                            NUMBERS 13-14-00192-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JOHN MICHAEL WEATHERLY
A/K/A LOCO,                                                                           Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                   Appellee.


                      On appeal from the 252nd District Court
                           of Jefferson County, Texas.


                             MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Benavides and Perkes
              Memorandum Opinion by Justice Perkes1
       Appellant, John Michael Weatherly, a/k/a Loco, appeals his conviction for the

offense of impersonating a public servant, a third degree felony. See TEX. HEALTH &


        1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Ninth Court of Appeals in Beaumont. See TEX. GOV'T CODE ANN. §
73.001 (West, Westlaw through Ch. 46 of 2015 R.S.).
SAFETY CODE ANN. § 37.11 (West, Westlaw through Ch. 46 of 2015 R.S.).                      A jury

convicted Weatherly and, at the conclusion of the punishment phase of trial, sentenced

him to twenty-five years imprisonment.2 Weatherly contends that the trial court erred by

not granting his motions for mistrial based on:             (1) insufficient time for appellant to

prepare for trial; and (2) appellant’s pro se selection of a jury panel without assistance of

counsel. We affirm.

                                        I.      BACKGROUND

       On October 26, 2011, Weatherly entered the M&M convenience store wearing a

yellow raincoat and a yellow hardhat with a visor covering his face. The raincoat was

marked “FD” and the hardhat was marked “BFD.” When he entered, he was talking into

a black box that looked like a radio. He asked where the breaker was and claimed there

had been power issues in the area. He told a store employee that he was checking to

make sure the electricity was working properly in the store. Weatherly then went behind

the counter and grabbed a stack of lottery tickets. The store clerk asked Weatherly to

put the tickets back, and Weatherly began to leave the store. As he was leaving, a

customer stood in front of the door and blocked his exit.                 The customer pushed

Weatherly against the wall and detained him until the police arrived.              When Officer

Timothy Dinger arrived on the scene, he took Weatherly into custody. After collecting

statements from witnesses, Officer Dinger arrested Weatherly for robbery and

impersonating a public servant. Weatherly was later indicted for impersonating a public

servant. See TEX. HEALTH & SAFETY CODE ANN. § 37.11.



       2   The sentence was enhanced by two prior felony convictions.
                                                   2
      Prior to trial, Weatherly had two court-appointed attorneys, but at trial Weatherly

elected to proceed pro se. Before voir dire, the court cautioned Weatherly, at length,

regarding the dangers of self-representation and appointed Weatherly’s former attorney

to sit with Weatherly to advise him in the event he needed aid during trial. The following

is an example of one of the exchanges between the trial court and Weatherly:

      THE COURT:          Mr. Weatherly, just to put some things on the record
                          here: You've been advised of the punishment ranges
                          and the charges against you; is that right?

      THE DEFENDANT: Uh-huh.

      THE COURT:          And you stated that you fully understand all of that, and
                          it's your desire to represent yourself?

      THE DEFENDANT: Right.

      THE COURT:          I have to tell you I feel like you're in an extreme
                          disadvantage if you do that.

      THE DEFENDANT: Not really.

      THE COURT:          You know, this is our profession. [The prosecution] has
                          been doing this a long time. We've all been to law school
                          here, and you have not.

      THE DEFENDANT: I agree with you. I have much respect for that.

        THE COURT:        I just wanted you to be aware that we would advise you
                          to get an attorney or to even let us appoint one because
                          you will be held to the same rules of evidence and the
                          same rules of procedure that [the prosecution] is and
                          every other lawyer in this court is, and I know you're
                          probably not as familiar with those rules and that will be
                          to your disadvantage and typically that will work against
                          you. You're facing two life sentences here.

      THE DEFENDANT: Yes, ma'am.

The trial court also admonished Weatherly that:

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        I cannot give you any special privilege or anything like that. And if you don't
        know how to properly ask the questions or how to properly admit the
        evidence, then it just won't come in. You won't be able to do it, and I won't
        be able to advise you how to do it.

        During voir dire, Weatherly did not ask the potential jurors any questions or

exercise any strikes.       After the jury was selected, the trial court again admonished

Weatherly concerning the dangers of self-representation. Weatherly then withdrew his

waiver of counsel, and the trial court appointed Weatherly’s former attorney to represent

him. His attorney moved for mistrial because he did not have sufficient time to prepare

for trial, and on the basis of ineffective assistance of counsel concerning Weatherly’s pro

se jury selection. The motions were denied.3

                                    II.     STANDARD OF REVIEW

        When reviewing a trial court’s ruling on a motion for mistrial, courts apply an abuse

of discretion standard. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).

An appellate court reviews the evidence in a light most favorable to the trial court’s ruling

and considers only the arguments before the court at the time of the ruling. Ocon v.

State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Wead v. State, 129 S.W.3d

126, 129 (Tex. Crim. App. 2004)). The appellate court does not substitute its judgment

for that of the trial court, but instead decides whether the trial court’s ruling was arbitrary

or unreasonable. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). If the

trial court’s ruling is within the zone of reasonable disagreement, it must be upheld.

Espinosa v. State, 328 S.W.3d 32, 38 (Tex. App.—Corpus Christi 2010, pet. ref’d). Only


       3 Upon issuing its ruling, the trial court noted Weatherly had invoked his right to a speedy trial,

which was taken into consideration when denying his motions for mistrial. U.S. CONST. amend VI; TEX.
CONST. art. 1, § 10.
                                                    4
“highly prejudicial and incurable errors” necessitate a mistrial. York v. State, 258 S.W.3d

712, 715–16 (Tex. App. —Waco 2008, pet. ref’d).

