                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00676-CR

                                          Gary L. BAKER,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR4875
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: April 20, 2016

AFFIRMED

           Gary Lynn Baker was convicted by a jury of three counts of aggravated sexual assault of a

child and one count of indecency with a child by contact. The trial court sentenced Baker to life

in prison on each count pursuant to the mandatory enhancement provisions of section 12.42(c)(2)

of the Texas Penal Code. Baker appeals the judgment, arguing he did not voluntarily and

intelligently waive his right to counsel, the trial court erred by not finding he was incompetent to

represent himself, and the trial court erred by failing to initiate proceedings to determine whether

he was competent to stand trial. We affirm the trial court’s judgment.
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                                          BACKGROUND

       When Baker’s former stepdaughter, A.H., was fifteen, she told her mother, Josefina, that

Baker had repeatedly sexually assaulted her over a period of years when she was younger. A.H.

testified that Baker began assaulting her after he began living with her, her sister, and Josefina in

Galveston, when A.H. was five or six years old. The assaults continued after they moved to San

Antonio when A.H. was in the second grade and they occurred three or four times a week. The

family left San Antonio and moved several places until Baker abandoned them in Las Vegas. They

returned to Galveston, where Josefina gave birth to Baker’s child in April 2004. Josefina and

Baker married later in 2004 and stayed together until sometime in 2006, when Josefina divorced

him. A.H. testified the last time she saw Baker was in the summer of 2006. In 2008, Josefina

married Michael. Witnesses testified that Michael and Baker had grown up together and called

each other brothers. In 2010, Michael adopted A.H. and her two sisters, including Baker’s

biological daughter. The same year, A.H. made her outcry.

       Baker was indicted by a Bexar County grand jury in 2012, charged with three counts of

aggravated assault of a child and one count of indecency with a child by contact, all alleged to

have occurred in Bexar County in 2003. Baker requested and was appointed counsel to represent

him.

       At a pretrial hearing on the Friday before the Monday trial was scheduled to begin, Baker’s

appointed attorney advised the court that Baker wanted him removed as counsel and that Baker

wished to represent himself. The trial judge admonished Baker about his rights, the charges against

him, and the dangers and pitfalls of representing himself. He also questioned Baker to determine

whether Baker understood his rights and the import of waiving his rights. Baker persisted in his

desire to represent himself. The trial court allowed it and appointed standby counsel. The court

advised the parties that jury selection would begin the following Monday and adjourned so that
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Baker could review witness statements and discovery and prepare subpoenas.                 The court

admonished Baker further the following Monday morning and the trial began. The jury found

Baker guilty on all counts. Punishment was tried to the court, and the State introduced evidence

that Baker had been previously convicted of an offense under section 22.011 of the Texas Penal

Code. The trial court therefore imposed a life sentence on each count pursuant to section

12.42(c)(2) of the Penal Code.

       Baker appeals, arguing the trial court erred by failing to conduct an inquiry into his

competence to stand trial, he did not voluntarily and intelligently waive his right to counsel, and

the trial court erred in finding Baker was competent to represent himself.

                                  COMPETENCE TO STAND TRIAL

       Baker contends the trial court violated his rights by failing to conduct an informal inquiry

into his competency. A person is incompetent to stand trial if he does not have sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding or does not

have both a rational and factual understanding of the proceedings against him. TEX. CODE CRIM.

PROC. ANN. art. 46B.003(a) (West 2006); Dusky v. United States, 362 U.S. 402, 402 (1960) (per

curiam).

       A defendant is presumed to be competent to stand trial. See TEX. CODE CRIM. PROC. ANN.

art. 46B.003(b). However, “[i]f evidence suggesting the defendant may be incompetent to stand

trial comes to the attention of the court, the court on its own motion shall suggest that the defendant

may be incompetent to stand trial.” TEX. CODE CRIM. PROC. ANN. art. 46B.004(b) (West Supp.

2014). When there is a “suggestion” of incompetency to stand trial, the trial court must conduct

an “informal inquiry” to determine whether evidence exists to justify a formal competency trial.

Id. art. 46B.004(c); Turner v. State, 422 S.W.3d 676, 691-93 (Tex. Crim. App. 2013). This

suggestion of incompetency “is the threshold requirement for an informal inquiry . . . and may
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consist solely of a representation from any credible source that the defendant may be incompetent.”

