Opinion issued January 7, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-12-00641-CR
                          ———————————
                      ROBERT LEE HICKS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 228th District Court
                          Harris County, Texas
                      Trial Court Case No. 1327680



                        MEMORANDUM OPINION

      A jury convicted appellant of possession of less than one gram of a

controlled substance, and the trial court, after finding two enhancements true,

assessed punishment at 20 years’ confinement. In two points of error, appellant
contends that the trial court erred in (1) failing to grant appellant’s request to

withdraw his waiver of counsel, (2) failing to hear appellant’s pro se motions after

granting appellant’s motion to proceed pro se, and (3) assessing costs based on

insufficient evidence. We affirm.

                                BACKGROUND

      After being stopped for a traffic offense, appellant became argumentative

when told to put his hands on the steering wheel, so the police officer removed

appellant and his passenger from the car, handcuffed them, and placed them in the

back seat of his patrol car. Appellant provided the officer with his name and

identification, but his passenger gave a false name, which the officer knew to be

that of a Houston Texans football player. As the men were sitting in the back of

the patrol car, an officer saw appellant’s passenger crushing a white substance into

the floorboard. The officer arrested appellant based on the traffic offense he had

seen and the passenger based on suspicion of possession of crack cocaine.

Appellant was searched incident to arrest and police found four rocks of crack

cocaine in his sock. Police also recovered a .22 caliber pistol from the center

console of the vehicle. Appellant was charged with possession of a controlled

substance in an amount less than one gram, with two prior felony enhancements,

and with being a felon in possession of a handgun.




                                         2
Appointment of Counsel and Pretrial Motions

      On November 21, 2011, the trial court appointed Lisa Andrews to represent

appellant. After appellant was appointed counsel, but before counsel was allowed

to withdraw, appellant filed a pro se Writ of Mandamus, in which he sought to

compel the trial court to rule on his motion (1) to dismiss court appointed attorney,

(2) to proceed pro se, (3) for extra law library time, (4) to set indigent bond in both

cause numbers, (5) for an examining trial, (6) to meet with the grand jury, (7) to

suppress evidence, (8) to receive a full and complete copy of police report and all

officers statements, (9 for discovery and inspection of all evidence, (10) for the

appointment of a private investigator, (11) to have written rulings on all motions

filed, (12) for the assistance of a public defender in hybrid representation, (13) to

order court reporter to transcribe any and all proceedings, (14) in limine, and (15)

to dismiss without prejudice on grounds the co-defendant’s case was dismissed (no

probable cause).1




1
      None of the motions referenced in this “Writ of Mandamus” appear in the record
      of this case. Appellant argues that they must have been placed in the file of his
      companion case, which he had expunged after he was acquitted on that charge.
      However, the motion for appointment of an investigator, which appellant
      challenges in his second point of error, was discussed on the record, thus, for
      purposes of this opinion we will assume that it was filed in this case also.

                                          3
First Faretta Hearing Before Trial Court

      On March 2, 2012, the trial court held a Faretta hearing2, and granted

appellant’s motion to proceed pro se. On the record, the trial court specifically

denied appellant’s request for hybrid representation. At the end of the Faretta

hearing, appellant asked, “Do you want to have that hearing on the writ,” to which

the trial court replied, “Like I said, you have to follow Rules of Procedure. You’re

on your own sir.” The trial court then signed an order making the findings required

under Faretta and granting appellant’s motion to waive counsel and proceed pro

se; appellant refused to sign the same order. Another order, titled Motion to

Withdraw as Attorney of Record” and signed by appellant and appointed counsel,

contains a handwritten notation “D wants to proceed pro se court allowed d/c to

w/d from case,” was signed by the trial court on the same day, but “denied” is

circled instead of “granted.”

Second Faretta Hearing and Pretrial Motions Before Visiting Judge

      At a pretrial hearing on May 16, 2013, a visiting judge assigned to try the

case noticed that the motion had been marked “denied,” so he decided to hold a

second Faretta hearing the following day.         At the second Faretta hearing,


2
      To exercise the right to self-representation, a defendant must knowingly and
      intelligently forgo the benefits of counsel, and effectively waive the Sixth
      Amendment right to counsel. See Faretta v. California, 422 U.S. 806, 835, 95 S.
      Ct. 2525, 2541 (1975). Thus, a defendant “[s]hould be made aware of the dangers
      and disadvantages of self-representation” by the trial court.” Id.
                                         4
appellant again asked for “standby” counsel, which the visiting judge again denied.

After providing the required admonishments, the trial judge asked appellant, “Do

you want to represent yourself? And this is the last time that I am going to ask

you.” Appellant replied, “I really do.”

