Albert Cleveland Stafford v. State

NUMBER 13-12-00134-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALBERT CLEVELAND STAFFORD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 445th District Court
of Cameron County, Texas.

MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Albert Cleveland Stafford appeals his murder conviction, a first-degree

felony, see TEX. PENAL CODE ANN. § 19.02(b)(1), (c) (West 2011), which was enhanced by

prior convictions, see id. § 12.42(c) (West Supp. 2011). A jury found appellant guilty and

assessed punishment at life imprisonment. By eight issues, which we reorganize as

seven, appellant argues: (1) the evidence was insufficient to support his conviction;
(2) he was entitled to an instruction on concurrent causation; (3) he was entitled to a

lesser-included-offense instruction on aggravated assault; (4) he was not competent to

stand trial; (5) the trial court failed to admonish him about the risks and dangers of

self-representation; (6) he was not competent to represent himself; and (7) the evidence

was insufficient to support the jury’s future-dangerousness determination. We affirm.

I. BACKGROUND1

Ricardo Martinez was stabbed several times in the chest, which necessitated his

being put on life support. Norma Jean Farley, a forensic pathologist, testified that

Martinez eventually died from “complications of stab wounds of the torso, manner

homicide.” The State charged appellant with Martinez’s murder.

Alfredo Castillo testified that he went to visit Martinez at his house on the day he

was stabbed. Castillo recounted that appellant “showed up at the screen door on the

outside. He didn’t come in. He just stood outside the screen door and asked [Martinez]

a question and [Martinez] just told him, [‘]Not now, not at the moment,[’] and that was it,

[appellant] took off.” Castillo went to a nearby convenience store to buy beer, but when

he returned to Martinez’s house, the door was locked. Castillo knocked on the door

several times, but Martinez did not answer. Castillo called Martinez’s cell phone several

times. He “could hear the phone ringing, but [Martinez] would never answer the phone.”

Castillo testified that he took Martinez’s vehicle to the convenience store, and at

some point realized he had the house key. Castillo unlocked and attempted to open the

1
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

2
door, but “somebody shoved it back.” Castillo thought Martinez was playing around with

him, but when he again tried to open the door, someone again shoved it shut. Castillo

said this happened four or five times before he decided to “put a little bit more pressure

on” the door. The door finally opened, but appellant stood in the entry. Castillo stated

that appellant was holding a knife and told him that he was “going to die like [Martinez],

[appellant] was going to kill me [Castillo] . . . .”

Castillo testified that he backed away from appellant, but appellant “kept coming

toward me telling me that he was going to kill me, he was going to kill me like he killed

[Martinez].” Appellant eventually “turned off on the alleyway,” and Castillo fled to a

nearby body shop and eventually called 9-1-1. Responding police officers found

Martinez’s body in the house; he had been stabbed several times in the chest and was

unresponsive. Several kitchen knives lay nearby on the floor. Three of them had

Martinez’s blood on them.

Martinez was taken to the hospital. Detective Samuel Lucio of the Brownsville

Police Department testified, “I was advised that [Martinez] had no pulse in transportation,

still had no pulse, but they were still working him and that he was very critical.” Police

officers located appellant nearby and arrested him. Appellant had Martinez’s blood on

his hands, shoes, and clothes.

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, appellant argues the evidence was insufficient to support a guilty

verdict. Specifically, appellant contends the evidence was insufficient to show he was

3
the sole cause of Martinez’s death because a concurrent cause—namely the removal of

Martinez from life support—caused Martinez’s death.

A. Standard of Review

“The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).

“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc)

(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).

We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. Relevant to this appeal, a person commits the

offense of murder if he intentionally or knowingly causes the death of an individual. TEX.

PENAL CODE ANN. § 19.02(b)(1) (West 2011).

4
B. Discussion

Appellant limits his sufficiency challenge to the element of causation; he does not

contest the sufficiency of the evidence to show he intentionally or knowingly stabbed

Martinez several times in the chest.2 Appellant claims the concurrent cause of removing

Martinez from life support renders the evidence insufficient to prove appellant caused

Martinez’s death.

