     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     444444444444444
                                     NO. 03-00-00069-CR
                                     444444444444444


                             LaFrance K. Yarbrough, Appellant
                                            v.

                                 The State of Texas, Appellee


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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
        NO. 0993932, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
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                Appellant LaFrance K. Yarbrough was convicted by a jury of the offense of

delivery of a controlled substance, namely, cocaine, in the amount of less than one gram. See

Tex. Health & Safety Code, Ann. § 481.112(1)(a) (West Supp. 2000). The jury found appellant

had been previously convicted of two prior felony convictions as alleged and assessed his

punishment at twenty years’ imprisonment. See Tex. Penal Code Ann. § 12.42(a)(2) (West Supp.

2000).


                                             Issues

                Appellant advances two issues as follows:


         Issue One: Whether appellant’s decision to represent himself was knowingly,
         intelligently, and competently made [as required by] 1 the Sixth and Fourteenth
         Amendments to the United States Constitution.

         1
         Added to clarify the issue as stated by appellant and in accordance with the argument
advanced in his appellate brief.
       Issue Two: Whether trial court erred in allowing appellant to represent himself at
       trial.


               The two issues are interrelated and shall be considered together. We will affirm.


                                Facts Concerning The Offense

               The sufficiency of the evidence to sustain the conviction for constructive delivery

of cocaine of less than one gram is not challenged.       Suffice it to say, the record reflects

overwhelming evidence of appellant’s guilt. Austin Police Officer Kenneth Connor was working

as an undercover agent on April 6, 1999 in the “Craigwood/MLK area” of east Austin. Officer

Connor was dressed in mufti and was driving an unmarked automobile with a video camera.

Connor related that in the afternoon of the day in question, appellant hollered at him. Connor

stopped his vehicle and then pulled up close to appellant. When appellant asked Connor what he

wanted, Connor replied in street language, “a 20,” meaning a rock of cocaine. A young man,

later identified as Trent Yarbrough, appellant’s son, approached the vehicle. Appellant instructed

Trent to give Connor “ a 20,” which Trent did in exchange for $20 from Connor. The video-tape

introduced into evidence confirmed most of Officer Connor’s testimony. The chain of custody

of the substance obtained by Officer Connor was established. The Austin Police lab chemist

testified that the substance was crack cocaine weighing 0. 09 grams.


                               The Right to Self-Representation

               Appellant’s two issues present Faretta v. California, 422 U.S. 806 (1975),

questions. To be constitutionally effective, the decision to represent one’s self must be made (1)


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competently, (2) knowingly and intelligently, and (3) voluntarily. See Godinez v. Moran, 509

U. S. 389, 400-01 (1993); 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, which is being abandoned, as well as the dangers

and disadvantages of self-representation. ” Collier, 959 S.W.2d at 626 (citing Faretta, 422 U. S.

at 834-36). “The decision is made ‘voluntarily’ if it is uncoerced.” Id. Moreover, a defendant’s

choice of self-representation is not involuntary because of his dissatisfaction with his court-

appointed counsel. See Barnes v. State, 921 S.W.2d 881, 882 (Tex. App.—
                                                                      Austin 1996, pet.

ref’d).

                 An accused, in order to competently and intelligently invoke his Sixth Amendment

right to represent himself, should be made 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. While the choice of self-representation must

be knowingly and intelligently made, it need not be wise. Indeed, an accused must be permitted

to conduct his own defense, even to his detriment, if it is an informed decision. See Scarbrough

v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989).


          [T]he competence that is required of a defendant seeking to waive his right to
          counsel is the competence to waive the right, not the competence to represent
          himself. In Faretta v. California, 442 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
          (1975), we held that a defendant choosing self-representation must do so
          “competently and intelligently,” id., at 835, 95 S.Ct., at 2541, but we made it
          clear that the defendant’s “technical legal knowledge” is “not relevant” to the
          determination whether he is competent to waive his right to counsel, id., at 836,
          95 S.Ct. , at 2541, and we emphasized that although the defendant “may conduct
          his own defense ultimately to his own detriment, his choice must be honored,” id.,

                                                  3
       at 834, 95 S. Ct. at 2541. Thus, while “[i]t is undeniable that in most criminal
       prosecutions defendants could better defend with counsel’s guidance than by their
       own unskilled efforts,” ibid., a criminal defendant’s ability to represent himself has
       no bearing upon his competence to choose self-representation.


Godinez, 509 U. S. at 399-400.

               When an accused asserts his right to self-representation, a trial court need follow

no “formula questioning” or particular “script” to assure the court that a defendant is asserting

this right with his eyes open. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991).

The only requirement is that the record “contain[s] proper admonishments concerning pro se

representation and any necessary inquiries of the defendant so that the trial court may make ‘an

assessment of his knowing exercise of the right to defend himself.’” Id. See also Halliburton v.

State, 928 S.W.2d 650, 652 (Tex. App.—
                                     San Antonio 1996, pet. ref’d).

               “In the end, however, a defendant must be allowed to represent himself ‘if he truly

wants to do so.’ Farretta, supra, 422 U. S. at 817, 95 S. Ct. at 2532.” Blankenship v. State, 673

S.W.2d 578, 584 (Tex. Crim. App. 1984).


