                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00023-CR


                     STEVEN DEWAYNE INGRAM, APPELLANT

                                           V.

                           THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 316th District Court
                                 Hutchinson County, Texas
                Trial Court No. 10,784, Honorable David Gleason, Presiding

                                    August 11, 2014

                            MEMORANDUM OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant Steven Dewayne Ingram appeals from his conviction by jury of the

offense of possession of a controlled substance, methamphetamine, in an amount less

than one gram and the resulting sentence of two years imprisonment in a state jail

facility. Through one issue, Ingram contends the trial court abused its discretion and

violated his constitutional rights by determining he “competently” waived the right to

counsel. We will affirm.
                                            Background


       Ingram was indicted by grand jury for possession of less than one gram of

methamphetamine1 in December 2011. The record is not clear when Ingram first raised

his intention to exercise his right to self-representation but the record does contain the

motion to withdraw filed by his court-appointed attorney in September 2012. Ingram

agreed to the motion, and his signature appears on it.                    One of the grounds for

withdrawal cited by counsel was “Steven DeWayne Ingram no longer desires that

Movant represent him and desires that he be allowed to represent himself.” The court

granted counsel’s motion to withdraw the following day.


       Ingram appeared pro se at subsequent hearings, and the court discussed with

him on those occasions his decision to represent himself. The court addressed the

subject with Ingram again on the day of trial, and at that time formally accepted Ingram’s

waiver of his right to counsel. Ingram plead not guilty, and the case was tried to a jury,

which convicted Ingram as charged in the indictment and assessed punishment as

noted. Now represented by appointed counsel on appeal, Ingram raises his single

appellate issue.


                                              Analysis


       Ingram argues on appeal the “trial court abused its discretion and thereby

deprived [him] of both due process and equal protection of law by holding that [he]

‘competently’ waived his right to counsel and then proceeded to a trial of all issues with

[Ingram] acting pro se.”

       1
           See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2012).

                                                  2
      We apply an abuse of discretion standard to our review of Ingram’s complaint

regarding the trial court’s handling of his invocation of the right of self-representation.

DeGroot v. State, 24 S.W.3d 456, 457-58 (Tex. App.—Corpus Christi 2000, no pet.).

We view the evidence in the light most favorable to the trial court's ruling, and we will

imply any findings of fact supported by the record and necessary to affirm the trial

court's ruling when, as here, the trial court did not make explicit findings. Chadwick v.

State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010).


      The Sixth and Fourteenth Amendments to the United States Constitution protect

a defendant's right to self-representation in a criminal proceeding. Moore v. State, 999

S.W.2d 385, 396 (Tex. Crim. App. 1999) (citing Faretta v. California, 422 U.S. 806, 818-

20, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)). "[A]n accused's right to proceed pro se

does not attach until he clearly and unequivocally asserts it." Hathorn v. State, 848

S.W.2d 101, 123 (Tex. Crim. App. 1992).


      “It is the defendant, not his lawyer or the State, who will bear the personal

consequences of a conviction. It is the defendant, therefore, who must be free

personally to decide whether in his particular case counsel is to his advantage. While

we may be skeptical of his election knowing that he may conduct his defense ultimately

to his own detriment, his choice must be honored.” Faretta, 422 U.S. at 833. But a

defendant’s decision to forego the benefits of representation by counsel must be made

“knowingly and intelligently.” Faretta, 422 U.S. at 835, quoting Johnson v. Zerbst, 304

U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). To that end, the defendant 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."

                                            3
Faretta, 422 U.S. at 835, quoting Adams v. United States ex rel. McCann, 317 U.S. 269,

279, 63 S. Ct. 236, 87 L. Ed. 268 (1942). While Faretta does not mandate an inquiry

concerning appellant's age, education, background or previous mental health history in

every instance where an accused expresses a desire to represent himself, Martin v.

State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982), the record must contain proper

admonishments concerning pro se representation and any necessary inquiries of the

defendant so that the trial court may make "an assessment of his knowing exercise of

the right to defend himself." Faretta, 422 U.S. at 836; see also Blankenship v. State, 673

S.W.2d 578, 580 (Tex. Crim. App. 1984). Also, “Faretta does not authorize trial judges

across this state to sit idly by doling out enough legal rope for defendants to participate

in impending courtroom suicide; rather, judges must take an active role in assessing the

defendant's waiver of counsel.” Id.