“A person is criminally responsible if the result would not have occurred but for his

conduct, operating either alone or concurrently with another cause, unless the concurrent

cause was clearly sufficient to produce the result and the conduct of the actor clearly

insufficient.” TEX. PENAL CODE ANN. § 6.04(a) (West 2011). In support of his

concurrent-cause theory, appellant notes that when the State first asked the forensic

pathologist, Farley, what caused Martinez’s death, Farley responded, “Well . . . when

somebody lives this long, we usually just call it complications of multiple stab wounds of

the torso.” Appellant also emphasizes the following exchange between the prosecutor

and Farley:

Q: So when you say complication of the stab wounds and multiple stab
wounds, is it fair to say that it’s your opinion that but for having been
stabbed in the torso Mr. Martinez would have been alive today?
2
We note that there was substantial evidence showing appellant intentionally or knowingly
stabbed Martinez several times in the chest. Castillo testified that he saw appellant in Martinez’s house,
that appellant claimed to have killed Martinez, and that appellant threatened to kill Castillo. Detective
Marian Culver Kingsbury testified that video surveillance from a convenience store and Castillo’s cell phone
records corroborated Castillo’s testimony of going to a convenience store and subsequently calling
Martinez several times. A neighbor testified to seeing appellant go to Martinez’s house, hearing appellant
and Martinez arguing loudly, and seeing appellant leave Martinez’s house and walk into the alley. When
appellant was arrested he had Martinez’s blood on his hands, clothes, and shoes. Detective Juan
Hernandez testified that upon executing a search warrant of appellant’s apartment, investigators found an
apparent blood stain on appellant’s front door. Detective Kingsbury testified that the knives found at the
crime scene did not match any knives in Martinez’s house, but that they did match the brand of knives from
a box set of kitchen knives found at appellant’s house; the box set had two empty slots, which fitted the
knives recovered from the crime scene.
5
 A: Well, at the time, yes, he would have been alive. In my opinion, if he
hadn’t been stabbed, he would be alive. Now, today, if he’d been in
a car accident, I wouldn’t know, but that day, that’s what caused him
to go to the hospital.

Lastly, appellant stresses that on cross-examination, defense counsel asked whether

taking Martinez off a respirator caused Martinez to “expire,” and Farley responded, “Yes.”

Appellant pinpoints the removal of life support as the most proximate explanation

for Martinez’s death, but fails to show that his conduct of stabbing Martinez multiple times

in the chest was “clearly insufficient” to cause Martinez’s death. See TEX. PENAL CODE

ANN. § 6.04(a). Appellant’s conduct is what necessitated placing Martinez on life

support, without which Martinez would have died sooner. The Texas Court of Criminal

Appeals has expressed its view of this argument in a similar case:

The argument advanced by appellant that the life support system caused
the death is unpersuasive. [The victim] would not have required any life
support had it not been for the actions of appellant. An uninjured person
placed on a life support system would not die if the system was
disconnected; and but for the actions of appellant, the deceased would
never have been placed on life support.

Felder v. State, 848 S.W.2d 85, 90 (Tex. Crim. App. 1992) (en banc). For this reason,

the court of criminal appeals reasoned that “it can hardly be said that appellant’s conduct

‘was clearly insufficient’ to cause [the victim’s] death.” Id. at 90 n.1.

Similarly, appellant has not established that his conduct was clearly insufficient to

cause Martinez’s death. On the contrary, the evidence supports a conclusion that

appellant’s conduct was sufficient to cause the death. In addition to the testimony

appellant references, Farley also stated that two of Martinez’s stab wounds were fatal and

that Martinez died from “complications of stab wounds of the torso, manner homicide.”

6
Viewing the evidence in the light most favorable to the prosecution, we conclude a

rational fact finder could have found the essential elements of murder, including

causation, beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Johnson, 364

S.W.3d at 293–94. We overrule appellant’s first issue.