                              Background - Exercise of the Right

               Appellant was arrested on April 20, 1999. Counsel was appointed for him on April

26, 1999. The first indictment was returned on July 26, 1999. Appellant was reindicted on

August 24, 1999. On September 26, 1999, appellant filed a pro se motion for substitution of

appointed counsel claiming lack of communication, a one-time jail visit, and failure of counsel

to apply “himself to seeking the truth. ” The motion was denied. On November 4, 1999, during

a pretrial hearing, appellant requested the right to represent himself and in response to the trial

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court’s inquiry, acknowledged that he knew “the dangers of doing that. ” The trial court pointed

out that the number of prior convictions alleged (seven at that time) indicated that appellant was

facing a long time in prison and that self-representation was “ a very dangerous thing to do. ” The

trial court asked appellant “to sleep on it” and “think long and hard” before insisting on self-

representation because it was a “big, big, big risk. ” Appellant was told that his court-appointed

counsel was an experienced attorney who knew the rules and knew how to select a jury. On

November 12, 1999, the trial court again inquired into appellant’s desire and determined that

appellant understood the charge against him and the range of punishment in view of the

indictment’s allegations; that appellant had communicated with his attorney about the offense and

the facts behind it; that appellant was forty-two years old, had graduated from high school, and

had taken college courses while he was in the military for twelve years; that later he worked at

Pizza Hut and Brake Check, and had his own business for six months; that he was competent and

did not have “delusions or anything”; that in prison he had seen a psychiatrist for depression and

anxiety attacks; and that he was on medication, and “all those problems have been medically taken

care of.”

               Appellant told the court that he was having a communication problem with his

court-appointed counsel; that he had been searching in law books for cases similar to his; that it

“just would get too complicated” for his attorney to read “the thoughts coming out of my mind”

and ask the proper questions; and that he could ask the questions in a clear manner. Appellant

denied that he wanted to represent himself in order to get a lighter sentence or arouse sympathy

in the jurors’ minds. He denied coercion or being forced to request self-representation.


                                                5
               Appellant briefly outlined the trial procedure for the trial court but acknowledged

he had little knowledge of the rules of evidence. Appellant assured the trial court that he knew

he would have to follow the rules of law if he acted as his own counsel. He stated that he would

feel better if the case was in his hands. Appellant told the trial court that he had had counsel at

the time of his prior convictions.

               At this point, the trial court advised appellant of his right to counsel, which would

have to be waived if appellant wanted to proceed pro se. Appellant then executed a written waiver

of the right to counsel. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (West Supp. 2000). The

trial court informed appellant that he could withdraw the waiver at any time. In response to

appellant’s request for “co-counsel,” the trial court designated court-appointed counsel as stand-by

counsel who would act in an advisory capacity and explain courtroom procedure and rules of

evidence when requested. Counsel was instructed and agreed to do legal research for appellant.

The trial court then ordered the jail authorities to make legal research material available to

appellant.   Again, appellant was warned of the “bad results” that normally followed self-

representation and was told that he would be facing a trained and experienced prosecutor.

Appellant persisted in asserting his right to self-representation.

               The trial court ordered that the State’s file be made available to appellant as well

as the juvenile file on his son, Trent. The video-tape was to be shown to appellant a second time.

In addition, the trial court ordered another chemical analysis of the substance by a different agency

at the request of appellant, and appointed an investigator for appellant.




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                                       Appellant’s Argument

                Appellant argues that neither his decision to waive the right to counsel nor to

represent himself were intelligently and knowingly made, and thus, it was error for the trial court

to accede to his decisions. His claims concerning these matters are intertwined and somewhat

difficult to untangle.

                Appellant had taken college courses, served in the military for twelve years, and

at one time operated his own business. He made clear to the court that he wanted to abandon his

right to appointed counsel and represent himself. The appellant executed a written waiver of

counsel in accordance with article 1.051(g) stating in part that he understood his right as an

indigent to have appointed counsel and requesting his right to proceed without counsel. The

record is clear that appellant, with prior courtroom experience represented by counsel, voluntarily,

knowingly, and intelligently waived his known right to counsel in his quest for self-representation.

No error is shown in permitting appellant to waive his right to counsel.

                We now focus upon whether appellant was properly advised of the dangers and

disadvantages of self-representation. Appellant does not deny he wanted and requested the right

to represent himself. No particular admonishments, “script, ” or litany of questions is required

for a trial court to follow to assure that a defendant is asserting his right to self-representation with

his eyes open. Burgess, 816 S.W.2d at 428. The record is clear, without reiteration, that proper

admonishments were given concerning pro se representation and sufficient inquiries were made

of appellant so that the trial court could make an assessment of appellant’s knowing exercise of

his constitutional right of self-representation.


