                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00086-CR


CHUCK ALLEN LITTLE                                                       APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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                          MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      Appellant Chuck Allen Little appeals his convictions for kidnapping and

burglary of a habitation. In four issues, Little argues that the trial court abused its

discretion by not empanelling a jury to determine his competency to stand trial;

that the trial court committed reversible error by ordering expert evaluation

regarding his competency to stand trial without being afforded his right to
      1
       See Tex. R. App. P. 47.4.
counsel; that his appointed trial counsel failed to request a hearing regarding his

desire for self-representation; and that the trial court erred by denying his request

for hybrid representation. We will affirm.

                                  II. BACKGROUND

      Upset that his girlfriend had ended their relationship, Little held a knife to

her and threatened to kill her if she did not accompany him from Parker County

to either Oklahoma or Mexico. The girlfriend temporarily escaped the house they

were in, and a neighbor called the police and reported that Little had dragged her

back into the house. Little released her to police when they arrived but escaped

out the back and was later apprehended.

      The State indicted Little for kidnapping and assault on May 5, 2011. For

reasons that are not apparent from the record, on June 1, 2011, the trial court

ordered that Little undergo an expert evaluation to determine whether he was

competent to stand trial. Over the next six weeks, Little filed numerous pro se

documents, including affidavits of indigency, letters to the trial court expressing

his desire to represent himself, and motions to dismiss the charges against him.

Some of the motions that Little filed in the trial court include a request for legal

supplies, a request for funds to retain a legal assistant, and a motion requesting

that the State pay for a private investigator.

      On July 15, 2011, Dr. Peter Oropeza conducted a competency evaluation

and determined that Little was competent to stand trial. Four days later, the trial

court appointed Matt McConahay to serve as Little‘s trial counsel. Despite the


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appointment of trial counsel, Little continued to send the trial court numerous

motions and demands.         One of the documents is a letter in which Little

expressed his desire to fire McConahay. On December 1 and on December 5,

2011, the clerk‘s record reflects that the trial court again ordered that Little be

examined by an expert to determine whether he was competent to stand trial.

      On December 8, 2011, the trial court ―unilaterally‖ held a hearing ―to cover

pretrial matters.‖ At the December 8 hearing, Little requested that he be allowed

―a hybrid counsel to help assist [him]‖ but added that he ―would like to maintain

control of the case.‖ Little specifically said that he did not want the assistance of

appointed counsel McConahay. The trial court denied Little‘s request for hybrid

counsel. After further discussion, the trial court gave Little the choice between

allowing McConahay to continue as appointed counsel, allowing McConahay to

serve as standby counsel, or allowing Little to represent himself without the aid of

counsel at all. Little stated that he desired ―standby counsel.‖ After admonishing

Little regarding the possible perils of self-representation, the trial court granted

Little‘s request for self-representation with standby counsel. On December 12,

2011, the trial court, finding Little competent to stand trial, ordered that the

previous orders for additional expert evaluations be set aside. Specifically, the

trial court stated that after ―having examined [Little] in open court and after having

received [Little‘s] writings . . . there [was] not a current issue as to [Little‘s]

competency to stand trial.‖ The trial court further stated that it had considered a

previous determination of competency to stand trial in making this finding. The


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next day, the trial court again held a hearing in which the trial court delivered to

Little its order setting aside the previous orders for an additional competency

evaluation and its findings regarding Little‘s competency to stand trial. Little,

accompanied by standby counsel, did not object. On December 19, 2011, the

State filed a superseding indictment adding the charge of burglary of a habitation.

      A jury found Little guilty of kidnapping and burglary of a habitation and

assessed punishment at ninety-nine years‘ incarceration for kidnapping and fifty

years‘ incarceration for burglary of a habitation with the sentences to run

concurrently. Standby counsel filed a motion for new trial and arrest of judgment,

which the trial court overruled. After Little filed an affidavit of indigency seeking

appointed appellate counsel, the trial court appointed appellate counsel. This

appeal followed.

