Affirm and Opinion Filed July 29, 2013




                                          S In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                       No. 05-12-00578-CR

                               BILLY CLYDE STELL, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F11-62140-Y

                                MEMORANDUM OPINION
                        Before Justices Moseley, Bridges, and Lang-Miers
                                    Opinion by Justice Bridges
       Appellant Billy Clyde Stell appeals his conviction of attempted burglary of a habitation

and accompanying sentence of 40 years’ imprisonment. In a single issue, appellant contends he

was deprived of his right to effective assistance of counsel under the sixth and fourteenth

amendments to the United States Constitution when the trial court improperly permitted him to

proceed pro se at the outset of his trial. We affirm.

                                           Background

       Appellant was tried for the offense of attempted burglary of a habitation. Prior to the

commencement of jury selection, the record shows the trial judge indicated he had been

informed that appellant wished to represent himself. At that point, the trial judge notified

appellant “[t]here are dangers and disadvantages of self-representation” and informed appellant

of the range of punishment. The trial court also instructed appellant that he “would have to do
all the questioning of the witnesses and make all of the objections if [he] want[s] to represent

[him]self,” and that “[t]he fairest thing for [him] to do would be to allow Mr. Knight1 to

represent [him].” The trial judge further warned appellant “there may be issues that arise in this

case as far as jury instructions” and that if appellant had a lawyer, “he would be much more apt

and able to take care of those issues than [appellant] would.” The trial judge also notified

appellant of jury selection issues.

          After receiving these admonishments, appellant affirmed that he understood and told the

judge: “I’m representing myself.” The trial judge then asked Mr. Knight to remain in the

courtroom as standby counsel. The indictment was then presented, and appellant entered a plea

of not guilty. Standby counsel informed the trial court that appellant was not eligible for

probation.

          The trial court then asked Mr. Knight to present appellant with a document by which he

would waive his right to representation by counsel. The trial court asked Mr. Knight to explain

the document to appellant and have him execute it if he still wished to proceed pro se. The trial

court then signed and granted appellant’s request to represent himself. The trial court indicated

appellant could change his mind and notified appellant that Mr. Knight would remain in the

courtroom to assist him.

          The trial judge then instructed appellant that it would be in his best interest to wear

“suitable civilian clothing,” but that he could continue to wear his jail uniform if he wished.

Appellant did not indicate he wanted to change into civilian clothing.

          Based on the trial judge’s observation of appellant’s “extremely acrimonious and

vituperative behavior,” in particular with regard to Mr. Knight, the judge replaced Mr. Knight

with Mr. Zeke Tyson to serve as standby counsel for appellant.

   1
       Mr. Knight was appellant’s initial appointed counsel.



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           At the commencement of jury selection, the trial judge instructed the prospective jurors

not to hold appellant’s decision to represent himself “against him in any way, shape or form.

He’s presumed to be innocent at all times.” He then notified the prospective jurors that Mr.

Tyson would be serving as standby counsel for appellant. The trial judge further admonished the

jury that they “cannot hold that against him that he is in prison clothing.” The judge again stated

appellant was “presumed innocent at all times unless and until the State of Texas can prove his

guilt, if they can, beyond a reasonable doubt.” Immediately prior to the State’s voir dire

examination, the trial judge once more stated that the prospective jurors should not “hold it

against [appellant] at any time that he is representing himself.”

           The State then conducted its portion of the voir dire examination, and the trial broke for

lunch. Upon returning from lunch, appellant informed the trial court that he no longer wished to

represent himself. Mr. Tyson then agreed to serve as counsel for appellant during the remainder

of the trial.

           At trial, appellant’s mother testified he had a history of drug abuse and had been

diagnosed with schizophrenia. Appellant, who was 38-years old at the time of trial, also testified

about his drug abuse and stated he had been diagnosed with depression, a bipolar disorder, and

schizophrenia.

           The State proved appellant had multiple prior convictions.2 A loss prevention officer

from a Target store also testified appellant was detained for shoplifting a few days prior to this

incident. The jury convicted appellant of attempted burglary of a habitation, enhanced by his two




     2
       Appellant’s prior convictions include theft (1994), terroristic threat (1999), possession of marijuana (2000), possession of a controlled
substance (2 in 2001), theft (2002), burglary (2004), robbery (2009), possession of marijuana (2009), and theft (2009). The record reflects
appellant was represented by counsel in all of these prior cases.



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prior felony convictions,3 and the trial court assessed appellant’s sentence at 40 years’

imprisonment.

                                                                 Analysis

          In a single issue, appellant contends he was deprived of his right to effective assistance of

counsel under the sixth and fourteenth amendments to the United States Constitution when the

trial court improperly permitted him to proceed pro se at the outset of his trial.

          Federal and state law guarantee a criminal defendant the right to the assistance of counsel

as well as the right to waive counsel and represent himself. See U.S. CONST. amend. VI & XIV;

TEX. CONST. art. I, §10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (West 2005) (accused “shall

have right of being heard by himself, counsel, or both”); Faretta v. California, 422 U.S. 806,

818–820 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002). In Faretta, the

U.S. Supreme Court established the independent right of self-representation, in addition to the

previously recognized right to waive the assistance of counsel. Faretta, 422 U.S. 806.

          A defendant may choose to proceed pro se by exercising his right of self-representation.