III. CONCURRENT CAUSATION

By his seventh issue, appellant argues a concurrent causation jury instruction

should have been given based on Farley’s testimony. We disagree.

A. Standard of Review and Applicable Law

When an appellate court is presented with an argument that a trial court committed

jury charge error, we conduct a two-step inquiry: “First, the reviewing court must

determine whether the jury charge contains error. Second, the court must determine

whether sufficient harm resulted from the error to require reversal.” Mann v. State, 964

S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); see Benn v. State, 110 S.W.3d 645,

648 (Tex. App.—Corpus Christi 2003, no pet.). When evidence from any source raises a

defensive issue, and the defendant properly requests a jury charge on that issue, the trial

court must submit that issue to the jury. Trevino v. State, 100 S.W.3d 232, 237 (Tex.

Crim. App. 2003) (en banc); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)

(en banc). The evidence which raises the issue may be strong, weak, contradicted,

unimpeached, or unbelievable. Trevino, 100 S.W.3d at 237; Muniz, 851 S.W.2d at 254.

A defendant is not entitled to an instruction that is not raised by the evidence. Remsburg

v. State, 219 S.W.3d 541, 545 (Tex. App.—Texarkana 2007, pet. ref’d); Hutcheson v.

State, 899 S.W.2d 29, 42 (Tex. App.—Amarillo 1995, pet. ref’d).

7
B. Discussion

For appellant to have been entitled to an instruction on concurrent causation, the

record had to contain some evidence that the concurrent cause was clearly sufficient to

produce the result and the conduct of appellant clearly insufficient. See TEX. PENAL

CODE ANN. § 6.04(a); Remsburg, 219 S.W.3d at 545; Hutcheson, 899 S.W.2d at 42. As

discussed, appellant fails to show that his conduct of stabbing Martinez multiple times in

the chest was “clearly insufficient” to cause Martinez’s death. See Remsburg, 219

S.W.3d at 545; Hutcheson, 899 S.W.2d at 42. The trial court did not err by refusing to

give an instruction on concurrent causation. We overrule appellant’s seventh issue.

IV. LESSER-INCLUDED OFFENSE INSTRUCTION

By his sixth issue, appellant argues the trial court erred by failing to give a

lesser-included instruction on aggravated assault, which appellant requested. This

issue, like the previous two, is premised on appellant’s concurrent-cause theory.

A. Standard of Review

The determination of whether the trial court should give a lesser-included offense

instruction requested by a defendant requires a two step analysis: “(1) Is the requested

charge for a lesser-included offense of the charged offense? (2) Is there trial evidence

that supports giving the instruction to the jury?” Rice v. State, 333 S.W.3d 140, 144 (Tex.

Crim. App. 2011). We review the first step de novo. See id.

In applying the second prong, we look to see if there is some evidence in the

record that would permit a rational jury to find that, if the defendant is guilty, he is guilty

only of the lesser-included offense. Id. at 145. The evidence must establish the

8
lesser-included offense as a valid, rational alternative to the charged offense. Id.

Anything more than a scintilla of evidence is sufficient to entitle a defendant to a

lesser-included charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011).

B. Discussion

Because both of the lesser-included-instruction prongs must be satisfied and we

consider the second one dispositive of appellant’s issue, we will only address the second

prong. See Rice, 333 S.W.3d at 144; Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim.

App. 2007) (“The availability of the lesser-included instruction in a given case still would

depend on the second step, whether there is some evidence adduced at trial to support

such an instruction.”); see also TEX. R. APP. P. 47.1.

Appellant avers that the evidence could have shown that he was guilty only of

aggravated assault, i.e., that the stabbing caused serious bodily injury rather than death,

because removing Martinez from life support was a concurrent cause of Martinez’s death.

The evidence, however, shows that Martinez died from complications of multiple stab

wounds that were inflicted by appellant, and we have concluded that appellant failed to

show that his conduct was clearly insufficient to cause Martinez’s death; rather, the

evidence establishes the opposite—appellant’s stabbing caused Martinez’s death,

despite the doctors’ best efforts to save Martinez’s life.

