionally effective, the waiver must be made (1) competently,

(2) knowingly and intelligently, and (3) voluntarily. Moore, 999 S.W.2d at 396;

Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997). If the defendant

satisfies these three elements, the trial court must allow the defendant to waive his


                                         12
right to counsel and proceed pro se, see Hathorn, 848 S.W.2d at 123, even if the

defendant lacks an understanding of the law and is not otherwise qualified to

represent himself, see Godinez v. Moran, 509 U.S. 389, 400 (1993) (“[T]he

defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the determination

whether he is competent to waive his right to counsel.”); Blankenship v. State, 673

S.W.2d 578, 584 (Tex. Crim. App. 1984) (holding that defendant’s failure to

answer trial court’s legal questions correctly did not constitute proper ground for

denying defendant’s request to waive counsel).

      The issue here concerns the second element of the waiver test—whether

Phankhao’s waiver was knowingly and intelligently made. “The decision to waive

counsel and proceed pro se is made ‘knowingly and intelligently’ if it is made with

a full understanding of the right to counsel, which is being abandoned, as well as

the dangers and disadvantages of self-representation.” Moore, 999 S.W.2d at 396

n.5. To ensure a defendant’s waiver is knowing and intelligent, the trial judge must

question and admonish the defendant about his request. Blankenship, 673 S.W.2d

at 583.

      In questioning the defendant, the trial judge need not follow a particular

formula or script but should generally inquire into the defendant’s background,

age, experience, and education, unless these factors are otherwise apparent from

the record. See Johnson, 760 S.W.2d at 278–79.


                                        13
       In admonishing the defendant, the trial judge must generally warn the

defendant “that there are technical rules of evidence and procedure, and he will not

be granted any special consideration solely because he asserted his pro se rights.”

Sitawisha v. State, 496 S.W.3d 826, 831 (Tex. App.—Houston [1st Dist.] 2016,

pet. ref’d) (quoting Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App.

2008)). However, the trial judge has no duty to provide “more detailed

admonitions about specific procedures,” such as “the method for invoking the right

to expert assistance at the State’s expense, or when that right might arise.”

Sitawisha, 496 S.W.3d at 831. Nor must the trial judge advise the defendant of

“possible defenses or mitigating circumstances before the right can be exercised.”

Fletcher v. State, 474 S.W.3d 389, 399 (Tex. App.—Houston [14th Dist.] 2015,

pet. ref’d).

       We review the trial judge’s ruling that the defendant’s waiver was

knowingly and intelligently made for an abuse of discretion. See Rodriguez v.

State, 491 S.W.3d 18, 28 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).

B.     Analysis

       At the second hearing, the trial judge inquired into Phankhao’s background,

age, experience, and education. Phankhao testified that he was 40 years old and

currently unemployed but that he had previously worked as an electrical engineer




                                        14
and a realtor. He further testified that had an associate’s degree in electrical

engineering and a real estate license but no legal education or experience.

      The trial judge then admonished Phankhao about the dangers and

disadvantages of self-representation. The trial judge told Phankhao that if he

represented himself pro se and was found guilty, he would “suffer the

consequences,” including a prison sentence of up to 99 years and a fine of up to

$10,000.3 The trial judge explained that Phankhao would not be “allowed to get up

and ramble and talk and tell [his] side of the story[,]” which, the trial judge noted,

seemed to be what Phankhao wanted to do. Instead, the trial judge explained,

Phankhao would “be held to the same standard” as an attorney and would thus be

required to comply with the rules of evidence and procedure. The trial judge

emphasized that Phankhao’s attorney knew these rules and would thus be able to

properly present evidence and respond to objections on Phankhao’s behalf. The

trial judge said that she could not think of any advantage to Phankhao representing

himself pro se, save perhaps not incurring attorney’s fees.

      The trial judge then asked Phankhao whether he understood that if he

represented himself pro se, he would be waiving his right to have an attorney


3
      We note that the applicable punishment range was five to 99 years’ confinement
      or confinement for life. See TEX. PENAL CODE § 12.32(a). While the trial judge
      failed to inform Phankhao that he faced the possibility of confinement for life if
      convicted, we do not believe that affected the sufficiency of her admonishments.

                                          15
present his defense in compliance with the rules of evidence and procedure.

Phankhao responded that he did. The trial judge then asked Phankhao whether he

still wanted to waive his right to counsel and represent himself pro se. Phankhao

responded that he did.

      These admonishments satisfy the requirement that the trial judge generally

warn the defendant that “there are technical rules of evidence and procedure” and

he “will not be granted any special consideration solely because he asserted his pro

se rights.” Sitawisha, 496 S.W.3d at 831 (quoting Williams, 252 S.W.3d at 356).

Phankhao nevertheless argues that his waiver was not knowingly and intelligently

made because the trial judge failed to provide several “critical admonishments,”

including “those covering the specific charge he faced as well as the possible

mitigating circumstances and defenses.”