      After being allowed once again to proceed pro se, appellant asked, “Are we

going to have a motions hearing on my motions and on the writ?” The trial judge

responded affirmatively. The trial judge then ruled on the motions on appellant’s

“Writ of Mandamus” one by one. When discussing the motion for appointment of

a private investigator, the trial court initially said that the request was “untimely,”

then the following exchange took place:

      [Appellant]: On the Motion for a Private Investigator, this is—I need
      this as part of my defense because I need the investigator to do the
      investigative work that I need him to do on my case; and this was
      never brought up in Judge Carter’s court because he kept me in the
      holdover. So I need to—

      [Trial Judge]: You need to specify what it is that a private
      investigator would be investigating. What would he do for you?
      [Appellant]: Well, I need him to investigate the arresting officer on
      the percentage level of blacks that he has arrested because I am going
      on a level of racial profiling; and I need his arresting record.

      [Trial Judge]: Well, is that it?

      [Appellant]: And I also wanted to get the phone records of that night
      of when he called, supposedly he had called the D.A. to—

      [Trial Judge]: When he did what?

      [Appellant]: When he supposedly had called the D.A.
                                          5
       [Prosecutor]: I believe he is saying when the officer contacted D.A.
       intake to accept charges.

       [Trial Judge]: I see. Okay. Well, basically with regard to the calling
       the D.A., that will come out. You may ask him that. You may also
       ask with regard to what percentage, if any, he knows or remembers
       that he has arrested members of the African community.

Trial Proceedings

       Jury selection began immediately after the second Faretta hearing and the

rulings on appellant’s pretrial motions. After the jury was sworn, appellant asked

the trial judge why he, and not the jury, was going to determine punishment. The

trial court responded, “You didn’t file an election. If a person doesn’t file an

election, it goes automatically to the judge.” When appellant protested, the trial

court stated, “Well, that is the situation, sir. That is the dangers and disadvantages

of representing yourself.” The trial judge then recessed the proceedings until the

next day.

Appellant Moves to Withdraw Waiver of Counsel

       The next day, the following exchange took place between appellant and the

trial judge:

       [Appellant]: Well, I want to ask you one more question. Anytime
       during the trial, is it true that I can ask for assistance of counsel?

       [Trial Judge]: No, sir. Here is the situation. You are not entitled to
       hybrid representation.

       [Appellant]: I am not asking for that. I am asking for counsel.
                                          6
[Trial Judge]: Well, see, that is hybrid representation. Listen to me.
That is either whether they just sit there and they answer your
questions or they actually assist you.

[Appellant]: I am asking for—

[Trial Judge]: That is not allowed, Mr. Hicks; and I told you that.
Judge Carter went over that with you. I went over that with you.

[Appellant]: I am not talking about having hybrid representation. I
am talking about having an attorney representing me in this case
because I need representation because it is inadequate representation.

[Trial Judge]: Well, unfortunately you have indicated to me—and we
have already picked this jury—that you wanted to represent yourself.

[Appellant]: I was thinking about it; and you took that as a yes, but I
need—

[Trial Judge]: No, Mr. Hicks. I went over it several times; and finally
you said, “Yes,” unequivocally. You refused to sign the papers with
Judge Carter, but he granted your right even though you refused to
sign it. So that is one judge that granted your right because you asked
for it. I have now granted you that right. Mr. Hicks, I went over this
over and over and over again; and you finally told me, “Yes, that is
what I want to do.” So basically, that is where we are. Have a seat.
Have a seat.

[Appellant]: But anytime during the trial I can ask for representation.
Is that against the law?

[Trial Judge]: You may ask for it; but unfortunately we have picked
the jury; and you have waived that right now. I will not allow you to
speak any more about that. You objection to that and request is
denied, sir. Now, are you ready for this jury?

[Appellant]: I guess so.



                                  7
Although docket sheet entries suggest that appellant’s previously appointed trial

counsel, Lisa Andrews, was present in the courtroom, appellant never requested

that she be reappointed to represent him, and she was never appointed as standby

counsel and never made an appearance or announced ready at trial.

Conviction and Punishment

      The jury acquitted appellant on the charge of being a felon in possession of a

firearm, but convicted him of possession of a controlled substance.           After a

punishment hearing, the trial court found two enhancements true and assessed

punishment at 20 years’ confinement.

      This appeal followed.

                WITHDRAWAL OF WAIVER OF COUNSEL

      In appellant’s first point of error, he contends that the trial court’s denial of

his request to withdraw his waiver of the right to counsel violated his constitutional

rights. The Sixth Amendment of the federal constitution guarantees both the right

to counsel and the corresponding right to self-representation.             Faretta v.

