                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00265-CR

ADRIAN CALDERON,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 52nd District Court
                              Coryell County, Texas
                              Trial Court No. 23,372


                          MEMORANDUM OPINION


      In one issue, appellant, Adrian Calderon, challenges his conviction for continuous

sexual abuse of a child younger than fourteen years of age. See TEX. PENAL CODE ANN. §

21.02 (West Supp. 2018). Specifically, Calderon argues that the trial court erroneously

denied his right to self-representation. Because we conclude that Calderon’s request for

self-representation was not timely made, we affirm the judgment of the trial court.
                                    I.     BACKGROUND

        Calderon was charged by indictment with continuous sexual abuse of a child

younger than fourteen years of age. See id. He pleaded “not guilty” to the charged

offense, and this matter proceeded to trial.

        At the conclusion of the evidence, the jury found Calderon guilty of the charged

offense and assessed punishment at life imprisonment in the Institutional Division of the

Texas Department of Criminal Justice. The trial court certified Calderon’s right of appeal,

and this appeal followed.

        On original submission, Calderon’s court-appointed appellate counsel filed a

motion to withdraw from the representation supported by an Anders brief. In his Anders

brief, counsel stated that, after evaluating the record, “he does not believe that the

Appellant has any arguable grounds to advance in this appeal.” After conducting a full

examination of all the proceedings to determine whether the case is wholly frivolous, see

Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); In re

Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008), we concluded that the appeal is

not wholly frivolous. In particular, we disagreed with counsel’s assertion that appellant’s

desire to discharge his retained trial counsel and represent himself after the State rested

does not constitute at least an arguable ground on appeal. Accordingly, we granted

counsel’s motion to withdraw and remanded the matter to the trial court for the

appointment of new counsel to address any arguable meritorious ground for appeal


Calderon v. State                                                                    Page 2
flowing from appellant’s request to discharge retained counsel and represent himself, as

well as any other arguably meritorious ground counsel saw for reversal or modification

of the trial court’s judgment. The trial court appointed new appellate counsel in this

matter, and we have received briefs from both Calderon’s new appellate counsel and the

State.

                                 II.      SELF-REPRESENTATION

         In his sole issue on appeal, Calderon asserts that the trial court erred by denying

his right to self-representation because his request was timely, and because the record

does not show an intent to disrupt or delay the trial. The State counters that Calderon’s

request for self-representation was not unequivocal or timely-made and that the request

was a “calculated attempt” to “disrupt the trial by trying to humiliate, embarrass[,] and

torment [Calderon’s fourteen year old victim].”

A.       The Facts

         The record reflects that the State concluded its case-in-chief by calling the child

victim.    After a very brief cross-examination of the child victim, the State rested.

Following this, defense counsel indicated to the trial court that Calderon disagreed with

the trial strategy of defense counsel.        Specifically, defense counsel mentioned the

following:

         [Defense counsel]:            Okay. Your Honor, yes. There was a series of
                                       questions that my client had prepared that he



Calderon v. State                                                                      Page 3
                                      wanted me to ask of [the child victim].[1] And
                                      under the circumstances and her demeanor, I
                                      felt like in my best judgment and as an attorney
                                      for almost 30 years it was not the thing to do to
                                      ask those questions. I can enter those questions
                                      into the record so that there is a record of what
                                      he wanted me to ask. Because I didn’t ask them,
                                      he wants to fire me, sir, and he does not want
                                      me representing him at this point.

        After questioning both defense counsel and the State, the trial court then

questioned Calderon about whether he wanted to represent himself.                       Calderon

responded as follows:

        THE DEFENDANT:                Yes, sir. I really want to change counsel, sir.

                ....

        THE DEFENDANT:                Your Honor, I don’t want her working on my
                                      case. I’d rather have another lawyer, but if
                                      that’s not possible, Your Honor, if that’s not
                                      possible then I would have to represent myself.
                                      In that case of me representing myself, sir, I
                                      want the witness [the child victim] back in here.

        The trial court allowed a “break” to allow Calderon, his family members, and

defense counsel to “talk a little bit in private” before proceeding on Calderon’s request to

represent himself. After the conference, defense counsel announced the following:

        [Defense counsel]:            Mr. Calderon has stated that he wants to
                                      represent himself from this point forward. I
                                      understand that I will obviously stay in case he
                                      has any legal questions that he needs to ask me.

        1Calderon’s proposed questions were written on a piece of paper and admitted into evidence,
though the child victim was not asked these questions.

Calderon v. State                                                                           Page 4
                                    I believe that’s what the law requires, but I will
                                    not be sitting at counsel table. I will be sitting in
                                    the courtroom. But I will remain here during
                                    the course of the trial.