We hold there is no evidence permitting a jury to conclude that if appellant was

guilty of some offense, he was guilty only of aggravated assault. See Rice, 333 S.W.3d

at 144. The trial court did not err by denying appellant’s requested lesser-included

instruction. We overrule appellant’s sixth issue.

9
 V. COMPETENCY TO STAND TRIAL

By his second issue, appellant argues that his right to a proper determination of his

competency to stand trial was violated because the trial court allegedly failed to follow the

mandatory procedures of chapter 46B of the Texas Code of Criminal Procedure to

conclude appellant was competent to stand trial. By his third issue, appellant argues the

trial court’s failure to properly inquire into his competency violated his due process rights

under the United States Constitution. We review these issues together. See McDaniel

v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003) (holding federal due process

standards are built into the Texas Code of Criminal Procedure provisions).3

On February 2, 2011, the trial court adjudged appellant incompetent to stand trial,

and ordered that appellant be committed to a medical facility for observation and

treatment in accordance with article 46B.073. See TEX. CRIM. PROC. CODE ANN. art.

46B.073 (West 2006). On July 28, 2011, the Texas Department of State Health Services

informed the trial court that appellant was then competent to stand trial. On August 18,

2011, there was a status hearing during which appellant’s attorney and the prosecutor

acknowledged that appellant was deemed competent to stand trial. The trial court noted

on its docket sheet that it found appellant competent to stand trial.

A. Applicable Law

Under article 46B, a trial court may determine that appellant is incompetent, either

through a hearing or by agreement of the parties. See TEX. CRIM. PROC. CODE ANN. arts.

3
At the time of McDaniel v. State, 98 S.W.3d 704 (Tex. Crim. App. 2003), article 46.02 of the
Texas Code of Criminal Procedure outlined competency determination standards. Effective January 1,
2004, the legislature replaced article 46.02 with article 46B, which now outlines the competency standards.
See Act of April 30, 2003, 78th Leg., R.S., ch. 35, §§15–17, 2003 Tex. Gen. Laws 57, 72 (current version at
TEX. CRIM. PROC. CODE ANN. art. 46B (West 2006 & Supp. 2011)).
10
46B.051, 46B.053 (West 2006). Upon finding a defendant incompetent to stand trial, the

trial court shall commit the defendant to a mental health facility or residential care facility

for examination and treatment toward the specific objective of attaining competency to

stand trial. Id. art. 46B.073. The head of the treatment facility shall promptly notify the

committing court when the head of the facility is of the opinion the defendant has attained

competency to stand trial. Id. art. 46B.080(b)(1). The head of the facility shall file a final

report with the court, and the court shall provide copies of the report to both parties’

attorneys. Id. art. 46B.080(c).

A defendant shall be returned to the committing court as soon as practicable after

the fifteenth day following the date on which the parties receive service of any report filed

by the health facility head under article 46B.080(b). Id. art. 46B.079(b). On the

defendant’s return to the court, the court shall make a determination with regard to the

defendant’s competency to stand trial. Id. art. 46B.084(a). The court may make the

determination based solely on the filed report, unless any party objects in writing or in

open court to the findings of the report not later than the fifteenth day after the date on

which the report was served on the parties. Id. If a party objects within the allowable

time frame, the issue shall be set for a hearing. Id. art. 46B.084(b). The record must

contain a judgment, order, docket entry, or other evidence indicating the trial court made

a judicial determination of regained competence. Schaffer v. State, 583 S.W.2d 627,

631 (Tex. Crim. App. [Panel Op.] 1979).