TEX. CODE CRIM. PROC. ANN. art. 46B.004(c–1). “A further evidentiary showing is not required

to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency

of the defendant.” Id.

       We review the trial court’s decision not to conduct an informal competency inquiry for

abuse of discretion. Jackson v. State, 391 S.W.3d 139, 141 (Tex. Crim. App. 2012); Montoya v.

State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).            The trial court’s assessment of the

defendant’s ability to rationally and factually understand the proceedings and to assist counsel is

“entitled to great deference” by the reviewing court. McDaniel v. State, 98 S.W.3d 704, 713 (Tex.

Crim. App. 2003). We do not substitute our judgment for that of the trial court; rather, we

determine whether the trial court’s decision was arbitrary or unreasonable. See Montoya, 291

S.W.3d at 426 (noting that trial court is “in a better position to determine whether [the defendant]

was presently competent”).

       Baker argues that statements he made during the trial court’s admonishments and his

performance during the trial should have triggered an informal inquiry into his competence to stand

trial. Baker first points to the pretrial hearing, when the judge was admonishing him about the

dangers of self-representation and questioning him to ensure he understood his rights. The judge

asked Baker whether he had any history of mental disorders, psychiatric treatment, or referrals to

a psychiatric hospital. Baker responded that he “was in Rusk one time” because he had attempted

suicide. Baker told the court he had not been found incompetent. Baker stated he had been in the

hospital for about a month, then he appeared before a judge and was allowed to leave. The trial

court concluded it had been a civil commitment. Throughout the pretrial hearing, Baker was

reasonably articulate and communicated appropriately with the court. Nothing in the record

suggested that Baker did not understand exactly what he was charged with. He also made
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statements suggesting he fully understood that the State was seeking a mandatory life sentence on

each charge. Baker did not display any inappropriate behavior and there was no suggestion that

Baker had suffered any recent mental illness. The court asked Baker’s appointed counsel, who

was standby counsel during trial, whether he had any concerns about Baker’s competency or

competency to represent himself, and counsel responded that he did not have any such concerns.

       The relevant time frame for determining competence is at the time of the proceedings.

Jackson, 391 S.W.3d at 143. A person’s history of depression or mental illness or a past suicide

attempt does not suggest incompetence and trigger an informal inquiry unless there is a suggestion

that it impacts the defendant’s present ability to understand the proceedings and communicate with

counsel. See id. (holding evidence of past emotional issues did not trigger informal inquiry);

Montoya, 291 S.W.3d at 425 (stating “[w]e have held that instances of depression are not an

indication of incompetency and that past mental-health issues raise the issue of incompetency only

if there is evidence of recent severe mental illness, at least moderate retardation, or bizarre acts by

the defendant”); Hobbs v. State, 359 S.W.3d 919, 925 (Tex. App.—Houston [14th Dist.] 2012, no

pet.) (holding that “[n]either appellant’s history of mental illness nor the fact that appellant may

have been on psychiatric medication is sufficient to warrant a competency inquiry absent evidence

of a present inability to communicate with his attorney or understand the proceedings”); see also

Townsend v. State, 949 S.W.2d 24, 27 (Tex. App.—San Antonio 1997, no pet.) (concluding

suicidal tendencies and depression did not raise bona fide doubt about defendant’s competency).

Here, there is no suggestion in the record, from Baker’s statements or conduct or from any other

source, that at the time of trial he suffered any current mental illness or depression or that his past

commitment affected his abilities to understand the proceedings, consult with counsel, or conduct

his defense.



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       Baker next argues that his incompetence was suggested by his defense strategy, which

appellate counsel characterizes as a “delusional” conspiracy theory. He points to his opening

statement, in which Baker asserted the charges were brought against him because another man

wanted to adopt Baker’s child. He also points to Baker’s examination of the witnesses that

appeared to focus on collateral issues and not on the charges against him.

       The State’s witnesses were the complainant, an apparently credible nineteen-year-old

college student, and her mother, Josefina. From the record, it appears Baker’s strategy was to

discredit their testimony by showing them to have made inconsistent statements and to have faulty

memory, and to provide evidence of a motive for them to have fabricated the charges. Baker was

somewhat successful impeaching the witnesses on collateral matters and in establishing that their

memory regarding certain details was incorrect. He also elicited testimony that the outcry was

made during the time period that Josefina’s new husband was trying to adopt Baker’s biological

child and testimony that the complainant did not want Baker to have custody of that child. This

evidence furthered Baker’s theory that the complainant and her mother fabricated the charges so

that Baker would lose his parental rights and the other man could adopt his child.

