                            NUMBER 13-11-00636-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ARMANDO EUGENE HICKS,                                                     Appellant,


                                          v.


THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 359th District Court
                       of Montgomery County, Texas.


                        MEMORANDUM OPINION
                Before Justices Garza, Perkes, and Longoria
                 Memorandum Opinion by Justice Longoria
      By two issues, appellant, Armando Eugene Hicks, appeals his conviction for

possession of cocaine, a controlled substance in Penalty Group 1, in an amount greater

than 400 grams, with intent to deliver, a first-degree felony offense. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(a), (f) (West 2010). We affirm.
                                          I. BACKGROUND1

       Appellant was arrested after he attempted to purchase five kilograms of cocaine

from an undercover agent of the United States Drug Enforcement Agency. Thereafter,

appellant was indicted for possession with intent to deliver. Appellant pled not guilty

and elected to represent himself at trial. The trial court appointed standby counsel to

assist him.

       After appellant attempted to file fraudulent liens on the home of the presiding

judge of the 9th District Court, where his case was pending, and the homes of the

prosecutors handling the case, the court ordered a psychiatric evaluation of appellant

and subsequently transferred the case to the 359th District Court. Again, appellant

attempted to file a lien on the home of the presiding judge, who later recused herself

and was replaced by a visiting judge. Ultimately, appellant proceeded to trial pro se, but

he was accompanied by standby counsel, who cross-examined several witnesses,

made trial objections, and conducted the direct examination of the only defense witness

other than appellant.

       The jury found appellant guilty as charged and assessed punishment at life

imprisonment. This appeal ensued.

                                II. WAIVER OF RIGHT TO COUNSEL

       In his first issue, appellant argues that his conviction must be reversed because

the trial court failed to properly admonish him regarding the perils of self-representation.

A. Applicable Law



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         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).

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       “An indigent defendant is . . . entitled to appointed counsel unless the defendant

competently, intelligently, and voluntarily waives the right to counsel.” Williams v. State,

252 S.W.3d 353, 356 (Tex. Crim. App. 2008).           To be constitutionally effective, the

assertion of the right to self-representation “must be made (1) competently, (2)

knowingly and intelligently, and (3) voluntarily.” Moore v. State, 999 S.W.2d 385, 396

(Tex. Crim. App. 1999). “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.” Id. at 396 n.4. “The decision is made ‘voluntarily’ if it is uncoerced.”

Id.

       Once the defendant has asserted his right to self-representation, “the trial judge

must inform the defendant about 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.” Williams, 252 S.W.3d at 356. “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.” Id.

“But a trial judge has no duty to inquire into an accused’s age, education, background or

previous mental history in every instance where an accused expresses a desire to

represent himself.” Id.

B. Standard of Review

       “Courts indulge every reasonable presumption against waiver and do not

presume acquiescence in the loss of fundamental rights.”            Id.   “The trial judge is



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responsible for determining whether a defendant’s waiver is knowing, intelligent, and

voluntary.” Id. “To assess whether a waiver is effective, courts consider the totality of

the circumstances.” Id.

C. Discussion

       In this case, the record reflects that appellant asserted his right to self-

representation from the outset of the proceedings. The record also reflects that the trial

court appointed counsel to advise appellant regarding the trial process and to ensure

that appellant understood the consequences of proceeding pro se. Subsequently, in a

hearing held approximately two weeks later, the trial court stated that it was going to

“assume” that one of the other two judges who had presided over appellant’s case had

advised him of the “dangers in representing yourself.” Appellant answered affirmatively.

The trial court asked appellant if he understood “that we operate under Rules of

Evidence,” and appellant stated that he did. The trial court also asked appellant if he

understood that counsel had been appointed to assist him, and appellant stated that he

did. In a hearing held the following month, the trial court asked appellant if he had re-

considered his decision to represent himself, and appellant stated that he still desired to

represent himself. Standby counsel was present during all of the foregoing exchanges

and assisted appellant at trial.

       We note that “admonishments to a defendant about the perils of self-

representation are not required (though preferable) when, as in this case, standby

counsel has been appointed.” Cudjo v. State, 345 S.W.3d 177, 184 n.4 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d); see also Walker v. State, 962 S.W.2d 124, 127

(Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (“Although appellant in this case



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conducted his own defense, he did have access to standby counsel appointed by the

trial court.   Therefore, we hold that the absence from the record of Faretta

admonishments was not error.”). Therefore, we reject appellant’s argument that the trial

court erred in failing to properly admonish him.

       Appellant’s first issue is overruled.

                               III. ADMISSIBILITY OF EVIDENCE

       In his second issue, appellant argues that the trial court erred in admitting the

evidence of cocaine because there were gaps in the chain of custody and evidence of

tampering.

A. Standard of Review

       “An appellate court reviewing a trial court’s ruling on the admissibility of evidence

must utilize an abuse-of-discretion standard of review.” Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000). “In other words, the appellate court must uphold the

trial court’s ruling if it was within the zone of reasonable disagreement.” Id. “In addition,

the appellate court must review the trial court’s ruling in light of what was before the trial

court at the time the ruling was made.” Id.

B. Applicable Law

       “Absent evidence of tampering or other fraud, . . . problems in the chain of

custody do not affect the admissibility of the evidence.” Druery v. State, 225 S.W.3d

491, 503 (Tex. Crim. App. 2007). “Instead, such problems affect the weight that the

fact-finder should give the evidence, which may be brought out and argued by the

parties.” Id. at 503–04.

C. Discussion



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         In this case, appellant argues that there was evidence of tampering because,

according to a laboratory report by the Texas Department of Public Safety dated

October 11, 2005 (approximately five years before appellant’s arrest), the cocaine used

by law enforcement in appellant’s transaction weighed 6.91 kilograms; yet, the cocaine

admitted as State’s exhibit 88 had a gross weight of 7.132 kilograms. We disagree that

this is evidence of tampering.

         Under section 37.09 of the Texas Penal Code, tampering with evidence occurs

when a person “alters, destroys, or conceals any record, document, or thing with intent

to impair its verity, legibility, or availability as evidence in the investigation or official

proceeding” or “makes, presents, or uses any record, document, or thing with

knowledge of its falsity and with intent to affect the course or outcome of the

investigation or official proceeding.” TEX. PENAL CODE ANN. § 37.09(a) (West Supp.

2011).

         At trial, the State’s laboratory technician testified regarding the discrepancy in the

weight of the cocaine. The first measurement of 6.91 kilograms was “net weight” (i.e.,

without packaging), whereas the second measurement of 7.132 kilograms was “gross

weight” (i.e., with packaging). The witness further testified that it is not unusual for the

packaging materials to weigh 200 grams or more when dealing with this quantity of

cocaine. In light of the foregoing testimony, we conclude that the trial court’s ruling was

within the zone of reasonable disagreement.           See Weatherred, 15 S.W.3d at 542.

Furthermore, any alleged gaps in the chain of custody go to weight, and not

admissibility, of the evidence. See Druery, 225 S.W.3d at 503–04.

         Appellant’s second issue is overruled.



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                                    IV. CONCLUSION

      The judgment of the trial court is affirmed.



                                                _______________________
                                                NORA L. LONGORIA
                                                Justice
Do not publish.
TEX. R. APP. P. 47.2(b)

Delivered and filed the
28th day of February, 2013.




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