Affirmed and Opinion Filed May 30, 2014




                                         Court of Appeals
                                                         S      In The


                                  Fifth District of Texas at Dallas
                                                     No. 05-12-01575-CR

                                     JASON LATROY LEONARD, Appellant
                                                   V.
                                       THE STATE OF TEXAS, Appellee

                               On Appeal from the 401st Judicial District Court
                                            Collin County, Texas
                                   Trial Court Cause No. 401-82469-2011

                                        MEMORANDUM OPINION
                                 Before Justices Bridges, Francis, and Lang-Miers
                                            Opinion by Justice Bridges
          Appellant Jason Latroy Leonard appeals from his conviction for aggravated sexual

assault, enhanced by a prior sexual assault conviction, and accompanying sentence of life in

prison. In two issues, appellant contends the trial court (1) erred by denying appellant’s request

for self-representation and (2) abused its discretion when it overruled appellant’s motion to

suppress evidence. We affirm.

                                                           Background

          Avery Dole1 and appellant were introduced by a mutual acquaintance called “Kelly.”

Dole bought cocaine from Kelly at a bar. Dole later called Kelly to bring her more cocaine. He




   1
       Avery Dole is the pseudonym chosen by the complainant.
did so and introduced Dole to appellant, who indicated he could supply Dole with cocaine in the

future.

          On July 13, 2011, Dole asked appellant to bring her $100 worth of cocaine to her home.

Appellant arrived sometime after 11:00 p.m. After providing appellant the $100, appellant and

Dole snorted cocaine from her kitchen counter. Appellant surreptitiously videotaped her sniffing

the cocaine with his cell phone. Appellant and Dole talked on her back porch and, around 1:00

a.m., Dole gave appellant her debit card to buy her cigarettes. When appellant returned, they

both sniffed more cocaine, and appellant suggested they have sex. Dole refused. Appellant then

played the video of her sniffing cocaine and another recording of her talking about her husband

on the back porch. Appellant threatened to show her husband the videos if she did not have sex

with him, and Dole refused. Appellant then went to the restroom.

          Dole testified that, when he came out of the restroom, appellant punched her in the head

and dragged her by the hair into the kitchen. Dole stated appellant put her in a chokehold and

said, “I’m gonna leave after I get what I want and you’re what I want.” He put one of Dole’s

kitchen knives to her throat and led her to the living room, where he made her perform oral sex.

Dole testified that appellant then pushed Dole down and the couch and raped her vaginally. After

appellant ejaculated, he said he “wasn’t stupid,” so she would have to take a shower before he

would leave. As she came out of the shower, he videotaped her and took a still photo of her.

Dole’s five-year-old son had gotten up and expressed concern for his mother. Dole testified

appellant held the knife to the back of the child’s neck while his back was turned. Dole reassured

her son and coaxed him into the living room to watch cartoons.

          Appellant then pulled Dole into the half bathroom and closed the door. Dole testified

appellant forced her up onto the pedestal sink. Appellant then penetrated her vagina again, while

covering her face and making a video recording with his cell phone. After appellant ejaculated,

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Dole ran out of the bathroom with the knife and placed it on the kitchen counter. Appellant then

dressed and sat in the living room with Dole and her two sons. Once appellant was informed a

home appraiser was arriving soon, he left.

       Dole then called a friend, who drove her to an E-Care facility. The police arrived, and she

reported she had been sexually assaulted. Detective Randy Norton was one of the officers who

responded to the call from the E-Care facility. Norton explained he observed Dole’s black eye,

which was starting to swell, and some scratches on her back. Based on her injuries, Norton had

her transported to the hospital to have a rape kit examination. Dole testified she told the police

about the videos on appellant’s phone and identified appellant in a photo lineup. Based upon the

information and identification of appellant in the photo lineup, police executed an arrest warrant

for appellant.

       Sergeant Heath Peacock with the Texas Department of Public Safety was one of the

officers assigned to execute the warrant. Peacock explained that, while conducting surveillance

at appellant’s home, appellant exited his residence and was in the front yard speaking on a cell

phone. Because the officers were concerned appellant might flee in his nearby car, Peacock

blocked appellant’s vehicle from exiting the driveway with his own car. Peacock’s lights were

flashing red and blue. At that point, appellant fled on foot. One of the officers then kicked in the

locked front door of appellant’s home, and Peacock saw appellant exiting the rear of the house

through a sliding glass door. Peacock pursued appellant, who jumped over a fence. Peacock

then lost sight of appellant, but presumed appellant had re-entered his home through an open

garage. Peacock then began searching the rooms of appellant’s home and announced “police” in

an attempt to make a safe recovery of appellant. Appellant walked out of a closet with his hands

up. Appellant’s cell phone was on the dresser immediately accessible from the closet, and the

police seized it as evidence. Norton testified that, after appellant was Mirandized, appellant

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insisted he watch the video of appellant and Dole snorting cocaine. Norton then obtained a

search warrant for the contents of the phone, including the videos and pictures. Appellant later

moved to suppress all physical evidence including appellant’s cell phone and its contents, but the

trial court denied the motion.