11
B. Discussion

Appellant does not specify which mandatory procedure the trial court allegedly

overlooked, and we find none. Appellant complains the trial court did not hold a hearing

to determine whether appellant regained competence, but appellant never requested that

a hearing be held. See TEX. CRIM. PROC. CODE ANN. art. 46B.084. Rather, at the

August 18 status hearing, appellant’s counsel expressly acknowledged, “I’ve received his

psychological [report] about being competent to stand trial.”4 Appellant did not thereafter

challenge the report or request a hearing as outlined in article 46B.084. See id. The

trial court violated no mandatory procedure in finding appellant competent to stand trial

based on the report. See id. The trial court memorialized its competency finding on its

docket sheet. See Schaffer, 583 S.W.2d at 631. There being no violation of the Texas

Code of Criminal Procedure or appellant’s due process right, see McDaniel, 98 S.W.3d at

709, we overrule appellant’s second and third issues.

VI. WAIVER OF TRIAL COUNSEL

Appellant raises two issues regarding his decision to proceed pro se. We review

appellant’s fifth issue first, whereby appellant claims that the trial court should have, but

failed to, engage him in a meaningful colloquy regarding the risks and dangers of

self-representation.

4
Appellant argues in his brief that “the docket fails to set forth any information about whether
notice was given to the parties of the evaluation report of the North Texas State Hospital on or about 18
August 2011.” The comments made by appellant’s attorney at the August 18 status hearing, however,
show that he had received and reviewed the report by that date.
12
A. Applicable Law

The Sixth Amendment to the United States Constitution protects a criminal

defendant’s right to self-representation. Faretta v. California, 422 U.S. 806, 821 (1975);

see U.S. CONST. amends. VI, XIV. A defendant may waive that right, but the waiver must

be made competently, knowingly and intelligently, and voluntarily. Collier v. State, 959

S.W.2d 621, 625 (Tex. Crim. App. 1997) (en banc) (citing Godinez v. Moran, 509 U.S.

389, 400–01 (1993); Faretta, 422 U.S. at 834–36)). The decision to waive counsel and

proceed pro se is made “knowingly and intelligently” if it is made with a full understanding

of the right to counsel, which is being abandoned, as well as the dangers and

disadvantages of self-representation. Id. at 626 (citing Faretta, 422 U.S. at 834–36).

The decision is voluntary if it is uncoerced. Id. (citing Godinez, 509 U.S. at 401 n.12).

Once a defendant asserts his right to proceed pro se, the trial court must inform the

defendant about “the dangers and disadvantages of self-representation, so that the

record will establish that he knows what he is doing and his choice is made with his eyes

wide open.” Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008) (citing

Faretta, 422 U.S. at 835). “When advising a defendant about the dangers and

disadvantages of self-representation, the trial judge must inform the defendant that there

are technical rules of evidence and procedure, and that he will not be granted any special

consideration solely because he asserted his pro se rights.” Id. (quotation and citation

omitted). The trial court need not, however, follow a formulaic questioning or particular

script in ascertaining the knowing and voluntary nature of the waiver of counsel, and a

written waiver of the right is not required. Cudjo v. State, 345 S.W.3d 177, 184 (Tex.

13
App.—Houston [14th Dist.] 2011, pet. ref’d) (citing Burgess v. State, 816 S.W.2d 424,

428–29 (Tex. Crim. App. 1991) (en banc)).

To assess whether waiver is effective, the courts consider the totality of the

circumstances. Williams, 252 S.W.3d at 356. The court must examine the particular

facts and circumstances surrounding that case, including the background, experience,

and conduct of the accused. Id. “But a trial judge has no duty to inquire into an

accused’s age, education, background[,] or previous mental history in every instance

where an accused expresses a desire to represent himself.” Id. (quotation omitted).

B. Discussion

At the November 9 pretrial hearing, appellant informed the trial court that he

wished to proceed pro se, which prompted the following exchange:

THE COURT: Now, Mr. Stafford, you understand and you’ve
heard preliminarily the dangers of representing
yourself? You understand that?

THE DEFENDANT: I’m not concerned with that issue.

THE COURT: All right. You understand that you’re required
to comport yourself as if you were an attorney?

THE DEFENDANT: I can articulate. I can comport myself.

....

THE COURT: All right. You understand that you need to be
familiar with the rules of criminal procedure and
the rules of evidence, and to be quite frank, as
[appellant’s attorney] mentioned, the success
rate of pro se litigants in a criminal trial is very
low, sir. Do you understand that?

