                             NUMBER 13-07-00260-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


FELICIANO AVALOS, JR.,                                                          Appellant,

                                             v.

THE STATE OF TEXAS,                                                              Appellee.


                   On appeal from the 370th District Court
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez


      Appellant, Feliciano Avalos, Jr., appeals his state-jail felony conviction for theft. See

TEX . PENAL CODE ANN . § 31.03(e)(4)(A) (Vernon Supp. 2008). By two issues, Avalos

contends that the trial court erred by (1) not properly admonishing him of the

disadvantages of self-representation, and (2) denying his request for standby counsel at
trial. Finding no factual basis to support Avalos’s issues, we affirm the trial court’s

judgment.

                                     I. BACKGROUND

      On May 2, 2006, Avalos was indicted for stealing a $2,700 plasma-screen television

from a Sam’s Club store. Avalos initially retained L. Aron Peña, an attorney, to represent

him. At an October 16, 2006 pre-trial hearing, which was attended by Avalos, Peña, and

the State, Avalos announced that he wanted to represent himself.           The following

discussion took place between Avalos, the trial court judge, the Honorable Noe Gonzalez,

Peña, and the State:

      Avalos:       I'm presumed innocent.

      Court:        No. What is your announcement? You have no lawyer?
                    You are proceeding without a lawyer; is that correct?

      Avalos:       Yes, sir, Your Honor.

      Court:        Are you sure you want to proceed without a lawyer?

      Avalos:       Well, Your Honor—

      Court:        It is a yes or no?

      Avalos:       Yes, sir, Your Honor.

      Court:        All right. Now, you understand that the constitution allows you
                    your right to counsel?

      Avalos:       Yes, sir, Your Honor.

      Court:        And you chose your counsel. And now you are choosing to
                    proceed without your counsel; is that correct?

      Avalos:       Yes, sir, Your Honor.

                                            2
        Court:          Because you had hired Mr. Aron Peña?

        Avalos:         Yes, sir, Your Honor.

        Court:          And you now have fired him?

        Avalos:         Yes, Your Honor.

                 ....

        Court:          I really do think, and I'm going to suggest to you, that you get
                        a lawyer.

        Avalos:         Well, Your Honor, like I said—

        Court:          No.

        Avalos:         He who represents himself is a fool.

        Court:          Well, then you are admitting you are a fool.

        Avalos:         I'm—

        Court:          Just listen to me, please. The frustration that you see in my
                        eyes and in my face is that I am a true believer in the
                        constitution of our country.

        Avalos:         So am I.

        Court:          Will you stop interrupting me. And because I’m a firm believer
                        that the constitution protects our rights, there is a reason why
                        we have a right to counsel. You may think that you are the
                        most articulate individual in the city of Pharr, and that your
                        music is superior, and the fact that you own your home makes
                        you different than the police in the city of Pharr, and that’s your
                        theory.[1]

                        But let me suggest something to you. Just because people
                        have an idea that lawyers are scoundrels, or whatever you
                        want to call them, lawyers are trained. And you get yourself a
                        good lawyer. And that lawyers can protect your rights without
        1
          Earlier in the hearing, Avalos opined that the City of Pharr had a “cam paign” against him because
he listened to different m usic and owned his own hom e.
                                                     3
          going through a needless exercise of what the DA is going to
          do.

          I mean, I’m not just pulling your leg here. If you go up against
          Mr. Orendain [the assistant district attorney assigned to the
          case], you are going up against —

Avalos:   The best, I believe.

Court:    Let me finish. And someone who doesn’t interrupt me, either.
          You are going up against a man that is responsible for trying
          most of the capital murder cases in this County, the one who
          tries probably the most egregious crimes in this County and
          has the experience to do it. And you stand here indignant
          because you are charged with a crime that you believe that
          you are not guilty of, and that’s cool. But just because you are
          indignant doesn’t make you somehow or another a super
          advocate, all right.

Avalos:   Yes, Sir.

Court:    I have never said this on the record. I’m going to say it. There
          is an old saying in Spanish: “El que Dios no lo oye - El que no
          habla, Dios no lo oye.”

          Let me suggest something to you. Orendain is not Dios. And
          you shouldn’t be talking to him the way that you are attempting
          to talk to him, because he is going to take advantage, because
          that’s his job. His job is to make sure that he prosecutes those
          individuals that he believes are guilty. And he believes that
          you are guilty.

          So you can hear the chuckles from the people. They are not
          laughing because they feel sorry for you, they are laughing
          because they are seeing this exercise of futility. They are
          seeing you say things that that man is just writing down like he
          is a secretary, and he is not a secretary, he is a full-fledged
          prosecutor. So once again, you have the absolute right to
          represent yourself. And I’m going to let you. But my advice to
          you is for you to get counsel. All right. If you are dissatisfied
          with counsel that you hired before, there are plenty of lawyers
          out there that can help you.




                                  4
                       You are set for November 20. Okay?

       Avalos:         Your Honor, I appreciate your patience.

       Court:          Mr. Peña?

       Peña:           For the last three weeks I have been in trial.

