                                                                                    ACCEPTED
CASE NUMBER                                                                    13-15-00045-CR
                                                               THIRTEENTH COURT OF APPEALS
                                                                      CORPUS CHRISTI, TEXAS
                                                                         11/17/2015 4:02:01 PM
13-15-00445-CR                                                                Dorian E. Ramirez
                                                                                         CLERK

                 CAUSES 13-15-00045-CR & 13-15-00046-CR
    smata
      IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                                FILED IN
                                                13th COURT OF APPEALS
                                             CORPUS CHRISTI/EDINBURG, TEXAS
CASE NUMBER              CORPUS CHRISTI,   TEXAS
                                                11/17/2015 4:02:01 PM
                                                  DORIAN E. RAMIREZ
13-15-00446-CR                                           Clerk



    smata            HILBERTO MARTINEZ, APPELLANT

                                  VS.

                     THE STATE OF TEXAS, APPELLEE




                           APPELLANT’S BRIEF

                  Trial Causes 15-1-9390 & 15-1-9391

                     Jackson County District Court




                              Submitted by

                          W. A. (BILL) WHITE
                        Attorney for Appellant
                     POB 7422, Victoria, TX 77903
                      (361) 575-1774 voice & fax
                             TBN 00788659


                      ORAL ARGUMENT NOT REQUESTED
                                   1
            IDENTITY OF PARTIES AND COUNSEL

    Appellant was represented at trial by J. E. “Zeke”
Ramos, Attorney at Law, POB 271931, Corpus Christi,
Texas 78427. Appellant is represented on appeal by
Bill White, Attorney at Law, POB 7422, Victoria, TX
77903. During trial, appellant was a resident of
Jackson County, Texas. Appellant is currently
incarcerated in IDTDCJ.

    The State was represented at trial by Robert Bell,
D.A. and Pam Guenther, A.D.A., both of the Jackson
County District Attorney’s Office, located at 115 W.
Main Street, 2nd Flr, Edna, TX 77957. The State’s reply
brief will be handled by Jim Vollers, 2201 Westover
Road, Austin, TX 78703.




                           2
                      TABLE OF CONTENTS

                                               Page

Index of Authorities                            4

Appellant’s Brief                               5

Statement of the Case and Statement of Facts    5

Issue Presented                                 8

THE TRIAL COURT ERRED BY FAILING TO PROPERLY ADDRESS
APPELLANT’S REQUEST FOR SELF-REPRESENTATION

Summary of Argument                             9

Argument                                        9

Prayer                                          13

Certificate of Service                          14

Certificate of Compliance                       14




                              3
                 INDEX OF AUTHORITIES

Cases                                                 Page

Adams v. United States, 317 U.S. 269 (1942)        10,11

Collier v. State, 959 S.W.2d 621(Tex.Crim.App.1997)9,10

Faretta v. California, 422 U.S. 806 (1975)           10,11

Ford v. State, 73 S.W.3d 923 (Tex.Crim.App.2002)       11

Miles v. State, 204 S.W.2d 822 (Tex.Crim.App.2006)     11

Williams v. State, 252 S.W.3d 353(Tex.Crim.App.2008)
                                                  10,11




                           4
          CAUSES 13-15-00045-CR & 13-15-00046-CR
            Trial Causes 15-1-9390 & 15-1-9391


HILBERTO MARTINEZ, Appellant        IN THE THIRTEENTH

VS.                                 COURT OF APPEALS AT

THE STATE OF TEXAS, Appellee        CORPUS CHRISTI, TEXAS


                     APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW APPELLANT, HILBERTO MARTINEZ, through

counsel, W. A. (BILL) WHITE, Attorney at Law, showing:



       STATEMENT OF THE CASE AND STATEMENT OF FACTS

      Appellant was charged in January 2015 by two

indictments, each for burglary of a habitation.      One

indictment alleged an offense on 11/23/14 and the other

an offense on 12/01/14.   Both indictments alleged Cody

Parker as the victim.   Each alleged two previous felony

convictions, both pleas being entered on the same date,

making the alleged offenses, normally second degree

felonies, into first degree felonies with punishment



                             5
ranges of 5 to 99 years or life in prison and up to a

$10,000 fine.

    Jury selection began on 8/24/15, with trial on the

merits immediately following.     After the jury had been

selected and merits began, appellant and his attorney

raised the issue of appellant representing himself at

trial, well into the guilt phase.    Appellant vacillated

between just cross-examining some witnesses himself and

representing himself alone, without legal counsel.(RR

Vol. 4, p. 150, lines 7-11)

    The State’s prosecutor quickly and correctly argued

that appellant had no right to hybrid representation,

where appellant and his lawyer work together as co-

counsel at trial.(RR Vol. 4, p. 150, lines 12-14)

    The trial judge then changed the subject to another

issue that the parties had been arguing about, not

related to any issue of self-representation.(RR Vol. 4,

p. 150, line 15 through p. 151, line 16).    Appellant’s

trial counsel then redirected the conversation back to

his client’s desire for self-representation, adding


                              6
however that, at this late point in the trial, it might

be “too late to do that”.(RR Vol. 4, p. 151, lines 17-

20)

       The trial judge immediately agreed, stating, “I

think it’s too late to do that, yes, we’re in the

middle of a jury trial.”(RR Vol. 4, p. 151, lines 21-

22).    Appellant then drifted back to a desire for

hybrid representation, although not by name.(RR Vol. 4,

p. 151, line 23 through p. 152, line 2)