THE DEFENDANT: Uh-huh. I understand that.

14
 THE COURT: All right. And if you go to trial representing
yourself, you will be—once again, I’m not here
to play favorites. I’m not here to give legal
advice. You understand that I can’t give you
legal advice, and you will be held to the same
standards as I hold the State? Do you
understand that, sir?

THE DEFENDANT: I understand that.

We do not agree with appellant that “the record is void of any meaningful

communication by the court.” On the contrary, the trial court expressly cautioned

appellant regarding the dangers and disadvantages of self-representation, the need to

understand and apply technical rules of evidence and procedure, and the fact that

appellant would not be given special consideration because he asserted his pro se rights.

See Williams, 252 S.W.3d at 356. We overrule appellant’s fifth issue.

VII. COMPETENCY FOR SELF-REPRESENTATION

By his fourth issue, appellant argues the trial court should have concluded

appellant was a “gray area” defendant not competent to represent himself.

A. Standard of Review and Applicable Law

There is a “mental-illness-related limitation on the scope of the self-representation

right.” Indiana v. Edwards, 554 U.S. 164, 171 (2008); Chadwick v. State, 309 S.W.3d

558, 561 (Tex. Crim. App. 2010). “That is to say, the Constitution permits States to insist

upon representation by counsel for those competent enough to stand trial . . . but who still

suffer from severe mental illness to the point where they are not competent to conduct

trial proceedings by themselves.” Edwards, 554 U.S. at 178.

15
 The trial judge is in the best position to make the decision of whether a mentally ill

defendant is competent to proceed pro se. Id. at 177; Chadwick, 309 S.W.3d at 561.

Accordingly, since this is a mixed question of law and fact that turns on an
evaluation of credibility and demeanor, we review the trial judge’s ruling for
an abuse of discretion. We afford almost total deference to a trial judge’s
rulings on mixed questions of law and fact when the resolution of the issue
turns on an evaluation of credibility and demeanor. We view the evidence
in the light most favorable to the trial judge’s ruling. And we will imply any
findings of fact supported by the evidence and necessary to support the trial
judge’s ruling when the judge failed to make explicit findings.

Chadwick, 309 S.W.3d at 561 (citations omitted).5

B. Discussion

The trial court did not make any factual findings regarding appellant’s competency

to represent himself, and there was no separate inquiry regarding the matter. After

admonishing appellant of the risks and dangers inherent to self-representation, the trial

court allowed appellant to proceed pro se. The trial court, however, also appointed a

consulting attorney to be available should appellant need or want one. The trial court,

after engaging appellant, observed nothing that undermined appellant’s competency to

represent himself. See Chadwick, 309 S.W.3d at 562 (holding reviewing courts imply

factual findings supported by the evidence and necessary to support the trial court’s ruling

“if they are not contrary to any specific factfindings.”).

5
Indiana v. Edwards, 554 U.S. 558 (2010) and Chadwick v. State, 309 S.W.3d 558 (Tex. Crim.
App. 2010) protected the State’s denial of a defendant’s Sixth Amendment right to self-representation under
the so-called “mental-illness-related limitation.” Subsequent case law expanded the limitation to reach
claims similar to the one asserted here, where appellant challenges the State’s allowance, rather than
denial, of appellant’s self-representation right. See, e.g., Cerf v. State, 366 S.W.3d 778, 782–86 (Tex.
App.—Amarillo 2012); Cudjo v. State, 345 S.W.3d 177, 183–87 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d); Valero v. State, No. 13-09-00167-CR, 2010 WL 2205231, at *5–7 (Tex. App.—Corpus Christi June 3,
2010, pet. ref’d) (mem. op., not designated for publication).
16
 Appellant does not identify what severe mental illness precluded his ability to

proceed pro se, and he does not provide any record references exemplifying his

incompetence to represent himself. 6 Cf. Chadwick, 309 S.W.3d at 562 (holding

defendant was incompetent to represent himself because record showed he interrupted

his attorney several times, made rambling monologues, made inapposite objections, and,

against his attorney’s advice, cursed the trial judge “with every Israeli curse there is[]”,

declaring, “May Yaweh curse you till the end and may I put an eternal indictment on you

and I will prosecute you to eternity.”). Appellant makes much of the fact that he first

requested to proceed pro se in January 2011—one month before the trial court declared

him incompetent to stand trial. Appellant deduces he was therefore incompetent in