       Court:          He didn’t spend that much time talking about that because I cut
                       him off.

       Peña:           Boy, that would be good, judge.

       Court:          I cut him off, Mr. Peña, because as far as I’m concerned, the
                       most important thing for me is that he is telling me that he
                       wants to represent himself. I am advising him not to.

       Peña:           I can stand by, if you would like me to stand by as counsel.

       Court:          Mr. Peña, he doesn’t want you as counsel. And if he wants to
                       represent himself, that's fine. I am advising him to get other
                       counsel if he doesn’t like the way you represent him. And he
                       just is making certain requests from the DA’s office. I am
                       making the DA available to him sometime this week. He can
                       do whatever he needs to do.

       Peña:           I think that he has dismissed me. I would like leave to
                       withdraw.

       Court:          Any objection?

                ....

       Court:          Okay. Mr. Peña, you are dismissed. Your Motion to Withdraw
                       is granted. Please get me an order.

       Pena:           I will, Your Honor. Thank you very much.

       On February 20, 2007, the case was transferred to an auxiliary court; the auxiliary

court held a final pre-trial hearing, and called the case for trial. At the final pre-trial hearing,



                                                 5
the auxiliary court judge, the Honorable Jaime Garza, entertained a trial amendment

regarding the indictment by the State. The following colloquy then took place:

      Court:          We understand you’re a layman, okay.

      Avalos:         I’m on trial for my life, Your Honor. It’s going to say whether I’m
                      an honorable man or a thief.

      Court:          You’re rolling the dice, sir, and not us.

                      Okay. Now, I’m going to tell you further and that’s why I asked
                      you if you had any legal experience. You seem to know what
                      you’re doing. However, you’re still a layman. You’re not a
                      lawyer are you?

      Avalos:         No, sir, Your Honor.

      Court:          Okay. Do you ever know the words contempt of court?

      Avalos:         Yes, sir, Your Honor.

      Court:          All right. I’m going to hold you to the same standards that I’m
                      going to hold her [the assistant district attorney].

      Avalos:         Yes, Your Honor.

      Court:          You’re expected to respect this court and the jury. You’re
                      expected to follow the Rules of Criminal Procedure.

      Avalos:         Yes, sir, Your Honor.

      Court:          Otherwise you will be held in contempt.

      Avalos:         Yes, sir, Your Honor

               ....

      State:          And, Judge, originally the Defendant was—so the record can
                      reflect a history of the trial. The arraignment—I show that the
                      Defendant was arraigned on June 19, 2006 and Mr. Aron
                      Pena, Sr. was originally on the case. And I believe that


                                               6
                           Defendant did not want Mr. Pena to represent him and,
                           therefore, he was allowed to withdraw. And the Defendant did
                           not wish other court[-]appointed counsel[2] or to retain other
                           counsel.

         Court:            Well, my understanding is that this morning before Judge
                           Gonzalez that you refused counsel; is that correct, sir?

         Avalos:           Yes, sir, Your Honor.

         Court:            Okay. And my understanding further is that he said you
                           were—that he would let you proceed—

         Avalos:           Pro se.

         Court:            —by yourself as you desire; is that correct?

         Avalos:           Yes, sir, Your Honor.

         Court:            All right. We’re going to go ahead—and we’ve got a jury
                           coming in at 2:45 which is in a few minutes. . . .

         State:            And, Judge, just for the record if the court can make a finding
                           that the Defendant has knowingly, intelligently, and voluntarily
                           waived his right to a court[-]appointed counsel in this case.

         Court:            That’s what—I just made that finding. I just inquired and I will
                           make that finding that you waived willingly, knowingly and
                           voluntarily—

         Avalos:           Your Honor, —

         Court:            —your right to counsel, sir. Yes, sir?

         Avalos:           I was wondering why at least—I couldn’t—they couldn’t at
                           least—what I was saying is I wanted to represent myself. I’ve
                           seen Defendants in other trial have at least an attorney, you

        2
              There is nothing in the record to suggest that Peña was a court-appointed attorney or that Avalos
was found indigent by the trial court so as to be eligible for a court-appointed attorney. See T EX . C OD E C R IM .
P R O C . A N N . art. 1.051(c) (Vernon 2005) (“An indigent defendant is entitled to have an attorney appointed to
represent him in any adversary judicial proceeding that m ay result in punishm ent by confinem ent and in any
other crim inal proceeding if the court concludes that the interests of justice require representation.”).



                                                         7
          know, advising them on the legal maneuvers.

Court:    Didn’t you—

Avalos:   This way I won’t be in contempt—

Court:    Didn’t you tell—

Avalos:   —of court, Your Honor.

Court:    —tell Judge Gonzalez that you did not want any lawyer? Didn’t
          you or not?

Avalos:   Yes, sir.

Court:    You just said you did.

Avalos:   Yes, sir, Your Honor.

Court:    All right.

Avalos:   Yes, sir, I did.

Court:    Now, you’re changing your mind?

Avalos:   No. No, I’ll you know, Your Honor,—

Court:    These are things you take—

Avalos:   —I made my bed and I’ll lie in it.