See, e.g., TEX. CONST. art. 1, § 10 (“[an accused] shall have the right of being heard by

himself”); Faretta, 422 U.S. at 818–820 (1975); Moore v. State, 999 S.W.2d 385, 396 (Tex.

Crim. App. 1999). When the right of self-representation was established in Faretta, the Supreme

Court stated that “[a]lthough a defendant need not himself have the skill and experience of a

lawyer in order to competently and intelligently choose self-representation, he should be made

aware of the dangers and disadvantages of self-representation. . . .” Faretta, 422 U.S. at 835; see

also Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). Once a defendant

asserts his right of self-representation, a trial court is obligated to advise the accused of the



   3
       Appellant was previously convicted of the felony offenses burglary of a building in 2004 and of robbery in 2009.



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dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d 134, 135 (Tex.

Crim. App. 1992); Williams v. State, 774 S.W.2d 703, 705 (Tex. App.—Dallas 1989, pet. ref’d).

       In this case, appellant contends he did not receive the proper admonishments and, “when

the record does not affirmatively show that the defendant was sufficiently admonished as

required by Faretta, it is reversible error, not subject to a harm analysis.” Appellant also cites

this Court to the McQueen decision and argues, when considering a waiver of the right to

counsel, the trial court must: (1) consider the defendant’s age, education and background; (2)

ensure that the waiver is not a result of coercion or mistreatment; and (3) be satisfied the accused

understands the nature of the charges, the consequences of the proceedings, and the practical

meaning of the right he is waiving. See McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir.

1985). Finally, appellant asserts that, because the admonishment was inadequate, appellant’s

waiver to the right to counsel was improper.

       However, we have recently held that, when a trial court appoints standby counsel, the

admonishments are not required. See Newkirk v. State, No. 05-12-00202-CR, 2013 WL 222278,

at *2 (Tex. App.—Dallas Jan. 22, 2013, no pet.) (not designated for publication) (citing Walker

v. State, 962 S.W.2d 124, 126–27 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); Robertson

v. State, 934 S.W.2d 861, 865–66 (Tex. App.—Houston [14th Dist.] 1996, no pet.); Maddox v.

State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1980) (op. on reh’g) (admonishment required only

where defendants represent themselves without assistance of counsel)). In cases where hybrid

representation is allowed or standby counsel is appointed, “no question of waiver of counsel is

involved,” since counsel remains to assist the defendant, and as a result, there is no need to

admonish the defendant of the dangers and disadvantages of self-representation. See Maddox,

613 S.W.2d at 286; Robertson, 934 S.W.2d at 865. Therefore, we conclude appellant’s argument

is without merit.

                                                –5–
            Appellant next contends that his appearance in the courtroom in his jail uniform

subverted his right to a presumption of innocence. But, we have already noted that the trial

judge, outside the presence of the jury and prior to the commencement of trial, instructed

appellant that it would be in his best interest to wear “suitable civilian clothing.” Appellant did

not indicate he wanted to change into civilian clothing. Further, at the outset of trial, the trial

judge twice admonished the jury that appellant was to be presumed innocent and that they

“cannot hold that against him that he is in prison clothing.” Because we generally presume that a

jury follows the instructions given by the trial judge, absent some further showing, it is assumed

the jury followed the judge’s admonishment. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex.

Crim. App. 2009) (law presumes jury will follow trial court’s instruction to disregard). We,

therefore, conclude appellant’s argument regarding the prison clothes is also without merit.

            Finally, appellant argues he was never competent to represent himself and made two

uninformed and prejudicial decisions: (1) the decision to be tried in jail clothes and (2) the

decision to plead not guilty.4 Appellant contends that, because he was “improperly denied the

assistance of counsel at this critical juncture, a new trial is required.”

            In this section of his brief, appellant points us to nothing in the record and cites no

authority to support his proposition. We will not make appellant’s arguments for him. See TEX.

R. APP. P. 38.1(h); Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex. Crim. App. 2000). However, we

do note that a knowing, intelligent, and voluntary waiver of counsel is not evidence of

incompetency. Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999). Furthermore, a

defendant is presumed competent to stand trial and shall be found competent to stand trial unless

proved incompetent by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art.

46B.003(b). Appellant’s claim of mental illness, standing alone, does not establish he was

    4
        Appellant later changed his plea to guilty.



                                                      –6–
incompetent. See Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex. App.—Dallas 1982, pet. ref’d)

(diagnosis of schizophrenia presented no more than a surmise or speculation that defendant was

unable to consult with a reasonable degree of rationality with her attorney); see also Grider v.

State, 69 S.W.3d 681, 684 (Tex. App.—Texarkana 2002, no pet.) (Evidence of mental

impairment alone does not require that a special jury be empaneled where no evidence indicates

that a defendant is incapable of consulting with counsel or understanding the proceedings against

him.) In this case, at the conclusion of evidence, the trial court pronounced appellant mentally

competent. We, therefore, conclude appellant’s final argument is without merit and overrule his

sole issue on appeal.

       Having overruled appellant’s only issue, we affirm the judgment of the trial court.




Do Not Publish                                      /David L. Bridges/
TEX.R.App.P.47                                      DAVID L. BRIDGES
120578F.U05                                         JUSTICE




                                              –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

BILLY CLYDE STELL, Appellant                       On Appeal from the Criminal District Court
                                                   No. 7, Dallas County, Texas
No. 05-12-00578-CR        V.                       Trial Court Cause No. F11-62140-Y.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices Moseley and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 29, 2013




                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE




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