The State objected and stated:

        [The State]:                Trial court is under no obligation to grant the
                                    defendant’s request at this time. The State
                                    would oppose that request. The defendant has
                                    no legal training that he can point to. I think at
                                    this point, if he persists in wanting to do that,
                                    the Court should strongly admonish him again
                                    as to the possible consequences of that.

        The trial court then began a series of admonishments concerning self-

representation. At the conclusion of the admonishments, Calderon noted: “Sir, I think

I’ll be better off representing myself. As far as I seen—I mean as far as I seen throughout

the whole trial, it seems like the truth is being withheld. I mean, all I want, sir, is—I think

I’ll be better off representing myself.” After the State renewed its objection to Calderon

proceeding pro se, the trial court stated that it “cannot grant the request.”

B.      Applicable Law and Discussion

        We review the denial of a defendant’s request for self-representation for an abuse

of discretion. Lathem v. State, 514 S.W.3d 796, 802 (Tex. App.—Fort Worth 2017, no pet.).

We view the evidence in the light most favorable to the trial court’s ruling, and we imply

any findings of fact supported by the record and necessary to affirm the ruling when the

trial court did not make explicit findings. Id.



Calderon v. State                                                                           Page 5
        The Sixth Amendment to the United States Constitution and Article I, Section 10

of the Texas Constitution provide that a defendant in a criminal trial has the right to

assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. However, this right

to counsel may be waived, and the defendant may choose to represent himself at trial.

Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562 (1975). To

invoke the right to represent himself, the defendant must make a request that is clear and

unequivocal; he must timely assert the request; and he must do so voluntarily,

knowingly, and intelligently. See Lathem, 514 S.W.3d at 802-03. The request must be

unconditional and must not be a calculated attempt to disrupt, subvert, obstruct, or delay

the orderly procedure of the courts or to interfere with the fair administration of justice.

Id. at 803. And while the exercise of this right may cause some inconvenience and

possibly some disruption at trial, as long as it is not a calculated obstruction, the delay

cannot deprive the accused of the right once properly asserted. Id.

        With regard to the timeliness factor, the Court of Criminal Appeals has held that

a request for self-representation is timely if it is made before the jury was impaneled. See

McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997) (“An accused’s right to self-

representation must be asserted in a timely manner, namely, before the jury is

impaneled.”); Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); Blankenship v.

State, 673 S.W.2d 578, 585 (Tex. Crim. App. 1984); see also Lathem, 514 S.W.3d at 803;

Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); cf.


Calderon v. State                                                                     Page 6
Johnson v. State, 676 S.W.2d 416, 420 (Tex. Crim. App. 1984) (concluding that a request for

self-representation was timely when it was made after the jury was impaneled but before

the reading of the indictment and before the presentation of any evidence by the State).

Here, Calderon did not assert his right to self-representation until after the State rested

its case-in-chief—much later than the impaneling of the jury and, to the extent it is

relevant, the reading of the indictment and the presentation of the State’s evidence.

Accordingly, we cannot say that Calderon timely asserted his right to self-representation.

See McDuff, 939 S.W.2d at 619; Ex parte Winton, 837 S.W.2d at 135; Blankenship, 673 S.W.2d

at 585; Lathem, 514 S.W.3d at 803; Birdwell, 10 S.W.3d at 77.

        Despite the foregoing, Calderon invites us to ignore the timeliness requirement

because there is no solid rationale for the rule, and because the State cannot demonstrate

that his self-representation would have interfered with the trial process. However, given

that we are an intermediate appellate court and are bound to follow the precedent of the

Court of Criminal Appeals, we are not inclined to adopt Calderon’s argument regarding

the timeliness factor. See State v. Delay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006)

(“As an intermediate appellate court, we lack the authority to overrule an opinion of the

court of criminal appeals.”), aff’d sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim.

App. 2007); McKinney v. State, 177 S.W.3d 186, 192 (Tex. App.—Houston [1st Dist.] 2005),

aff’d, 207 S.W.3d 366 (Tex. Crim. App. 2006) (stating that an intermediate appellate court

must follow binding precedent of the Court of Criminal Appeals); State v. Stevenson, 993


Calderon v. State                                                                    Page 7
S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.) (“Because a decision of the court

of criminal appeals is binding precedent, we are compelled to comply with its dictates.”).

This is an argument best made in the Court of Criminal Appeals. Accordingly, we cannot

say that the trial court abused its discretion by denying Calderon’s untimely request for

self-representation. See Latham, 514 S.W.3d at 802. We overrule Calderon’s sole issue on

appeal.

                                     III.   CONCLUSION

        We affirm the judgment of the trial court.




                                                 JOHN E. NEILL
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed February 27, 2019
Do not publish
[CR25]




Calderon v. State                                                                   Page 8