Court:    Well, these are things you take up earlier, sir. And, the other
          judge sent the case and he made these rulings at your
          request.

Avalos:   Yes, sir.

Court:    And I inquired again and you agreed.

Avalos:   Yes, sir, Your Honor.




                                   8
       Court:             Okay. Now, we’re going to pick the jury shortly.

       At trial, Avalos pleaded not guilty. The State called a Sam’s Club employee and a

McAllen police detective. Avalos testified in his own defense, and called his wife and

daughter to testify. The jury found Avalos guilty of theft. At the punishment phase, the trial

court sentenced Avalos to two years in the Texas Department of Criminal Justice and

ordered him to pay $2,900 in restitution. Avalos’s sentence was suspended, and he was

placed on community supervision for three years. This appeal ensued.

                                              II. DISCUSSION

       By his first issue, Avalos contends that the trial court did not properly admonish him

regarding the dangers and disadvantages of self-representation. We disagree.

       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. The Sixth

Amendment also includes the reciprocal right to self-representation. Williams v. State, 252

S.W.3d 353, 356 (Tex. Crim. App. 2008) (citing Faretta v. California, 422 U.S. 806, 818

(1975)); see also Oliver v. State, 872 S.W.2d 713, 715-16 (Tex. Crim. App. 1994). Before

being permitted to represent himself, a defendant must be made aware of the dangers and

disadvantages of self representation and must “knowingly and intelligently” forego the

benefits of having counsel.3 Faretta, 422 U.S. at 835; Geeslin v. State, 600 S.W.2d 309,

313 (Tex. Crim. App. 1980); see also Hatten, 71 S.W.3d 332 334 (Tex. Crim. App. 2002)

(holding that despite Faretta, waiver of counsel must be “knowing, intelligent and

       3
           Avalos does not challenge the “knowingly and intelligently” requirem ent.



                                                      9
voluntary.”).

       A waiver will not be presumed or implied from a silent record. See Carnley v.

Cochran, 369 U.S. 506, 516 (1962). Rather, the record must show that the defendant

intelligently and understandingly elected to proceed without counsel. Id.; Goffney v. State,

843 S.W.2d 583, 585 (Tex. Crim. App. 1992).

       When advising a defendant about the dangers and disadvantages of

self-representation, the 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.” Johnson v. State, 760 S.W.2d 277, 279 (Tex.

Crim. App. 1988). “‘[C]ourts indulge every reasonable presumption against waiver’ and . . .

‘do not presume acquiescence in the loss of fundamental rights.’” Johnson v. Zerbst, 304

U.S. 458, 464 (1938). To assess whether a waiver is effective, courts consider the totality

of the circumstances. Williams, 252 S.W.3d at 356.

       It is clear from the record that Auxiliary Court Judge Garza warned Avalos that he

was “expected to follow the Rules of Criminal Procedure.” Judge Garza further warned

Avalos that the court would hold him to the same standards as the assistant district

attorney that was prosecuting the case. Given Judge Garza’s admonishments and Judge

Gonzalez’s comments, Avalos went to trial with “his eyes wide open.” Johnson, 760

S.W.2d at 279. Avalos’s first issue is overruled.

       By his second issue, Avalos contends that the trial court erred by not granting his

request for the appointment of standby counsel. Yet, Avalos neither frames the standard

of review nor explains how the alleged “error” is reversible. It is well established that an

accused has no absolute right to hybrid representation. E.g., Landers v. State, 550



                                             10
S.W.2d 272 (Tex. Crim. App.1977). A trial court may, in its discretion, however, permit

both counsel and the accused to jointly participate in the case. See Webb v. State, 533

S.W.2d 780, 784 n.2 (Tex. Crim. App. 1976). The record in this case indicates that Avalos

eventually withdrew the request by stating, “I made my bed and I’ll lie in it.”

       Even if we were to construe Avalos’s request as a re-assertion of his right to

counsel, a defendant’s right to withdraw his waiver of the right to counsel is not without its

limits. “Trial courts have the duty, and discretion, to maintain the orderly flow and

administration of judicial proceedings, including the exercise of a defendant’s right to

counsel.” Medley v. State, 47 S.W.3d 17, 23 (Tex. App.–Amarillo 2000, pet. ref’d) (citing

Faretta, 422 U.S. at 834 n.46). A defendant “does not have the right to repeatedly

alternate his position on the right to counsel and thereby delay trial.” Id. (citing United

States v. Pollani, 146 F.3d 269, 273 (5th Cir. 1998)). A “decision of the trial court as to the

effect the reclamation of the right by the defendant would have on the orderly

administration of justice will not be disturbed on appeal absent an abuse of discretion.” Id.

at 24. In this case, the auxiliary court could have viewed Avalos’s request as an attempt

to delay a trial that had been set for November 20, 2006, but did not begin until February

20, 2007. Therefore, we find no abuse of discretion. Avalos’s second issue is overruled.

                                       III. CONCLUSION

       The judgment of the trial court is affirmed.


                                                   ________________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice
Do not publish. TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 30th day of December, 2008.


                                              11