       Appellant’s first trial ended in a hung jury. Although the trial judge had admonished

appellant to not make outbursts, during his second trial, appellant spoke out while the jury was in

the courtroom. As the State was offering a knife, appellant said, “That’s not the same knife,

Your Honor, y’all had the last time.” Also, after appellant’s attorney had cross-examined Dole

and passed the witness, appellant raised his hand and addressed the judge, stating, “Under Faretta

versus California I want to go pro se, Your Honor.” The trial court admonished appellant to say

nothing further. The State then finished its redirect and, in a hearing outside the presence of the

jury, the trial court instructed appellant he would not be allowed to question Dole further.

       After Dole’s examination, three State witnesses remained. In a hearing outside the

presence of the jury, appellant told the court he wanted to question the defense witnesses and

give his own closing argument.       The trial court asked appellant questions to ascertain his

education and familiarity with the rules of evidence and his competence to represent himself, but

the record reflects appellant frequently evaded the judge’s questions or refused to answer his

questions. Ultimately, appellant gave up, making statements, such as, “I don’t have a chance

with this” and “I give up, man.” When the trial court started explaining the dangers and

disadvantages of self-representation, appellant made statements, such as, “Let’s go home, man. .

. . Forget it.” Ultimately, the trial judge indicated that, if appellant was not going to answer the

court’s questions, he could not “make an appropriate determination as to whether or not to let

[appellant] represent [him]self” or whether appellant “fully [understood] the dangers and




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disadvantages of self-representation.” Because the court could not make the determination due

to appellant’s “lack of cooperation,” his request to represent himself was denied.

          The jury found appellant guilty and, after finding the allegation of a prior conviction

true,2 the trial court assessed appellant’s punishment at life in prison.

                                                                  Analysis

Self-Representation

          In his first issue, appellant contends the trial court erred by denying appellant’s request

for self-representation. Federal and state law guarantee a criminal defendant the right to the

assistance of counsel as well as the right to waive counsel and represent himself. See U.S.

CONST. amend. VI & XIV; TEX. CONST. art. I, §10; TEX. CODE CRIM. PROC. ANN. art. 1.05

(West 2005) (accused “shall have right of being heard by himself, counsel, or both”); Faretta v.

California, 422 U.S. 806, 818–820 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App.

2002). A defendant’s right to counsel, however, may not be manipulated to obstruct the judicial

process, and it does not require the trial court to appoint counsel agreeable to the defendant. See

Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Maes v. State, 275 S.W.3d 68, 71

(Tex. App.−San Antonio 2008, no pet.).

          In Faretta, the U.S. Supreme Court established the independent right of self-

representation, in addition to the previously recognized right to waive the assistance of counsel.

Faretta, 422 U.S. 806. A defendant may choose to proceed pro se by exercising his right of self-

representation. See, e.g., TEX. CONST. art. 1, § 10 (“[an accused] shall have the right of being

heard by himself”); Faretta, 422 U.S. at 818–820 (1975); Moore v. State, 999 S.W.2d 385, 396

(Tex. Crim. App. 1999). When the right of self-representation was established in Faretta, the

Supreme Court stated that “[a]lthough a defendant need not himself have the skill and experience

   2
       Appellant was previously convicted of sexual assault of a child in 2001.



                                                                      –5–
of a lawyer in order to competently and intelligently choose self-representation, he should be

made aware of the dangers and disadvantages of self-representation. . . .” Faretta, 422 U.S. at

835; see also Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). While it is

well settled that a defendant in a criminal case has the right to represent himself without the

assistance of counsel, in order for the right of self-representation to be adequately asserted, the

right must be asserted in a timely manner, namely, before the jury is impaneled. See Faulk v.

State, No. 01-09-00116-CR; 2011 WL 2089644, at *3 (Tex. App.−Houston [1st Dist.] May 19,

2011, pet ref’d) (citing McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997); Ex Parte

Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992)).

       Here, the record reflects appellant did not assert his right to self-representation until mid-

way through the examination of Dole (the State’s ninth witness).            Appellant contends he

expressed his dissatisfaction with appointed counsel prior to trial.          However, expressing

dissatisfaction with appointed counsel is not the same as an unequivocal request for self-

representation.   See Faretta, 422 U.S. at 835.       We conclude appellant’s request for self-

representation, which was made after the jury was impaneled, was untimely. See Faulk, 2011

WL 2089644, at *3. We overrule appellant’s first issue.

Motion to Suppress

       In his second issue, appellant complains the trial court abused its discretion when it

overruled appellant’s motion to suppress evidence. Specifically, appellant argues the seizure and

subsequent search of his cell phone were unlawful. However, before we can address the merits

of the search and seizure, we must first determine whether appellant preserved error.

