
                              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 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.
      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.
      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.