       Generally, the record must be “sufficient for the reviewing court to make an

assessment that appellant knowingly exercised his right to defend himself.

Admonishments of defendants who wish to proceed pro se should include an effort to

ensure that the defendant is aware of the practical disadvantages of representing

himself. The defendant should be aware 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.” Johnson v. State, 760 S.W.2d 277, 278-79 (Tex. Crim. App.

1988). As Faretta held, “his eyes should be open to the fact that, while it is undoubtedly

his right, he is about to embark on a risky course.” Id. at 279. In the end however, a

defendant must be allowed to represent himself "if he truly wants to do so." Faretta, 422

U.S. at 817. Thus, if the defendant persists in seeking to proceed pro se, the court must


                                             4
allow self-representation. Burgess v. State, 816 S.W.2d 424, 428-29 (Tex. Crim. App.

1991).


         The record here demonstrates the trial court took an active role in assessing

Ingram’s assertion of his right to self-representation. At an October 2012 hearing, the

court questioned Ingram, asking, “I want to make sure -- I know we've been through this

before, but I want to make sure that you are aware of all the dangers and pitfalls of

representing yourself.” In response to the court’s questioning, Ingram was adamant in

his choice to do so. The court revisited Ingram’s choice to proceed pro se at another

hearing the same month, specifically reminding him he would be required to observe the

rules of evidence and of procedure. On that occasion, the prosecutor also questioned

Ingram on that subject, addressing Ingram’s understanding of the legal proceedings

including jury selection and courtroom procedures. At one point during that exchange,

Ingram stated:


                A. I studied the law about a half a year, so I mean I don’t have that
         much experience as you. I’m not a full attorney but I do understand what’s
         going on and what happened to me in the past. It’s not fair when it’s all
         one sided.

                 Q. And based upon that, I want this to be very clear - - the State’s
         interest is that you have a fair hearing and a fair trial. I would prefer, as the
         State, that you have counsel to assist you in this case to make sure your
         rights are fully protected. That’s my interest.

                A. I understand my rights.


         Ingram later reiterated, “I don’t want another attorney...” After further questioning

by the State about his understanding of the proceedings, Ingram repeatedly told the

court he “understand[s] those things.” The prosecutor told the court, ”[w]e are satisfied


                                                5
that [Ingram] does not want representation. However, we are not satisfied that he is

competent to represent himself.”2 The prosecutor asked the trial court to appoint an

attorney to assist Ingram. The trial judge stated, “I think he’s competent to make the

decision. I think he’s foolish to make that decision, but he’s competent to. And if you

insist upon representing yourself, Mr. Ingram, I will permit it.”


        On the day of trial, the court again questioned Ingram about his choice to

proceed pro se. The following exchange took place:


        THE COURT:              Okay. I'm going to call Case No. 10,784 for a jury trial.
                                This is the State of Texas against Steven DeWayne
                                Ingram. Is the State ready?

        MR. SNIDER:             State is ready, Your Honor.

        THE COURT:              And, Mr. Ingram, are you ready?

        THE DEFENDANT: Yes.

        THE COURT:              Okay. Before we . . . begin jury selection and things, I
                                want to, one more time, go through your right to
                                counsel. Okay? You do fully understand that you have
                                the right to have a lawyer to represent you in this
                                matter?

        THE DEFENDANT: I do understand.

        THE COURT:              Okay. And you understand that I would appoint
                                somebody to represent you if you wanted one,
                                correct?

        THE DEFENDANT: Correct.


2
  Ingram’s brief argues this statement by the prosecutor shows Ingram did not fully understand the
consequences of his decision of self-representation and alludes to the possibility that Ingram was not
mentally competent to make such a decision. From the context, it is clear to us that by his choice of the
word “competent” the prosecutor was referring to Ingram’s competence to represent himself at trial, not
his competence to waive his right to counsel. See Morales v. State, 07-10-00531-CR, 2011 Tex. App.
LEXIS 9736 (Tex. App. Amarillo, 2011) (memo. op., not designated for publication) citing Godinez v.
Moran, 509 U.S. 389, 399 (1993) (discussing competence required to exercise rights under Faretta).
Ingram’s mental capacity was not questioned during the proceedings.