                                  III. DISCUSSION

      A.     Little’s Competency to Stand Trial

      In part of his first issue, Little contends that the trial court abused its

discretion ―when it found [him] competent to stand trial.‖        Specifically, Little

argues that the trial court erred by not assembling a jury to determine whether he

was competent to stand trial.       He argues that the trial court should have

conducted a jury trial on the issue because evidence raised a bona fide doubt

that he was not competent. In his argument, Little also suggests that ―at the very

minimum, a hearing should have been held‖ to assess his competency. We

conclude that the trial court did conduct an informal inquiry under the proper


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statutory scheme and that the trial court did not abuse its discretion by declaring

Little competent to stand trial.

      The conviction of an accused person while he is legally incompetent to

stand trial violates due process. See McDaniel v. State, 98 S.W.3d 704, 709

(Tex. Crim. App. 2003). A defendant is incompetent to stand trial if he does not

have a ―(1) sufficient present ability to consult with [his] lawyer with a reasonable

degree of rational understanding; or (2) a rational as well as factual

understanding of the proceedings against [him].‖ Tex. Code Crim. Proc. Ann. art.

46B.003(a) (West 2006). A defendant is presumed to be competent to stand

trial, and incompetence must be established by a preponderance of the

evidence. Id. art. 46B.003(b).

      The standard of review is whether the trial court abused its discretion by

failing to empanel a jury for the purpose of conducting a competency hearing.

Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999), cert. denied, 530

U.S. 1216 (2000); Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.—Fort

Worth 2005, pet. ref‘d). We do not substitute our own judgment for that of the

trial court; rather, we consider the totality of the facts surrounding the trial court‘s

decision to determine whether the trial court acted arbitrarily or unreasonably.

Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009); see also Gray v.

State, 257 S.W.3d 825, 828–29 (Tex. App.—Texarkana 2008, pet. ref‘d).

      When there is evidence that is sufficient to raise a bona fide doubt as to a

defendant‘s competency, a trial court shall first conduct an informal inquiry to


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ascertain whether there is evidence that would support a finding of

incompetence. Tex. Code Crim. Proc. Ann. art. 46B.004(c) (West Supp. 2012);

Montoya, 291 S.W.3d at 425.

      If an informal inquiry shows that evidence exists that would support a

finding of incompetence, the trial court shall then order an examination to

determine whether the defendant is incompetent to stand trial. Tex. Code Crim.

Proc. Ann. art. 46B.005(a) (West 2006). Only after such an examination need

the trial court conduct a formal hearing on the issue if the trial court still has a

bona fide doubt about the defendant‘s competency. See Montoya, 291 S.W.3d

at 424–25; Moore, 999 S.W.2d at 393. And the formal hearing need not be

conducted before a jury unless a party requests it or the trial court determines on

its own motion to conduct the hearing before a jury. Tex. Code Crim. Proc. Ann.

art. 46B.051 (West 2006).

      Neither party in this case requested a jury trial on the issue of competency.

And to the extent that Little claims the trial court erred by not conducting an

informal inquiry to ascertain whether he was competent to stand trial, that part of

his claim is overruled. See id. The trial court did conduct an informal inquiry into

Little‘s competency. The trial court ordered that Little be examined by a medical

examiner, who assessed Little as competent to stand trial.           The trial court

furthered its informal inquiry by questioning Little at multiple pretrial hearings.

After making this informal inquiry, the trial court specifically found that there was

not an ―issue as to [Little‘s] competency to stand trial‖ and that Little ―exhibited


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considerable working knowledge of the court system, court procedure, the

charge[s] against him, as well as the consequences of a trial.‖ These findings

are supported by the record.