       It was not delusional for Baker to believe that the jury would find the complainant

sympathetic and would be inclined to believe the State’s witnesses. It was also not delusional for

him to believe that he needed to challenge their credibility and to provide the jury with some

explanation for why his ex-wife and stepdaughter would fabricate the charges. Although Baker’s

strategy was not successful, it was based in fact and was not delusional. Guerrero v. State, 271

S.W.3d 309, 316 (Tex. App.—San Antonio 2008) (holding that generally “unusual, misguided,

and legally incorrect” approach to defense did not suggest incompetence where strategy showed

“a logical, not a confused, thought process”), aff’d in part and rev’d in part on other grounds, 305

S.W.3d 546 (Tex. Crim. App. 2009).
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       Finally, we disagree with Baker’s assertion that his conduct at the trial suggested legal

incompetence. Although Baker spoke little during voir dire, the trial judge and the prosecutor

conducted extensive voir dire. The record reflects that Baker understood when a prospective juror

should be stricken for cause, he asked several appropriate clarifying questions, he was coherent,

and his communication with the prospective jurors was effective. During the State’s direct

examination, Baker made appropriate evidentiary objections. During his cross-examination of the

State’s witnesses, Baker’s questions were clear. When the witnesses refused to answer or became

argumentative, Baker persisted or asked the trial court to instruct the witness. He effectively

impeached the witnesses on several details. Baker did not engage in long rambling discourses and

did not make any inappropriate outbursts or engage in bizarre or disruptive behavior. In short,

there was no suggestion from any source during the trial that Baker did not have a rational and

factual understanding of the proceedings against him or that he did not possess the present ability

to consult with counsel with a reasonable degree of rational understanding or conduct his own

defense. The trial court therefore did not abuse its discretion by failing to conduct an informal

inquiry into Baker’s competence to stand trial.

                                WAIVER OF RIGHT TO COUNSEL

       Baker next argues that his waiver of counsel was invalid. A criminal defendant has a right

under the Sixth Amendment to the United States Constitution to prosecute his own legal defense.

Faretta v. California, 422 U.S. 806, 818-32 (1975). However, before the trial court may allow a

defendant to represent himself, the defendant must knowingly, intelligently, and voluntarily waive

his constitutional right to counsel. Id. at 835; Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim.

App. 1997). 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 that is being abandoned, as well as



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the dangers and disadvantages of self-representation. Collier, 959 S.W.2d at 626. “The decision

is made ‘voluntarily’ if it is uncoerced.” Id.

       When a defendant unequivocally asserts his right to self-representation, the trial court must

make him “aware of the dangers and disadvantages of self-representation, so that the record will

establish that ‘he knows what he is doing and his choice is made with eyes open.’” Faretta, 422

U.S. at 835 (citations omitted). “[T]he trial judge must inform 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.’” Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim.

App. 2008) (quoting Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988)). No

formulaic questioning or particular script is required in order for a trial court to assure itself that

an accused who has asserted his right to self-representation does so with eyes open. Burgess v.

State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). The trial judge may question the defendant

about matters such as age, education, background, or previous mental history, but has no duty to

do so. Williams, 252 S.W.3d at 356. In assessing whether the waiver was effective, we consider

the totality of the circumstances. Id.

       Baker asserted his desire to represent himself at a hearing on the Friday before trial was

scheduled to begin. The trial judge “heartily” discouraged Baker from representing himself and

told Baker he thought it would be a mistake. He then asked Baker a series of questions to determine

whether his waiver of counsel was made knowingly and intelligently. The judge asked Baker his

age and about his education and work experience. Baker said he was sixty-two years old, had

attended some college, but not received a degree, and that he worked as a project engineer,

managing large construction projects. Baker told the court he had participated in a criminal case

before as a defendant, but had not represented himself or gone through a trial. Baker told the court

he had once been committed to Rusk State Hospital after attempting suicide, but there had not been
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a finding that he was incompetent and he was released after a month. Baker stated he had no

physical issues that would prevent him from participating in the trial. He understood that he was

constitutionally entitled to representation by an appointed attorney. The trial judge made sure that

Baker understood what the charges against him were and the potential punishment in the event the

jury found him guilty. Baker expressed his understanding of the charges and that the State was

seeking a mandatory life sentence based on the enhancement allegation.