                                                   6
          THE COURT:               Okay. And through our conversations the last couple
                                   of weeks, you have told me repeatedly that you want
                                   to represent yourself?

          THE DEFENDANT:Yes.

          THE COURT:               You do not want a Court-appointed lawyer?

          THE DEFENDANT:No.

          THE COURT:               You do not want a lawyer appointed to sit and give
                                   you advice?

          THE DEFENDANT:No.

          THE COURT:               You just want to do it yourself?

          THE DEFENDANT:Yes.

          THE COURT:               All right. And you have signed now a waiver of your
                                   right to counsel and a request for a jury trial, and
                                   you've sworn to that before a notary?

          THE DEFENDANT:Yes.

          THE COURT:               Do you understand you've been advised of all the
                                   dangers and pitfalls and things like that?

          THE DEFENDANT:Yes.

          THE COURT:               You do fully understand that you have the right to
                                   represent yourself if you wish to do so, but you
                                   understand that you'll be held to the same rules --

          THE DEFENDANT:Yes, sir.

          THE COURT:               -- and everything as if you were a lawyer?

          THE DEFENDANT:Yes, sir.

          THE COURT:               Okay. I'm going to approve your Waiver of Right to
                                   Counsel then and we'll be able to begin shortly. 3

3
    The Waiver of Right to Counsel and Request for Jury Trial provides, in relevant part:

             The Court has advised me of the offense that I am charged with in this case and the
          range of punishment prescribed for such offense. And, although I have been advised by
          the Court of the dangers and disadvantages of self-representation, and fully
          understanding the dangers and disadvantages of proceeding without an attorney, and

                                                       7
        From the record before us, we find Ingram very clearly expressed his desire to

represent himself on several separate occasions. The trial court and the State engaged

in lengthy conversations with Ingram establishing he was aware of the practical

disadvantages of representing himself, identifying legal concepts he was not familiar

with, making him aware of rules and procedures he would be required to follow, and

informing him he would not be granted special consideration.                     See Johnson, 760

S.W.2d at 278-79. Despite these repeated admonishments, Ingram insisted he wished

to represent himself and signed a waiver of counsel expressing the same insistence.


        Courts have found such express statements to be clear and unequivocal

assertions of the right to represent oneself. See, e.g., Hathorn, 848 S.W.2d at 123

("Thus, I would reurge the Court to allow me to proceed pro se, under [F]aretta versus

California."); Funderburg v. State, 717 S.W.2d 637, 639 (Tex. Crim. App. 1986) ("I'm

saying I would like to represent myself . . . I would still like to represent myself.");

Blankenship, 673 S.W.2d at 580 ("Yes, sir. I would like to pro se my own case.");

Kombudo v. State, 148 S.W.3d 547, 551 (Tex. App.—Houston [14th Dist.] 2004) ("I

would like to proceed pro se."), vacated on other ground, 171 S.W.3d 888 (Tex. Crim.

App. 2005), appeal perm. abated, No. 14-03-00738-CR, 2006 Tex. App. LEXIS 287

(Tex. App.—Houston [14th Dist.] Jan. 12, 2006, no pet.) (mem. op., not designated for

publication); Birdwell, 10 S.W.3d at 76 ("[Defendant] wants me to tell you he wants to

________________________
      even though the Court has offered to Court appoint an attorney to represent me in this
      cause, I refused this offer. I still wish to give up my right to an attorney and represent
      myself in this case.

        I HEREBY WAIVE MY RIGHT TO COUNSEL AND DEMAND THAT I BE ALLOWED TO
        REPRESENT MYSELF IN THIS CASE WITHOUT ANY ASSISTANCE OR ADVICE
        FROM AN ATTORNEY OR LAWYER.


                                                   8
represent himself."); Glover v. State, No. 09-06-00325-CR, 2008 Tex. App. LEXIS 7321

(Tex. App.—Beaumont Aug. 27, 2008, no pet.) (mem. op., not designated for

publication) ("Yes sir, I wish to proceed pro se . . . I understand the pitfalls of

representing myself.").


       Finding neither an abuse of discretion nor any violation of Ingram’s constitutional

rights in the trial court’s handling of his exercise of the right of self-representation, we

overrule Ingram’s issue on appeal and affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice




Do not publish.




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