      Little attacks these findings by arguing that he did not demonstrate

―exercised reason, sound judgment, or good sense‖ because he filed a ―flurry‖ of

motions after being indicted, including multiple assertions that he be allowed to

represent himself. Little also argues that there was evidence before the trial

court that he had experienced mental health issues in the past, that Little

believed his counsel and the trial court were conspiring to prevent him from

receiving a fair trial, and that the trial court demonstrated its own concern

regarding his competency by ordering multiple competency evaluations.              But

Little points to nothing in the record that would compel this court to ignore the trial

court‘s firsthand factual assessment of his mental competency, a finding that this

court is bound to afford great deference to, or the trial court‘s reliance of an

expert‘s determination that he was competent to stand trial. See McDaniel, 98

S.W.3d at 712 (―Appellant's history of mental illness was insufficient to create a

bona fide doubt about his present mental condition, in light of the more recent

psychological evaluation attesting to his mental competency.‖); see also Smith v.

State, No. 02-11-00243-CR, 2012 WL 3600002, at *2–3 (Tex. App.—Fort Worth

Aug. 23, 2012, pet. ref‘d) (mem. op., not designated for publication) (holding that

trial court did not abuse its discretion by not impaneling a jury to determine

defendant‘s competency despite expert opinion that defendant was ―mildly


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mentally retarded,‖ defendant‘s belief that appointed attorney was ―working with‖

the State to deprive him of a fair trial, and multiple court-ordered competency

evaluations during which court observed and questioned defendant in pretrial

hearing regarding his dissatisfaction with appointed counsel). We overruled this

portion of Little‘s first issue.

       B.     Competency Evaluation Without Counsel

       In the remainder of his first issue, Little argues that he was denied

assistance of counsel when the court ordered that he undergo a competency

evaluation without having been appointed counsel. The State concedes that

Little was denied counsel under the statute governing competency. See Tex.

Crim. Proc. Code Ann. art. 46B.006(a) (West 2006) (―A defendant is entitled to

representation by counsel before any court-ordered competency evaluation and

during any proceeding at which it is suggested that the defendant may be

incompetent to stand trial.‖). The State argues, however, that any error by the

trial court in not affording Little counsel for the competency evaluation was

harmless. We agree.

       The denial of counsel implicates the Sixth Amendment, and violations of

the Sixth Amendment are subject to a harmless error analysis. See Hanson v.

State, 11 S.W.3d 285, 289 (Tex. App.—Houston [14th Dist.] 1999, pet. ref‘d); see

also Satterwhite v. Tex., 486 U.S. 249, 254, 108 S. Ct. 1792, 1796 (1988)

(holding that when the absence of counsel does not pervade the entire

proceeding, Sixth Amendment violations are subject to a harmless error


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analysis). ―If the appellate record in a criminal case reveals constitutional error

that is subject to harmless error review, the court of appeals must reverse a

judgment of conviction or punishment unless the court determines beyond a

reasonable doubt that the error did not contribute to the conviction or

punishment.‖ See Tex. R.. App. P. 44.2(a).

      Here, as the State points out, ―nothing related to [the competency

evaluation] was used at trial.‖ We therefore conclude beyond a reasonable doubt

that the lack of counsel at Little‘s competency evaluation did not contribute to his

convictions or punishments. We overrule the remainder of Little‘s first issue.

      C.     Knowing and Intelligent Waiver of Counsel

      In his second issue, Little argues that he could not have knowingly and

intelligently waived his right to counsel and that the trial court erred by allowing

him to exercise his right to self-representation.2 Little‘s argument seems to be

that because he expressed beliefs that his appointed attorney was working in

concert with the trial court and because he had demonstrated ―psychological

breaks‖ in the past, he lacked the capacity to voluntarily and knowingly waive his

right to counsel.




      2
        Little argued in his initial briefing to this court that the trial court had not
properly admonished him regarding self-representation, but in his reply brief,
Little concedes that the trial court admonished him; and the record supports that
the trial court admonished him both in writing and at a hearing regarding Little‘s
request that he be allowed to represent himself.