California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); Hathorn v. State, 848

S.W.2d 101, 122–23 (Tex. Crim. App. 1992); see also Hatten v. State, 71 S.W.3d

332, 334 (Tex. Crim. App. 2002) (noting that Faretta rights are triggered when

accused contests guilt); TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon

2005) (recognizing right of accused to be heard by himself, through counsel, or

                                          8
both); Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.]

2004, pet. ref’d).

      In Faretta, the Supreme Court recognized that “[w]hen an accused manages

his own defense, he relinquishes . . . many of the traditional benefits associated

with the right to counsel” and concluded that in order to represent himself, an

“accused    must     ‘knowingly   and   intelligently’    forgo   those   relinquished

benefits.” 422 U.S. at 835, 95 S. Ct. at 2541. Such a decision, to be constitutionally

effective, must be made (1) competently, (2) knowingly and intelligently, and (3)

voluntarily. Godinez v. Moran, 509 U.S. 389, 400–401, 113 S. Ct. 2680, 2687

(1993); Faretta, 422 U.S. at 834–36, 95 S. Ct. at 2541.

      Appellant concedes that his waiver of the right to counsel met all

constitutional and statutory requirements. He contends, however, that by not

permitting him to withdraw that waiver, the trial court violated article 1.051(h) of

the Code of Criminal Procedure, which provides:

      A defendant may withdraw a waiver of the right to counsel at any
      time but is not entitled to repeat a proceeding previously held or
      waived solely on the grounds of the subsequent appointment or
      retention of counsel. If the defendant withdraws a waiver, the trial
      court, in its discretion, may provide the appointed counsel 10 days to
      prepare.

TEX. CODE CRIM. PROC. ANN. art. 1.051(h) (Vernon Supp. 2013).

      Appellant premises his argument on the trial court’s failure to appoint

counsel for him when he requested it on the morning of trial. An accused has the
                                          9
right to withdraw his waiver of the right to counsel. See Funderburg v. State, 717

S.W.2d 637, 642 (Tex. Crim. App. 1986). However, the right to waive self-

representation is not without 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, 95 S. Ct.

2541 n.46). An accused’s right to represent himself or choose his own counsel

cannot be manipulated so as to obstruct the orderly procedure in the courts or to

interfere with the fair administration of justice. Hubbard v. State, 739 S.W.2d 341,

344 (Tex. Crim. App. 1987). A decision of the trial court as to the effect that 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. Medley, 47

S.W.3d at 24.

      A criminal defendant who has waived the right to counsel but then seeks to

reclaim that right bears the burden of showing that his waiver would not (1)

interfere with the orderly administration of court business, (2) result in unnecessary

delay or inconvenience to witnesses, or (3) prejudice the State. Id. If the evidence

presented by defendant is rebutted by the State, the trial court, or the record, then

the trial court does not abuse its discretion in refusing to allow the right to be

reclaimed. Id.

                                         10
      Appellant relies on Morgan v. State, Nos. 01-94-00306-CR and 01-94-

00307-CR, 1995 WL 62843, at *1 (Tex. App.—Houston [1st Dist.] Feb. 16, 1995,

no pet.) (not designated for publication) to argue that the trial court erred by

refusing to allow him to withdraw his waiver of the right to counsel. In Morgan,

on the day appellant’s trial was to begin, his appointed counsel appeared on his

behalf and announced “ready.”         Id. The next day, after being admonished

according to Faretta, appellant voluntarily waived his right to counsel, and his

appointed counsel was then appointed as “stand-by” counsel. Id. After the direct

examination of the first witness, appellant orally moved to withdraw his waiver of

the right to counsel, which the trial court denied. Id. On appeal, this Court held

that appellant should have been allowed to withdraw his waiver of the right to

counsel because “[t]he counsel previously appointed to represent appellant . . . was

present and had announced ready” and “could have immediately entered the case

and represented appellant.” Id.