       The judge told Baker they would begin selecting a jury early on Monday morning. Baker

asked whether he would have more access to the law library in the county jail, and the judge

responded that library access was controlled by the sheriff, not the court, and that Baker would

need to determine for himself how to make a request for more library time to the sheriff. Baker

also asked if he would be allowed to subpoena witnesses. The judge responded affirmatively, but

told Baker he would need to know how to do so correctly.

       The trial court admonished Baker that, “[D]uring the trial I’m going to have to treat you

just like I would a lawyer so you’re not going to receive any special favors.” Baker responded, “I

understand.” The judge further admonished:

       [Y]ou’re going to have to comply with all the rules of procedure and all the rules
       of evidence. You’ll have to be knowledgeable as to the substantive law and engage
       in and follow all the rules of decorum that a lawyer would have to if they were here.
       So you’re aware of all that?

       ...

       Anybody who represents themselves are losing the right to counsel, including you
       may lose whatever defense you have by not knowing how to preserve it or raise it.
       You may waive any defect in the indictment or the charging instrument. You might
       waive any error in the admission or exclusion of evidence by not knowing how to
       preserve it. You might be convicted on incompetent, irrelevant or inadmissible
       evidence by not knowing how to object. You could be convicted, though innocent,
       simply because you don’t know to raise and establish your defense. You will lose
       appellate issues on -- on appeal, specifically the ineffective assistance of counsel.
       You’re, in fact, giving up any right to effective assistance of counsel by
       representing yourself in the sense that it is necessary to have a lawyer to ensure
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       effective assistance. By doing what you’re doing, you’re waiving your right to
       effective assistance of counsel. You may not know how to object to the Charge of
       the Court and you may get a legally incorrect charge. And you may not know how
       to object to the prosecutor’s arguments if they get out of hand. And you may end
       up having issues with the selection of a fair and impartial jury by not being a lawyer
       and not knowing how to select the jury appropriately.
       Knowing all that you still wish to waive your right to a lawyer and represent
       yourself?

Baker responded, “Yes, sir.” The judge gave Baker an opportunity to ask any questions about the

charges or the rights he was waiving. He then asked Baker if he was persisting in his desire to

waive his rights and represent himself, to which Baker responded, “Correct.”

       Baker does not challenge sufficiency of the trial court’s admonishments. Rather, he argues

his waiver was invalid because it is “obvious” that “Baker did not know what he was doing when

he waived counsel.” To support this assertion, Baker first points to his discomfort in not having

more time to prepare and his lack of knowledge of trial procedures, and what appellate counsel

calls a flawed trial strategy. However, whether a defendant has a technical understanding of trial

procedure and available defenses is not relevant to an assessment of whether he knowingly waived

his right to counsel. Faretta, 422 U.S. at 835; Geeslin v. State, 600 S.W.2d 309, 313 (Tex. Crim.

App. [Panel Op.] 1980); Fletcher v. State, 474 S.W.3d 389, 397-98 (Tex. App.—Houston [14th

Dist.] 2015, pet. ref’d). Baker also suggests that his disclosure that he had once been committed

because of an attempted suicide precluded the trial court from finding he knowingly and

intelligently waived counsel. We disagree. Baker told the court that there had not been a finding

of incompetence and the record does not contain any suggestion that Baker had any recent mental

illness. There is also nothing in the record suggesting that Baker was unable to or did not fully

understand and appreciate the right he was waiving and the consequences of the waiver. Baker

was responsive to questions posed by the court, communicated effectively with the judge, and

repeatedly stated that he understood. Finally, as we explained above, Baker’s trial strategy may


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have been ineffective, but it was not “delusional,” as contended by appellate counsel, and nothing

about it calls into question the validity of Baker’s waiver of his right to counsel.

       We hold that, under the totality of the circumstances, the record supports the trial court’s

conclusion that Baker had sufficient intelligence to demonstrate a capacity to waive his right to

counsel and the ability to appreciate the practical disadvantage he would confront in representing

himself.   The record thus supports the trial court’s determination that Baker’s waiver was

constitutionally effective.