                                                   7
                                  Contentions to the Contrary

               Appellant, however, advances contentions to the contrary. We shall consider these,

but not necessarily in the order urged by appellant. First, we turn to appellant’s claims that the

trial court failed to discuss defenses to the offense charged in the indictment and to discuss

possible mitigating circumstances.     Appellant relies upon Blankenship, 673 S.W.2d at 583

(quoting Von Moltke v. Gillies, 332 U.S. 708, 723 (1948)). Von Moltke involved a federal habeas

corpus proceeding following a guilty plea based on claims of mistaken advice from the FBI and

entry of the plea without the assistance of counsel or an understanding waiver of the right to

counsel. There, the court indicated that a waiver of the right to counsel must be made by the

defendant with an apprehension of the nature of the offense, range of punishment, and “possible

defenses to the charges and circumstances in mitigation thereof.” Von Moltke, 332 U. S. at 723.

The right to self-representation was not involved.

               If the Blankenship opinion can be read as requiring the trial court to inform the

accused, who has asserted his right of self-representation, of possible defenses and mitigating

circumstances, we believe that the interpretation is overbroad on practical and reliability grounds

in view of the trial court’s position. The trial court cannot be the legal advisor to either the State

or the defense. In most cases, the trial court will not know the facts of the case and could not,

properly or improperly, advise the defendant of all possible defenses or suggest mitigating

circumstances. Moreover, appellant has not claimed or shown that there were possible defenses

or mitigating circumstances of which he should have been informed by the trial court. No harm

is shown.


                                                  8
               Appellant’s other contentions are that (1) there was a lack of consultation time

(between appellant and his counsel) before and during the trial; (2) there was a failure to provide

appellant with access to a law library; and (3) there was a failure to provide adequate time to

prepare a defense.    Appellant’s ability to represent himself at trial has no bearing on his

competence to choose self-representation and is, of course, not relevant to the issues presented on

appeal. Nonetheless, we will discuss the contentions.

               First, appellant urges that he and his attorney did not have sufficient time to consult

before and during trial. This contention seems to be based on appellant’s own statement during

the pretrial hearing on November 12, 1999, that he had consulted with his then-appointed counsel

“very briefly. ” After appellant exercised his constitutional right of self-representation, he became

his own lawyer. Appellant’s “during trial” argument seems to have little foundation. Appellant

is obviously referring to his stand-by counsel. An accused has no absolute right to hybrid

representation. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); Scarbrough, 777 S.W.2d

at 92; Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977). A trial court may, in its

discretion, however, permit both counsel and accused to jointly participate in the case. See Webb

v. State, 533 S.W.2d 780, 784 n. 2 (Tex. Crim. App. 1976); 41 George E. Dix & Robert O.

Dawson, Criminal Practice and Procedure, § 24.33 at 577 (Texas Practice 1995) (hereinafter

Dix). In the instance case, the trial court in its discretion appointed stand-by counsel to assist

appellant if he should seek such help. See McKaskle, 465 U. S. at 170; Scarbrough, 777 S.W.2d

at 92; Dix § 24.34 at 578. This was done at appellant’s request. If it be appellant’s contention

that “during trial” he did not have sufficient time to consult with stand-by counsel, he has failed


                                                 9
to point out where in the record he requested time to consult with counsel and that his request was

refused. See Tex. R. App. P. 38.1(h). Appellant has not cited any authorities to support his

claim. We find no merit in this contention.

               Next, appellant contends that there was a failure to provide him access to a law

library. The exercise of appellant’s right to self-representation was not conditioned upon this

matter. Cf. Scarbrough, 777 S.W.2d at 93. We are not directed to any part of the record where

an objection or request was made on the basis now urged. No authorities are cited, and no

showing is made how this contention bears on the issues presented. See Tex. R. App. P. 38.1(h).

Appellant was incarcerated, and the trial court entered an order that legal research material be

made available to him. Stand-by counsel was instructed and agreed to do legal research upon

appellant’s request.

               Still further, appellant contends that he “did not have enough time to learn the law,

understand the rules and procedures and prepare a defense.” 2 Appellant does not tell us how much

time would have been required for him to “ learn the law” or even what defense he had to urge.

Further, appellant does not explain why he, with the advice of his stand-by counsel, did not file

a motion for continuance based on the grounds now advanced. This and the other points of error

are all without merit.




       2
         The trial court is not obligated to assess a defendant’s technical legal knowledge, and
such knowledge is not relevant to an assessment of his knowing exercise of the right to represent
himself. See Geeslin v. State, 600 S.W.2d 309, 313 (Tex. Crim. App. 1980).

                                                10
                The trial court repeatedly tried to impress upon appellant the extreme gravity of his

request to proceed pro se and the likelihood that it was a serious mistake. Under the record before

us, appellant affirmatively waived this right to counsel and voluntarily decided to represent

himself competently, intelligently, and knowingly after being fully advised of the dangers and

disadvantages of self-representation. The trial court did not err in allowing appellant to proceed

pro se. After the exercise of appellant’s constitutional right, the careful trial court took many

steps to insure appellant a fair trial.

                Appellant’s two issues are overruled. The judgment is affirmed.




                                              John F. Onion, Jr. , Justice

Before Justices B. A. Smith, Yeakel and Onion*

Affirmed

Filed: October 12, 2000

Do Not Publish




*
    Before John F. Onion, Jr. , Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

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