      Morgan, however, is distinguishable.        Here, the trial court conducted a

Faretta hearing over two weeks before the trial began, at which appellant

requested hybrid representation or appointment of stand-by counsel, which the trial

court denied.3 That same day, the trial court signed an order granting defendant’s



3
      A pro se defendant has no right to either standby counsel or hybrid representation.
      See United States v. Oliver, 630 F.3d 397, 413–14 (5th Cir. 2011), Robinson v.
                                          11
motion to proceed pro se, even though appellant refused to sign the waiver of the

right to counsel at that time. This case had already been reset for trial twice. On

the day of trial, the visiting judge held a second Faretta hearing, at which appellant

against asked for a standby attorney, which the visiting judge again denied, noting

on the record that “you may think that by doing this you are going to forestall the

disposition of this case. It won’t work that way.” The trial court then asked, “Do

you want to represent yourself? And this is the last time that I am going to ask

you,” to which appellant responded, “I really do.” At this point appellant had been

representing himself pro se for two weeks already, and he had picked his own jury,

which had already been sworn. It was not until appellant realized that he had

waived his right to have the jury assess punishment that he sought to revoke his

waiver of counsel. And, even if we assume that appellant’s previously-appointed

counsel was present in the courtroom, unlike the attorney in Morgan, she was

never appointed as standby counsel, she never announced ready, appellant never

requested that she be reappointed as his attorney, and nothing in the record

suggests that she was ready to proceed with trial that day.

      Under these circumstances, we hold that appellant has failed to bring forth a

sufficient record to sustain his burden to show an abuse of discretion by the trial

court. Accordingly, we overrule point of error one.

      State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Patrick v. State, 906 S.W.2d
      481, 498 (Tex. Crim. App. 1995).
                                         12
                    FAILURE TO HEAR PRO SE MOTIONS

        While appellant had counsel, the trial judge did not rule on appellant’s pro se

motions [those listed in his Writ of Mandamus] because appellant was not entitled

to hybrid representation.     After the trial court granted appellant’s motion to

proceed pro se at the first Faretta hearing, appellant inquired, “Do you want to

have that hearing on the writ?” To which, the trial court responded, “Like I said,

you have to follow Rules of Procedure. You’re on your own son.” Appellant

made no further response.

        On appeal, appellant argues that “[t]he district judge, [at the first Faretta

hearing], erred in failing to hear Mr. Hick’s motions because he granted the first

two and thereby left Mr. Hicks without counsel when he urged the remainder”

which “resulted in the court’s failure to give Mr. Hicks an opportunity to make a

threshold showing of his need for an investigator, in violation of his due process

rights . . . .”

        To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request,

objection, or motion. TEX. R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249,

265 (Tex. Crim. App. 1998) (op. on reh’g). Further, the trial court must have ruled

on the request, objection, or motion, either expressly or implicitly, or the

                                           13
complaining party must have objected to the trial court’s refusal to rule. TEX. R.

APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

Appellant did not object to the trial court’s refusal to rule on any of his motions at

the first Faretta hearing; thus, he may not now complain on appeal that the trial

court’s refusal to rule.

      Accordingly, we overrule appellant’s second issue.

                                 COURT COSTS

      In his third point of error, appellant contends there “is insufficient evidence

to support the court costs reflected in the judgment.” The record in this case

includes a judgment, to which is appended “Attachment A.” Attachment A is

entitled “ORDER TO WITHDRAW FUNDS FOR FINE/FEES/COURT COSTS”

and includes a three page computer printout of the fees assessed in this case. At

the bottom of page 1 of the printout, there is the signature of “Christine Baldwin,”

which is dated “11/7/12.”     On page 3 of the printout, there is a certification by

Chris Daniel, District Clerk of Harris County, Texas, that the document “is a true

and correct copy of the original record filed and or recorded” in his office, which is

signed by “CBaldwin Deputy” and is also dated “11/7/12.” Appellant does not

challenge the amount of costs assessed, but contends that the evidence is

insufficient, arguing that “while we learn from the certification of the third page of

the document that Christine Baldwin is a Deputy Clerk with the Harris County

                                         14
District Clerk’s office, her signature on the first page gives no indication as to

whether she is the officer who charged or was entitled to receive the costs.”

       In Cardenas v. State, 403 S.W.3d 377, 385 n.6 (Tex. App.—Houston [1st

Dist.] 2013, pet. granted) (designated for publication) this Court found a certified

copy of a cost bill signed by a deputy clerk to be sufficient evidence to support an

award of costs. Like the certified copy of the bill of costs in Cardenas, which was

signed by a deputy clerk on behalf of the clerk of the district court, the bill of costs

in this case is sufficient.

       Regarding appellant’s assertion that the assessment of costs is insufficient

because Baldwin signed and certified the bill of costs after the judgment was

signed, this Court considered and rejected that argument in Cardenas. Id.; see also

Garcia v. State, No. 01-11-00985-CR, 2013 WL 1368082, at *1–4 (Tex. App.—

Houston [1st Dist.] April 4, 2013, no pet.) (rejecting claim that cost bill must be

created before rendition of judgment).

       Accordingly, we overrule point of error three.




                                          15
                                CONCLUSION

      We affirm the trial court’s judgment.



                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                        16