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      In all criminal prosecutions in which an accused may be punished by

imprisonment, the accused has the right to assistance of counsel for his defense.

U.S. Const. amends. VI, XIV; Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp.

2012); see Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975);

Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997), cert. denied, 525

U.S. 829 (1998). In lieu of being represented by counsel, however, a defendant

also has a Sixth Amendment right to prosecute his own legal defense. Faretta,

422 U.S. at 818, 95 S. Ct. at 2532–533; see also Tex. Const. art I, § 10; Tex.

Code Crim. Proc. Ann. art. 1.05 (West 2005). For the decision to represent

oneself to be constitutionally effective, a defendant must make the decision

(1) competently, (2) knowingly and intelligently, and (3) voluntarily. Moore, 999

S.W.2d at 396.      Little argues that he did not make his election of self-

representation knowingly and intelligently.

      In his initial briefing, Little argued that the trial court had not properly

admonished him regarding his abandonment of the right to counsel and his

decision to proceed pro se. After reviewing his reply brief, Little has abandoned

this position and merely argues now that he did not possess the rational

capability to make a knowing and intelligent decision. Specifically, and citing the

Diagnostic and Statistical Manual of Mental Disorders, Little‘s appellate counsel

claims that she ―suspects‖ that Little meets the criteria for a person who displays

paranoid personality disorder; thus, according to Little‘s appointed counsel, Little

could not have knowingly and intelligently waived his right to counsel. We agree


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with the State that there is no evidence in the record that Little was suffering from

a mental illness at the time the trial court admonished him.

      In this case, the trial court engaged in substantial interaction with Little

both before and after his ultimate decision to proceed pro se, providing the trial

court abundant information with which to take realistic account of Little‘s

competence to represent himself and providing this court with a thorough record

from which to review the trial court‘s determination. At multiple pretrial hearings,

Little displayed a working knowledge of the court system, including his

understanding    of   the    differences    between    self-representation,   hybrid

representation, and the appointment of standby counsel. He also demonstrated

that he is well-versed in the constitutional provisions and cases supporting his

desire to represent himself. The trial court admonished Little multiple times in

writing and through questioning in open court. In these admonishments, the trial

court explained to Little that he would be responsible for the presentation of

evidence, conducting witness examination and cross-examination, and ―all

procedural matters and evidentiary matters.‖ The trial court further implored that

ignorance of the law would not be an excuse with regard to the outcome of his

case. The trial court conveyed to Little: ―In 30 years of experience in the law, I

do not recall ever having seen a layperson, meaning a person who is not a

lawyer, be as familiar with the law, which includes the law of evidence and the

law of procedure, as well as even the youngest lawyer‖ and that without such

experience, the trial court was concerned that by representing himself, Little


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―increas[ed] the possibility of the [S]tate[‗s] being able to meet its burden on

everything that it asserts.‖ Following this exchange, the trial court asked again,

―Under those conditions, do you still maintain that you desire to represent

yourself in this case?‖ And Little responded, ―Yes, sir.‖ We hold that under these

circumstances, the trial court did not abuse its discretion by allowing Little to

represent himself while also appointing standby counsel. See Cudjo v. State,

345 S.W.3d 177, 184 (Tex. App.—Houston [14th Dist.] 2011, pet. ref‘d)

(―Appellant confirmed that he understood the dangers and disadvantages of self-

representation as the trial court explained them to him, and thus his waiver was

knowing and intelligent.‖). Thus, we overrule Little‘s second issue.

      D.     Appointed Counsel and Hearing on Little’s Self-Representation

      In his third issue, Little argues that his appointed trial counsel was

―ineffective when he failed to assert a claim for a hearing to determine if [Little]

was making a voluntary, intelligent, and knowing waiver of counsel.‖ The gist of

Little‘s third issue is that his appointed trial counsel should have sought a hearing

―to ascertain whether [Little‘s] waiver of counsel was freely, knowingly, and

voluntarily waived.‖ Though not directly stated, Little appears to have abandoned

this position in his reply brief. In his reply brief and in relation to his first issue,

Little concedes that a hearing on his desire to proceed pro se did in fact occur.

