                                   NO. 07-12-0036-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                   OCTOBER 1, 2012


                             MICHAEL ANTHONY FOSTER,

                                                                  Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

            FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY;

         NO. 1172868R; HONORABLE GEORGE GALLAGHER, PRESIDING


                                 Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Before us is the second chapter of the prosecution of appellant, Michael Anthony

Foster. He was originally convicted of causing serious bodily injury to a child and was

sentenced to fifty years imprisonment. We reversed that conviction because the State

conceded error. Foster v. State, 07-10-0030-CR, 2010 Tex. App. LEXIS 6781 (Tex. App.

–Amarillo Aug. 18, 2010, no pet.) (not designated for publication). That is, both we and

the State agreed with his argument that the trial court wrongfully denied him his

constitutional right to represent himself. Upon retrial, appellant was again convicted, but
sentenced to life in prison and assessed a $10,000 fine. Now appellant argues that the

trial court erred in allowing him to represent himself without affording him proper

admonishments against doing so and in increasing his punishment. We affirm.

       Issue 1 – Right of Self-Representation

       Having succeeded in obtaining a reversal of his first conviction due to being

denied a right of self-representation, appellant now contends that the trial court failed to

conduct a thorough inquiry to ensure that he understood the “nature of the allegations

against him, the potential range of punishment, and many of the ‘dangers and

disadvantages of self-representation.’” We overrule the issue.

       The State suggests that because the trial court re-appointed the attorney who

represented appellant in his first trial to assist him in his second, the admonishments

now sought by appellant were not required. Walker v. State, 962 S.W.2d 124, 126 (Tex.

App.–Houston [1st Dist.] 1997, pet. ref’d) (so holding); Robertson v. State, 934 S.W.2d

861, 864 (Tex. App.–Houston [14th Dist.] 1996, no pet.) (so holding); accord Sumrell v.

State, Nos. 05-09-00238&00239-CR, 2010 Tex. App. LEXIS 6451, at *6-7 (Tex. App.–

Dallas August 10, 2010, pet. ref’d) (not designated for publication) (so holding); but see,

Grant v. State, 255 S.W.3d 642, 647 (Tex. App.–Beaumont 2007, no pet.) (suggesting

otherwise). Yet, that is not a matter we need address for the record itself reveals that

appellant’s decision to proceed was knowing, voluntary, and intelligent.

       Again, this is not appellant’s first rodeo, as some would say. He had been tried

and convicted for the same crime. So too had he been sentenced. Thus, he had been

afforded opportunity to witness a dress rehearsal of what was to come. Matters such as

the manner of proceeding, the nature of the charges being tried, the presentation of and

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objection to evidence, the nature and content of the prospective jury instructions, jury

argument, and the rather weighty punishment to which he was subject were all made

known to him before. To that, we add instances in the record indicating that he knew to

ask for assistance from his standby counsel at certain times. He also knew that there

were certain things that he could not handle himself and, therefore, needed counsel to

represent him, such as when he wanted to appeal the trial court’s denial of his writ of

habeas corpus. Yet, despite this experience and the trial court’s repeated inquiries

about whether he wanted to actually proceed pro se, appellant said yes.

       It may be that appellant was not as versed in the law as an attorney would have

been. It may be that he did not have the experience of a trained litigator or orator. It

may be that an attorney would have done a better job. Nonetheless, the totality of the

circumstances before us are enough to reasonably support the conclusion that he knew

what he was doing and that the decision to act on his own behalf was voluntary and

intelligent. Grant v. State, 255 S.W.3d at 647 (stating that we look to the totality of the

circumstances to assess whether waiver of counsel was knowing, intelligent and

voluntary).

       Issue 2 – Increase in Punishment

       After the jury found appellant guilty at his first trial, the trial court sentenced him

to fifty years confinement. At the conclusion of his second trial, the court sentenced him

to life imprisonment and assessed a $10,000 fine. Because his second sentence was

greater than the first, he contends the trial court’s action violated his due process rights.

In other words, he believes that the trial court retaliated against him for successfully

prosecuting an appeal of his prior conviction. We overrule the issue.

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      We find information presented at the second trial but omitted at the first could

reasonably justify the greater punishment. This is of import because when a judge

imposes a more severe sentence on a defendant after retrial, the reasons for the

greater punishment must appear in the record and must be based on identifiable

conduct on the defendant’s part. North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct.

2072, 23 L.Ed.2d 656 (1969). And, it is not necessary that the conduct occurred after

the original sentencing. Texas v. McCullough, 475 U.S. 134, 142, 106 S.Ct. 976, 89

L.Ed.2d 104 (1986).

      The additional and identifiable conduct alluded to above consisted of appellant

informing a CPS worker to “get the ‘Fuck’ off his property” and that he “did not have the

time to deal with his wife’s Mental Health” or his four “Fucking children” when the worker

went to investigate the well being of the children. At the time, the worker had told

appellant that his wife needed to undergo a psychological examination “immediately.”

The statement uttered by appellant was quite telling given the nature of the injuries to

the child for which appellant was held responsible. They arose from appellant’s failure

to care for his infant child. A paramedic found the baby malnourished, dehydrated,

lethargic, unresponsive, and limp while in appellant’s home. The infant’s muscles had

started to atrophy “to the point that we could see bone structures . . . he was covered in

a rash or eczema.” He was also wrapped in a blanket with his arms behind him.

Moreover, appellant initially refused to allow the child to be taken to the hospital but

eventually acquiesed when the medic insisted. Appellant’s other children appeared in

relatively good health, however.



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       These circumstances could suggest that appellant’s rather wanton and callous

attitude was limited to the youngest child. But, given the previously unheard evidence

of appellant’s outburst to the DPS worker, the trial court could well have concluded that

appellant’s ill mindset encompassed all his family. Allowing one child to suffer was bad

enough. But, discovering that a parent and spouse lacked time to “deal” with any of his

wards or wife and invoking the modifier he did to so describe those children was new

data that the trial court took care to disclose as influencing his decision to levy a greater

sentence. The trial court also relied on the testimony of several witnesses that they

would have assisted appellant in caring for his family if he had asked for it allowing the

court to conclude that he was lying in his assertion that he was having problems coping

with his situation. We find no retaliation or vindictiveness on the part of the trial court,

only a decision that can be justified by the record.

       Accordingly, the judgment is affirmed.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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