                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-14-00252-CR

                                         Philip Joseph GARAY,
                                                Appellant

                                                  v.
                                                 The
                                         The STATE of Texas,
                                               Appellee

                      From the 175th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2013CR2843
                             Honorable Mary D. Roman, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 22, 2015

AFFIRMED

           Philip Joseph Garay appeals his conviction for the offense of driving while intoxicated,

third or subsequent offense, arguing that the trial court erred in refusing to give him ten days to

prepare for trial after he waived counsel, in violation of article 1.051(e) of the Texas Code of

Criminal Procedure. We affirm the judgment of the trial court.

                                             BACKGROUND

           Garay was indicted for the offense of driving while intoxicated, third or subsequent offense.

At the fifth trial setting, Garay appeared with his retained counsel. At that time, Garay announced
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that he wished to continue pro se. The trial court admonished Garay about the risks of representing

himself, and asked him whether he was still willing to go forward. Garay answered affirmatively.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (West Supp. 2014). The trial court then asked,

“[d]o you understand what you have to cover during jury selection?” Garay answered, “[y]es, I

do, but I’m not prepared to do that today, though.” The trial court explained that it was “not

waiting for [Garay] to become trained to do jury selection” and that the case would proceed when

the jury panel returned at 1:30. Garay replied, “I’m ready to do that.” The trial court once again

warned Garay of the risks of representing himself. Garay informed the trial court that he would

be able to proceed so long as he had assistance from standby counsel.

       Upon returning from a recess, Garay again asked the trial court for “at least a day to get

[his] bearings together.” The trial court denied the request. Garay signed a waiver of his right to

counsel, and jury selection began. At the completion of trial, the jury found Garay guilty as

charged in the indictment, and the trial court sentenced him to twenty-five years’ imprisonment.

                                             ANALYSIS

       In his sole issue on appeal, Garay claims that the trial court erred by not granting him time

to prepare for trial after he waived counsel, thus violating the notice provision of article 1.051(e)

of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 1.051(e) (West Supp.

2014). The statute provides:

       An appointed counsel is entitled to 10 days to prepare for a proceeding but may
       waive the preparation time with the consent of the defendant in writing or on the
       record in open court. If a nonindigent defendant appears without counsel at a
       proceeding after having been given a reasonable opportunity to retain counsel, the
       court, on 10 days’ notice to the defendant of a dispositive setting, may proceed with
       the matter without securing a written waiver or appointing counsel. If an indigent
       defendant who has refused appointed counsel in order to retain private counsel
       appears without counsel after having been given an opportunity to retain counsel,
       the court, after giving the defendant a reasonable opportunity to request
       appointment of counsel or, if the defendant elects not to request appointment of
       counsel, after obtaining a waiver of the right to counsel pursuant to Subsections (f)
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       and (g), may proceed with the matter on 10 days’ notice to the defendant of a
       dispositive setting.

Id.

       The primary objective of the statute is to “ensure the indigent defendant receives appointed

counsel who is prepared for the proceeding.” Marin v. State, 891 S.W.2d 267, 272 (Tex. Crim.

App. 1994). Article 1.051(e) applies to three categories of defendants: (1) the indigent defendant

who receives appointed counsel; (2) the nonindigent defendant who appears without counsel after

having been given a reasonable opportunity to retain counsel; and (3) the indigent defendant who

has refused appointed counsel in order to retain private counsel who appears without counsel. See

TEX. CODE CRIM. PROC. ANN. art. 1.051(e). Garay does not assert that he was indigent; thus, the

first and third categories do not apply. The second category is also inapplicable because Garay

appeared at trial with retained counsel who had been involved in the case for nearly a year. Garay

voluntarily elected to proceed pro se and to have retained counsel act as standby counsel. Thus,

the statutory requirement for ten-days’ preparation simply does not apply in this situation.

       In any event, we address Garay’s contention that he falls under article 1.051(e)’s second

category because he effectively appeared “without counsel” when he decided to represent himself

on the first day of trial. A similar situation was presented in Lacy v. State, No. 03-00-00699-CR,

2001 WL 1298821 (Tex. App.—Austin Oct. 25, 2001, no pet.) (mem. op., not designated for

publication). On the day trial began, Lacy appeared with appointed counsel but then asked to

represent himself. Id. at *1. The motion was granted, but the trial court ordered appointed counsel

to remain as standby counsel. Id. Jury selection began immediately thereafter. Id. On appeal,

Lacy argued that he should have been given ten days to prepare for trial following his waiver of

counsel. Id. The Austin Court of Appeals disagreed, and held that article 1.051(e) does not grant

a preparation period to a defendant who elects to represent himself. Id. at *2. Further, the court


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held that when a defendant is represented by more than one attorney, as with standby counsel, the

statute’s preparation provision is satisfied when at least one of the attorneys was afforded the

statutory preparation time. Id.; Roney v. State, 632 S.W.2d 598, 601 (Tex. Crim. App. 1982).

Because Lacy’s standby counsel was appointed more than ten days before the proceedings began,

article 1.051(e) was satisfied. Lacy, 2001 WL 1298821, at *2 (citing Johnson v. State, 653 S.W.2d

324, 328 (Tex. App.—San Antonio 1983), aff’d, 760 S.W.2d 277 (Tex. Crim. App. 1988)). Here,

although Garay appeared with retained counsel instead of appointed counsel, he too requested to

represent himself on the day of trial and had the assistance of standby counsel who was afforded

the statutory preparation time. Thus, assuming article 1.051(e) does apply, there was no violation

of its requirements. Accordingly, we overrule Garay’s issue on appeal, and affirm the judgment

of the trial court.


                                                     Rebeca C. Martinez, Justice


Do Not Publish




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