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.
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“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.
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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).
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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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