      The record reflects that the trial judge did not advise Phankhao of the

charges against him at the second hearing. Phankhao argues that this is significant

because he had stated at the first hearing that he did not understand the pending

charges. For this reason, Phankhao contends that the trial judge had a duty to

confirm he understood the charges against him before permitting him to waive his

right to counsel. Because the trial judge failed to do so, Phankhao argues that his

waiver was not knowing and intelligent. We disagree.




                                          16
      Although the trial judge failed to confirm that Phankhao understood the

charges against him at the second hearing, the record nevertheless reflects that

Phankhao was informed of and represented he understood the charges on numerous

other occasions, including at (1) his initial appearance, (2) a hearing on the State’s

motion to revoke bond, and (3) his arraignment. Given Phankhao’s statements at

the first hearing, it would have been prudent for the trial judge to have verified

Phankhao understood the pending charges at the second hearing. But, in light of

the record as a whole, the trial judge was not required to do so before finding

Phankhao’s waiver knowing and intelligent and permitting him to waive his right

to counsel.

      We further disagree with Phankhao’s contention that the trial judge had a

duty to inform him of possible defenses and mitigating circumstances. Phankhao

has not pointed us to any possible defenses or mitigating circumstances of which

the trial judge failed to advise him. The caselaw makes clear that “no formulaic

questioning” or “script” is required to establish a knowing and intelligent waiver.

Blankenship, 673 S.W.2d at 583. And neither opinion cited by Phankhao in support

of his contention—the Court of Criminal Appeals’ opinion in Blankenship, 673

S.W.2d at 583–84, and the United States Supreme Court’s plurality opinion in Von

Moltke v. Gillies, 332 U.S. 708, 724–25 (1948)—actually held that the trial judge’s

admonitions were inadequate due to the judge’s failure to inform the defendant of


                                         17
possible defenses and mitigating circumstances. Rather, Blankenship held that the

trial judge had erred by forcing counsel on a defendant on the ground that he

lacked understanding of the law and was not qualified to represent himself. 673

S.W.2d at 584. Von Moltke involved an unrepresented German defendant who

pleaded guilty to espionage after routine questioning by the trial judge and without

being advised at all of the consequences of her plea (including a possible death

sentence). 332 U.S. at 709–10. In addition, the defendant in Von Moltke did not

assert a right to self-representation. Faretta does not require a trial judge to inform

a defendant of possible defenses or mitigating circumstances before that right can

be exercised.

      Phankhao argues that the trial judge should have provided more detailed

admonitions in this particular case due to the gravity of the offense. We disagree.

The Court of Criminal Appeals has held that similar admonitions were adequate in

cases where the defendant was charged with a first-degree felony, including capital

murder. Collier, 959 S.W.2d at 626 (holding that defendant in prosecution for

capital murder knowingly and intelligently waived right to counsel when trial

judge (1) explained to defendant that there were technical rules of evidence and

procedure that applied at trial, that he would not be granted any special

consideration with respect to these rules, and that as a result he might be

disadvantaged both at trial and in any appeal that might follow, (2) explained


                                          18
charges against defendant and possible range of punishment, and (3) tried

repeatedly to impress upon defendant extreme gravity of his request to proceed pro

se and likelihood that it was a serious mistake).

      Phankhao analogizes this case to Buster v. State, in which the court of

appeals held that the trial judge failed to sufficiently admonish the defendant

before allowing him to waive his right to counsel and represent himself pro se. 144

S.W.3d 71, 77–78 (Tex. App.—Tyler 2004, no pet.). In Buster, the record did not

show whether the defendant had been arraigned or advised of the nature of the

charges against him and the statutory offenses included within those charges. The

trial judge did not advise the defendant of the range of allowable punishments. Nor

did the trial judge specifically admonish the defendant that he would not be granted

any relief from the technicalities of the rules of evidence and procedure. 144

S.W.3d at 77–78. Thus, the record wholly failed to show that the defendant had

been properly admonished before waiving his right to counsel. That simply isn’t

the case here. The record affirmatively shows that Phankhao was arraigned and

informed of the charges against him. And, as discussed, the record affirmatively

shows that the trial judge’s admonitions satisfied the requirement that Phankhao be

generally warned that there are technical rules of evidence and procedure and that

he will not be granted any special consideration because he asserted his pro se

rights. Sitawisha, 496 S.W.3d at 831.


                                          19
      We hold that the record supports the trial judge’s finding that Phankhao’s

waiver was knowing and intelligent and that Phankhao has therefore failed to show

the trial judge abused her discretion in allowing him to waive his right to counsel

and exercise his right to self-representation.

      We overrule Phankhao’s first issue.

                                     Conclusion

      We affirm.




                                                 Gordon Goodman
                                                 Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           20