       An adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to

preserve error on appeal, and a defendant need not specifically object to the evidence when it is

later offered at trial. See Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). But he

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must also take care not to affirmatively indicate he has “no objection” to the evidence that he

challenged in his pretrial motion to suppress when it is later offered at trial, for the court of

criminal appeals has held such an affirmative statement constitutes “waiver” of the right to raise

on appeal the error that was previously preserved. See id.; Estrada v. State, 313 S.W.3d 274, 302

(Tex. Crim. App. 2010); Swain v. State, 181 S.W.3d 359, 367-68 (Tex. Crim. App. 2005)).

       The court of criminal appeals has recently provided additional guidance on this issue,

indicating that the rule that a later statement of “no objection” will forfeit earlier-preserved error

is context-dependent, and we must consider it in the context of the entirety of the record. See id.

at 885. If the record as a whole plainly demonstrates that the defendant did not intend, nor did

the trial court construe, his “no objection” statement to constitute an abandonment of a claim of

error that he had earlier preserved for appeal, the appellate court should not regard the claim as

“waived,” but should resolve it on the merits. See id. On the other hand, if from the record as a

whole the appellate court simply cannot tell whether an abandonment was intended or

understood, then, consistent with prior case law, it should regard the “no objection” statement to

be a waiver of the earlier-preserved error. See id. Under the latter circumstances, the affirmative

“no objection” statement will, by itself, serve as an unequivocal indication that a waiver was

both intended and understood. See id. at 885-86.

       Therefore, we turn to the context of the record before us. In his motion to suppress,

appellant sought to suppress “all physical evidence including, but not limited to, [appellant’s]

cellular phone” and “[a]ll photographs, digital still images and videotaped images taken of the

physical evidence and the places or persons searched by law enforcement officers.” Appellant’s

motion to suppress was denied by the trial court. Prior to appellant’s arraignment at the second

trial, the trial judge made the following relevant remarks:

       Well, I’ve already ruled on the pre-trial hearing. We’re not gonna have another
       pre-trial hearing, another Motion to Suppress. Those rulings are all the same.
                                                 –7–
           Those rulings still stand. We don’t need to reinvent the wheel just because the last
           jury hung up.

           …

           I assume [defense counsel] will, at the appropriate time, the last -- like he did in
           the last trial, you know, if he makes some vague, nebulous objection to the effect
           of, you know, Your Honor, I renew my previous objections, or the objections that
           I have previously made, I will understand that, and I understand that to include
           my rulings on the Motion to Suppress, so he’s not waiving anything. And he
           doesn’t need to go into great detail in front of the jury that would have the
           potential prejudicial effect for Mr. Leonard. If he makes some general reference, I
           will understand what that is. I’ve talked with the Court of Appeals now, so they
           should understand that that’s the understanding the trial court has with the
           lawyers, so nothing is waived.

When the State offered the phone that had been the subject of the motion to suppress, defense

counsel “reurge[d] [his] previous objections regarding seizure of the phone,” which was

sufficient to preserve error. However, when the State later offered several images and videos

derived from the phone at issue, including the video of the alleged sexual assault in the

bathroom, appellant affirmatively stated, “no objection.” The State has referred us to the record,

in which 14 images or videos from the phone at issue were offered as exhibits, and defense

counsel stated there was “no objection.” Specifically, the State refers this Court to five separate

instances in which it offered images or video from appellant’s cell phone and appellant stated,

“no objection.”3 Our review of the record also shows that the remaining photo evidence from the

cell phone, offered on two separate occasions (Exhibits 50, 51, 52 and 53 and then Exhibits 26

and 27) were also offered with appellant’s response of “no objection.” In light of the trial

judge’s comments and our review of the record as a whole, we cannot determine whether an

abandonment was intended or understood. See Thomas, 408 S.W.3d at 885. Thus, under these


     3
       The State refers us to multiple offers of exhibits in which the appellant responded, “no objection.” For example, the State offered Exhibits
54, 55, and 56 (a photograph and 2 videos) at one time. The State later offered Exhibits 57 and 58 (a photograph and a video). The State then
offered Exhibits 59, 60, and 61 (2 photographs and the CD containing video files from the cell phone) together. The State then offered Exhibit 28
(a photograph). Next, the State offered Exhibit 29 (a photograph). Finally, the State offered Exhibits 30, 31, 32 and 33 (4 photographs) together.
Each offer is followed by a statement of “no objection” by appellant.



                                                                      –8–
circumstances, the court of criminal appeals has instructed that the affirmative “no objection”

statements serve as an unequivocal indication that a waiver of the earlier-preserved error was

both intended and understood. See id. at 885-86. We overrule appellant’s second issue.

                                          Conclusion

       Having overruled appellant’s two issues, we affirm the judgment of the trial court.




Do Not Publish
TEX. R. APP. P. 47
121575F.U05




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




                                              –9–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

JASON LATROY LEONARD, Appellant                   On Appeal from the 401st Judicial District
                                                  Court, Collin County, Texas
No. 05-12-01575-CR       V.                       Trial Court Cause No. 401-82469-2011.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices Francis and Lang-Miers
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 30, 2014




                                                /David L. Bridges/
                                                DAVID L. BRIDGES
                                                JUSTICE




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