January 2011 when he requested to proceed pro se. Even assuming appellant’s

conclusion is correct, it does not invalidate the same request that appellant made in

November 2011—after he was deemed competent to stand trial.

Appellant also claims that upon being declared competent, the trial court

nevertheless ordered an insanity evaluation of appellant. Appellant fails to mention,

however, that the order was a granting of his motion to appoint a psychologist to evaluate

him in preparation for making an insanity defense. This grant does not reflect the trial

court’s lack of confidence in appellant’s competence to stand trial or proceed pro se.

6
Although appellant fails to mention what mental illness precluded his self-representation, we
observe that the Texas Department of State Health Services competency evaluation reports that appellant
had been diagnosed with “Bipolar I Disorder, Most Recent Episode Manic, Severe With Psychotic
Features.” A bipolar disorder alone, however, does not mean a defendant is not competent to represent
himself. Cudjo, 345 S.W.3d at 187. There must be some additional showing that a defendant is mentally
incompetent to represent himself. Id. Here, appellant does not cite any additional evidence or explain
how his mental illness affected his ability to proceed pro se. Moreover, the competency report noting a
bipolar disorder also recorded that appellant was taking medications for his mental health. In short,
appellant’s bare assertion that he had a severe mental illness that the court should have recognized is
insufficient. See TEX. R. APP. P. 38.1(i).
17
 On the second day of appellant’s trial, appellant became upset because the

sheriff’s office transported him to the courtroom one hour late. Appellant informed the

trial court that he was no longer capable of comporting himself, and he withdrew from

self-representation. Appellant allowed his consulting attorney to assume lead counsel,

and appellant requested to be excused from being present at his trial, which the trial court

granted. We observe that, until that moment, appellant made appropriate pretrial

motions, conducted reasoned voir dire, made proper legal objections, such as hearsay

and speculation objections, cross-examined witnesses, gave an opening statement, and

even discussed nuanced legal issues such as optional completeness, chain of custody,

Miranda issues, and suppression issues. Appellant showed respect for the trial court,

the attorneys, and the witnesses. See Cudjo, 345 S.W.3d at 186–87 (holding

defendant’s clear communications, coherent questions, objections, respect for the trial

court, attorneys, and witnesses, and ability to advance a defensive theory showed the

defendant was competent to represent himself). In other words, the trial court was never

put on notice by appellant’s performance or conduct that a severe mental illness

hampered his ability to represent himself.

The trial court was in the best position to evaluate whether appellant manifested a

severe mental illness that would render him incompetent to proceed pro se. See

Edwards, 554 U.S. at 177; Chadwick, 309 S.W.3d at 561. Construing the evidence in

the light most favorable to the trial court’s ruling, we conclude, in the absence of

countervailing evidence, the trial court did not abuse its discretion in allowing appellant to

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exercise his Sixth Amendment right to represent himself. See Chadwick, 309 S.W.3d at

561. We overrule appellant’s fourth issue.

VIII. FUTURE DANGEROUSNESS FINDING

By his eighth issue, appellant challenges the sufficiency of the evidence

supporting the jury’s future-dangerousness determination. After reviewing the trial

court’s punishment charge and judgment, we find no future dangerousness instruction to

the jury or determination by the jury. Appellant’s punishment was enhanced pursuant to

the jury finding that appellant was a repeat felony offender. See TEX. PENAL CODE ANN.

§ 12.42 (West Supp. 2011). We overrule appellant’s eighth issue.

IX. 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
3rd day of October, 2013.

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