                     III.    INSUFFICIENT TIME TO PREPARE FOR TRIAL

       Weatherly first contends the trial court erred in not granting a mistrial because his

attorney had insufficient time to prepare for trial. Specifically, Weatherly maintains that

“[t]he [trial] court should have granted the newly appointed legal counsel’s motion [for

mistrial] so he could be prepared and able to represent [Weatherly] from start to finish,

not coming in halfway to the error already done by a ‘Pro Se’ defendant.” We disagree.

   A. Applicable Law

       Generally, counsel has ten days to prepare for trial unless that time period is

waived with the consent of the defendant. See TEX. CODE CRIM. PROC. ANN. art. 1.051(e)

(West, Westlaw through Ch. 46 of 2015 R.S.).           However, Texas Code of Criminal

Procedure article 1.051(h) provides an exception to this general rule when counsel is

appointed after the defendant withdraws a prior waiver of counsel. Cole v. State, 929

S.W.2d 102, 103 (Tex. App.—Beaumont 1996, pet ref’d). Article 1.051(h) states:

       A defendant may withdraw waiver of the right to counsel at any time but is
       not entitled to repeat a proceeding previously held or waived solely on the
       grounds of the subsequent appointment or retention of counsel. If a
       defendant withdraws a waiver, the trial court, in its discretion, may provide
       the appointed counsel 10 days to prepare.

TEX. CODE CRIM. PROC. ANN. art. 1.051(h). The plain language of article 1.051(h) affords

the trial court discretion whether to give counsel an additional 10 days to prepare for trial.

Barnes v. State, 921 S.W.2d 881, 883 (Tex. App.—Austin 1996, pet ref’d).

   B. Analysis


                                              5
       The record indicates that Weatherly’s attorney was appointed on October 29,

2012, and that he served as appellant’s counsel through July 29, 2013. The prosecutor

represented to the trial court that Weatherly’s attorney had been to his office several times

to discuss the case, receive discovery, and discuss potential plea bargains. Weatherly’s

counsel was again appointed on February 24, 2014, to assist him at trial.                        All told,

counsel was assigned to the case for almost a year.

       We conclude that, under these facts, the trial court properly exercised its discretion

under article 1.051(h), and was not required to grant Weatherly’s appointed counsel extra

time to prepare. See Cole, 929 S.W.2d at 102 (holding trial court did not abuse its

discretion by not granting defendant’s court-appointed attorney an extension after

defendant withdrew waiver of counsel).               Moreover, Weatherly did not seek the less

drastic remedy of a continuance before moving for a mistrial.4 “An appellant who moves

for a mistrial without first requesting a less drastic alternative forfeits appellate review of

that class of events that could have been cured by the lesser remedy.”                        Ocon, 284

S.W.3d at 886–87; see Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)

(concluding that the trial court did not abuse its discretion in denying the appellant's

motion for mistrial when the appellant had not requested the less drastic remedy of a

continuance).

   C. Conclusion

       The trial court did not abuse its discretion in denying appellant’s motion for mistrial

based on insufficient time to prepare for trial. We overrule appellant’s first issue.



       4   Weatherly’s attorney moved for a mistrial, but did not make a separate motion for a continuance.
                                                     6
                                      IV.     PRO SE REPRESENTATION

        Weatherly also contends that the trial court erred by not granting his motion for

mistrial based on defendant’s pro se representation during jury selection. Specifically,

Weatherly notes that during his pro se representation “he made no meaningful attempt at

picking a jury for his case.”        Because Weatherly’s waived his right to counsel, 5 we

disagree that he is entitled to a “do-over” on account of his alleged ineffective pro se

representation.

        A defendant who elects to represent himself cannot thereafter complain that the

quality of his representation amounted to the denial of effective assistance of counsel.

See Faretta v. California, 422 U.S. 806, 834 n. 46 (1975); Williams v. State, 549 S.W.2d

183, 189 (Tex. Crim. App. 1977). Further, as set out above, “[a] defendant may withdraw

waiver of the right to counsel at any time but is not entitled to repeat a proceeding

previously held or waived solely on the grounds of the subsequent appointment or

retention of counsel.” TEX. CODE CRIM. PROC. ANN. art. 1.051(h).

        The record reflects that Weatherly waived his right to counsel and elected to

proceed pro se in jury selection. Having done so, he cannot now complain about the

effectiveness of his pro se representation, and he is not entitled to repeat a proceeding

previously held.      Faretta 422 U.S. at 834 n. 46; See Williams, 549 S.W.2d at 189.

Because Weatherly waived his right to counsel, the trial court did not act unreasonably or




        5 We note that Weatherly does not raise the issue of whether his waiver of counsel was knowing

and voluntary, so we do not decide that question here. See Faretta v. California, 422 U.S. 806, 835 (1975)
(holding that waiver of right to counsel must be knowing and voluntary).
                                                    7
arbitrarily in denying Weatherly’s motion for mistrial based on appellant’s pro se jury

selection. We overrule appellant’s second issue.

                                       V.      CONCLUSION

       We affirm the trial court’s judgment.

                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
2nd day of July, 2015.




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