Thus, we overrule Little‘s third issue.




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      E.    Little’s Request for Hybrid Representation

      In his fourth issue, Little argues that the trial court abused its discretion by

denying Little‘s request for hybrid representation and by ultimately appointing his

previously appointed trial counsel as standby counsel. Specifically, Little argues

that because he did not trust his appointed trial counsel, it was an abuse of

discretion to appoint that same attorney as standby counsel.           Further, Little

argues simply that he was entitled to hybrid representation.          Both of these

positions within his fourth issue are also predicated on appellate counsel‘s initial

mistaken belief that a hearing had not been held regarding Little‘s desire for self-

representation. And in his reply brief, Little does not address whether he has

abandoned his fourth issue.

      We conclude that the trial court did not abuse its discretion by appointing

Little‘s previously court-appointed trial counsel as standby counsel. First, the

record reveals that when the trial court presented Little with the options of

proceeding with appointed counsel, appointed counsel as standby counsel, or

proceeding with no assistance, Little specifically chose standby counsel with full

knowledge that standby counsel would be his court-appointed counsel.

Furthermore, a criminal defendant is not entitled to hybrid representation. See

Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007); Patrick v. State,

906 S.W.2d 481, 498 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996).

And a trial court can appoint standby counsel to assist a criminal defendant who

represents himself at trial, even over the defendant‘s objection. Sossamon v.


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State, 110 S.W.3d 57, 61 (Tex. App.—Waco 2002, pet. ref‘d).                  We overrule

Little‘s fourth issue.

         F.    Little’s Reply Brief

         Little argues for the first time in his reply brief that the trial court abused its

discretion by denying his motion to suppress without holding a suppression

hearing and that he preserved this issue for our review by making a general

objection to the trial court during a pretrial hearing that he wanted to ―preserve all

these issues for appellate purposes.‖ We decline to address this newly raised

issue.

         A reply brief is allowed only to address matters raised in the appellee‘s

brief. See Tex. R. App. P. 38.3; Barrios v. State, 27 S.W.3d 313, 322 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref‘d), cert. denied, 534 U.S. 1024 (2001);

Conrad v. State, 10 S.W.3d 43, 46 n.4 (Tex. App.—Texarkana 1999, pet. ref‘d).

This reply issue was not argued in Little‘s initial briefing, nor was it raised in the

State‘s brief. Therefore, this issue may not be argued for the first time in Little‘s

reply brief. See Barrios, 27 S.W.3d at 322. Furthermore, we are not persuaded

by Little‘s contention that he was unaware of the lack of a hearing transcript

regarding his motion to suppress until after he had filed his initial briefing and that

he first learned of the lack of a transcript after he had received a copy of the

State‘s request for supplementation of the record, which occurred after he filed

his initial brief.     It is Little who bore the burden of presenting a record

demonstrating that the trial court‘s decision should be overturned. See Newman


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v. State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) (―We decide that appellant

has failed to present a record demonstrating that the trial court‘s decision should

be overturned.‖); see also Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim.

App. 2007) (―It was, however, appellant‘s burden to bring forward a record on

appeal sufficient to show that the trial court erred in his ruling on the motion to

suppress.‖); Word v. State, 206 S.W.3d 646, 651–52 (Tex. Crim. App. 2006) (―It

is usually the appealing party‘s burden to present a record showing properly

preserved, reversible error.‖) We decline to address Little‘s issue that he brings

for the first time in his reply brief.

                                     IV. CONCLUSION

       Having overruled all of Little‘s issues and having declined to address his

newly raised issue from his reply brief, we affirm the trial court‘s judgment.




                                                      BILL MEIER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 10, 2013




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