       Appellant then referenced a motion to withdraw

overruled at a pretrial hearing during the previous

week, reminding the court that he had stated at same

that he was “willing to --- and ready to testify myself

and to represent myself”.(RR Vol. 4, p. 152, lines 3-

7).    Appellant went on to refer to this motion to

withdraw as “my motion”, indicating that it may have

been a pro se motion filed by him to remove his trial

counsel.    Appellant explained that his lawyer wanted

more time to prepare for trial in light of “evidence

that Mr. Bell had just gave him” (possibly discovery),


                              7
but that he as the accused wanted no more delays in

reaching trial.(RR Vol. 4, p. 152, lines 8-21)

    The trial judge then referenced his earlier denial

of the motion to withdraw during the previous week and

said, “So we’ll just need to move forward.”(RR Vol. 4,

p. 152, lines 22-23).     Appellant then asked again for

hybrid representation, but was told this would not be

allowed by the trial judge.(RR Vol. 4, p. 152, line 24

through p. 153, line 2)

    Appellant was convicted as charged on 8/27/15 in

both indictments.   At the punishment phase, appellant

pled true to both enhancements.    After evidence was

presented, the jury assessed punishment in each cause

on 8/27/15 at 99 years in prison, plus fines of

$10,000.   The sentences ran concurrently.



                     ISSUE PRESENTED

 THE TRIAL COURT ERRED BY FAILING TO PROPERLY ADDRESS
      APPELLANT’S REQUEST FOR SELF-REPRESENTATION




                              8
                   SUMMARY OF ARGUMENT

    Appellant, after trial began, asserted his

constitutional right of self-representation to the

trial judge.   This assertion was not addressed by the

trial court as required by law.    As a result, appellant

was denied his right to self-representation.    The trial

court did not properly admonish appellant on the

dangers and disadvantages of self-representation to

allow him to further make a knowing and intelligent

decision as to this federal constitutional right.



                        ARGUMENT

    The decision to waive counsel, to be

constitutionally effective, must be made (1)

competently, (2) knowingly and intelligently, and (3)

voluntarily.   The decision to … 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




                            9
self-representation. Collier v. State, 959 S.W.2d 621,

625-626 (Tex.Crim.App. 1997).

    The Constitution does not force a lawyer upon a

defendant. Adams v. United States, 317 U.S. 269, 279

(1942).   The Sixth Amendment right to counsel implies

also a “correlative right to dispense with a lawyer’s

help.” Id.   The right of self-representation finds

support in the structure of the Sixth Amendment, as

well as the English and colonial jurisprudence from

which the Amendment emerged. Faretta v. California, 422

U.S. 806, 818 (1975).

    Although a defendant need not himself have the

skill and experience of a lawyer in order competently

and intelligently to choose self-representation, he

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.” Adams at 279.     Once the

issue of self-representation is raised, a trial judge

has an absolute duty to determine whether any waiver of


                            10
the right is knowing, intelligent, and voluntary.

Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App.

2008).   Once asserted, the trial court must conduct a

Faretta hearing and admonish the defendant to “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 at 835 [quoting Adams v. United States, 317

U.S. 269, 279 (1942)].

    Texas jurisprudence holds that constitutional

errors are only immune to harmless error analysis if

classified as structural defects by the United States

Supreme Court. Ford v. State, 73 S.W.3d 923, 925 n. 4

(Tex.Crim.App. 2002).    The Court of Criminal Appeals

has recognized that violations of a defendant’s right

to self-representation are immune from harmless error

because of their classification as structural defects.

See Miles v. State, 204 S.W.2d 822, 827 (Tex.Crim.App.

2006).




                             11
    The State in the case at bar cannot credibly argue

that appellant asked during his guilt phase to defend

himself to foster delay or slow the proceedings against

him because, as noted earlier, he asked to have his

hired counsel removed only a week before because he

wanted no more delays.   Only his trial lawyer wanted

more time.   The State cannot ask this Honorable Court

to assume that appellant wanted to represent himself in

order to generate courtroom antics which might derail

his trial, without evidence in the record of same.

When appellant was refused his request to represent

himself or question some witnesses personally, he

answered the judge with, “All right” and behaved

thereafter.(RR Vol. 4, p. 153)

    The trial judge in this cause should have taken the

time to review with appellant the inherent dangers and

disadvantages of self-representation, then asked

appellant if he still wished to defend himself without

legal counsel.   This would have also served to clarify

appellant’s confusion on the difference between self-


                            12
representation and hybrid representation.   However,

after first trying to ignore the subject and move to

another issue, the trial court merely repeated its

stale ruling from one week prior and stated, “So we’ll

just need to move forward.”(RR Vol. 4, p. 152)

    The trial judge should have inquired further,

outside the jury’s presence, whether conflicts of any

kind had arisen between appellant and his trial counsel

which might have affected counsel’s exercise of a

vigorous defense or his effectiveness as counsel in

general.



                        PRAYER

    Appellant prays that these convictions be reversed.

                                Respectfully submitted,

                                /s/ W. A. White
                                W. A. (BILL) WHITE
                                ATTORNEY FOR APPELLANT
                                POB 7422, Vict., TX 77903
                                (361) 575-1774 voice/fax
                                TBN 00788659




                           13
                 CERTIFICATE OF SERVICE

    I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Robert

Bell, Jackson County District Attorney’s Office, 115 W.

Main St., 2nd Flr, Edna, TX 77957 via U.S. mail, fax,

electronic delivery, or hand-delivery on this the 17th

day of November 2015.

                                /s/ W. A. White
                                W. A. White


               CERTIFICATE OF COMPLIANCE

    I certify that this brief contains 1,665 words.

                                /s/ W. A. White
                                W. A. White




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