                        BAKER’S COMPETENCE TO REPRESENT HIMSELF

       Baker contends that, even if he was competent to stand trial and validly waived his right to

counsel, the trial court was required to hold a hearing on his competency to represent himself. He

argues the trial court erred by not doing so and by impliedly finding that Baker was competent to

represent himself.

       Baker’s argument is based on the United States Supreme Court’s decision in Indiana v.

Edwards, 554 U.S. 164 (2008). In that case, the trial court twice found Edwards incompetent to

stand trial due to mental illness and committed him to a hospital for evaluation and treatment.

Edwards, 554 U.S. at 167-68. Subsequently, the trial court determined Edwards was competent

to stand trial under the Dusky standard. Id. at 168-69. Edwards requested to represent himself.

Id. The trial court denied the request, finding that Edwards still suffered from schizophrenia and

that, although he was competent to stand trial, he was not competent to defend himself. Id. at 169.

       The Supreme Court reaffirmed that the Sixth and Fourteenth Amendments include a

“constitutional right to proceed without counsel when” a defendant “voluntarily and intelligently

elects to do so.” 554 U.S. at 170 (quoting Faretta, 422 U.S. at 807) (emphasis in original).

However, the Court also acknowledged that the right is not absolute and held that “the Constitution

permits States to insist upon representation by counsel for those competent enough to stand trial
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under Dusky but who still suffer from severe mental illness to the point where they are not

competent to conduct trial proceedings by themselves.” Id. at 177-78. The Court emphasized that

the trial judge is often best able to make decisions about a defendant’s mental capacity beyond

those required by Dusky, “tailored to the individualized circumstances of a particular defendant.”

Id. at 177. The court expressly refused to adopt a specific standard. Id. at 178.

       The Texas Court of Criminal Appeals applied Edwards in Chadwick v. State, 309 S.W.3d

558 (Tex. Crim. App. 2010). Chadwick had been found incompetent to stand trial and committed

to a state hospital. 309 S.W.3d at 560. When he was brought before the trial court after his

competency was restored, Chadwick asserted his right to represent himself. Id. The trial court

denied Chadwick’s request.      Id.   On appeal, Chadwick argued the trial court violated his

constitutional right to self-representation. Because the trial court had limited Chadwick’s right of

self-representation, the court concluded it had impliedly found that, although Chadwick was

competent to stand trial, his “mental illness was severe enough to render him incompetent to

proceed pro se.” Id. at 562. The court held this finding is properly reviewed under the bifurcated

abuse of discretion standard. Id. at 561. The court then concluded that the record supported the

trial court’s implied findings that Chadwick’s mental illness was severe enough to render him

incompetent to represent himself. Id. at 562.

       The Supreme Court’s decision in Edwards decided only that it is permissible for the State

to limit the constitutional right to self-representation of severely mentally ill defendants under

certain circumstances. And, as in Chadwick, the trial court must make appropriate findings before

it can deny or limit a competent defendant’s right to represent himself. However, neither Edwards

nor Chadwick expressly or impliedly impose a requirement of further inquiry on the trial court

where nothing in the record suggests the defendant is suffering from severe mental illness. We

therefore reject Baker’s argument that when a competent-to-stand-trial defendant validly waives
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his right to counsel, the trial court is required to hold an additional hearing to determine if the

defendant is competent to represent himself. See Fletcher v. State, 474 S.W.3d 389, 401 (Tex.

App.—Houston [14th Dist.] 2015, pet. ref’d) (holding that when defendant was competent to stand

trial and had waived right to counsel, “the trial court was not constitutionally required to conduct

a further inquiry regarding appellant’s competence to conduct his own defense”). When nothing

in the record suggests a defendant has severe mental illness or other debilitating condition, the trial

court does not err by allowing a competent defendant who has voluntarily, knowingly, and

intelligently waived his right to counsel to represent himself without conducting any further

inquiry. As we hold above, there is nothing in the record to suggest that Baker was not competent

to stand trial, and his waiver of his right to counsel was competent, voluntary, and intelligent.

There is no suggestion in the record that Baker was mentally ill or that he was incompetent to

represent himself. Accordingly, the trial court did not abuse its discretion by failing to conduct a

further inquiry and did not violate Baker’s rights by allowing him to represent himself.

       We affirm the trial court’s judgment.

                                                    Luz Elena D. Chapa, Justice

Do not publish




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