In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-0037-CR
________________________
Charles Cleveland Nowden, Appellant
v.
The State of Texas, Appellee
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1182411D, Honorable Everett Young, Presiding
April 11, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Charles Cleveland Nowden was convicted of possession with intent to pass a
forged government document (money) and sentenced to eighty years confinement.
Prior to trial, appellant sought and was granted the right to represent himself. He
complains on appeal that the trial court erred in 1) permitting him to waive his right to
counsel because he was inadequately admonished, 2) failing to permit him to withdraw
his waiver of the right to counsel, and 3) denying his motion for new trial on those same
issues. We affirm the judgment.
Appellant was originally represented by retained counsel. On October 18, 2011,
he filed a Motion to Proceed Pro Se. A hearing was held on the motion on October 21,
2011. During that hearing, the trial court admonished appellant on the dangers of self-
representation but eventually honored appellant’s request. Appellant then executed a
written waiver of his right to counsel. Thereafter, a hearing on pretrial matters was held
on November 14, 2011, at which numerous defense motions were considered. A jury
was selected the next day, a process in which appellant participated. On the morning of
trial, that is November 16, appellant stated he was “going to revoke . . . [his] right to
represent . . . [himself] and put Lisa Mullen 1 back on the case.” At no time prior thereto
did he move to continue the proceeding or otherwise ask for a postponement to allow
him to prepare. Instead, he had moved for a speedy trial setting. Upon hearing the
request, the trial court responded:
If she appears, that will be great, but we’re not going to delay the
proceedings. You’ve made a decision to represent yourself. I’m not going
to allow you to manipulate, delay or frustrate the system, so we’re going to
proceed.
Appellant then complained that he had no way to prepare a defense in jail and again
stated he was revoking his waiver. The court answered: “Okay. If you want to have
Ms. Mullen come and represent you, that’s fine, but we’re not going to delay further
proceedings, okay?” Appellant then proceeded to represent himself throughout the trial.
However, he filed a motion for new trial through retained counsel, alleging the trial court
did not properly admonish him, his waiver was not clear and unequivocal, and the trial
1
Lisa Mullen was appellant’s prior retained counsel.
2
court should have provided him standby counsel. After a hearing, the trial court denied
the motion.
Waiver of Right to Counsel
Appellant first argues that the trial court did not properly admonish him before
allowing him to waive his right to counsel. According to appellant, these
admonishments should have included the fact that because he was incarcerated, there
would be restrictions on his access to discovery in the case, that the discovery was
voluminous, and that there might be insufficient time to review it. We overrule the issue.
Although a defendant has the right to assistance of counsel, that right may be
waived. Faretta v. California, 422 U.S. 806, 834-35, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975). For a waiver to be valid, 1) it must be intelligently and knowingly made, and 2)
the party waiving it must be made aware of the dangers and disadvantages of self-
representation. Cerf v. State, 366 S.W.3d 778, 783 (Tex. App.–Amarillo 2012, no pet.).
This obligates the trial court to “. . . make an inquiry, evidenced by the record, which
shows that the defendant has sufficient intelligence to demonstrate a capacity to waive
his right to counsel and the ability to appreciate the practical disadvantage he will
confront in representing himself.” Manley v. State, 23 S.W.3d 172, 173-74 (Tex. App.–
Waco 2000, pet. ref’d).
Here, the record discloses that the trial court informed appellant 1) of the charges
against him and the range of punishment if enhanced, 2) that he would be treated no
differently from an attorney, 3) that he would have to follow all of the Rules of
Procedure, the Penal Code, the statutes, the Constitution, and applicable rules, 4) that
he would have to follow rules to preserve any error in his case, 5) that attorneys have
3
specific training in the laws, 6) that his self-representation could result in a conviction, 7)
that a jury decides any factual issues, 8) that the charge against him was a third degree
felony if there was no enhancement, 9) that he might not have the experience or level of
training to properly object or preserve error, 10) that the court believed it would be a
mistake for appellant to represent himself, 11) that the court knew of several instances
when persons who represented themselves received long sentences and later regretted
self-representation, and 12) that he had the right to appointed counsel if he could not
afford to hire one. With this knowledge, appellant continued to insist on representing
himself. The trial court also determined that appellant had a high school education, that
he could read and write, that he could afford to hire an attorney, that he had never had
any mental or competency issues, that appellant believed he could become familiar with
the Penal Code and understand the law, that appellant had previously “[k]inda sorta”
represented himself in a federal court proceeding, and that appellant was not being
“tricked” into making his decision. The record reflects that appellant’s waiver was
intelligently and knowingly made. See Shaman v. State, 280 S.W.3d 271, 274 (Tex.
App.–Amarillo 2007, no pet.) (stating that the waiver was made intelligently and
knowingly when 1) the trial court inquired into the defendant’s education and his ability
to read and write, 2) the defendant had previously represented himself in a civil eviction
action, and 3) the trial court informed him of his right to counsel, the charges against
him, the possible maximum sentence, some of the ways that a sentence of
incarceration could affect his life, that he would be required to abide by the rules of
evidence and procedure and that he would not be granted special consideration
because he lacked training in the law).
4
As to the failure to admonish appellant that he would have difficulty in preparing
for trial due to his incarceration, the record reflects that the State held a meeting with
appellant at which time appellant was permitted to review the State’s file and take notes
if he wished. 2 Moreover, at a pretrial hearing, the State made other documents
available for review by appellant and represented that all documents would be available
for appellant’s use at trial. Though appellant was not permitted to take copies of most
of the documents to his jail cell for use because the State’s policy prevented its
documents from being taken into jail or prison facilities, he again did not move for a
continuance to further prepare. And, though appellant complained to the court that
there were more than 700 pages of documents for him to review in several hours, many
of those documents pertained to three other pending charges against him and not the
current charge. 3
It is true that a defendant must be generally aware of the practical disadvantages
of self-representation. Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988).
Yet, appellant cites us to no authority that the trial court was required to know and
inform him about the amount of discovery materials involved in the case or about every
possible obstacle he might encounter in preparing a defense due to his incarceration.
See Shaman v. State, 280 S.W.3d at 275 (holding that the validity of a waiver of
counsel was not dependent upon the trial court’s ability to foresee the complete
ramifications that a conviction for the offense might have).
2
Appellant executed a form certifying that on November 2, 2011, he viewed 1) the State’s witness
list and extraneous offense notice, and 2) the offense report for this case as well as the offense reports
and warrants for his other pending cases.
3
The record does not reflect how many of the State’s documents pertained to the offense which
was the subject of this trial.
5
Revocation of Right of Self-Representation
Next, appellant argues the trial court erred in not allowing him to revoke his right
of self-representation. We overrule the issue.
A defendant may withdraw a waiver of the right to counsel at any time. TEX.
CODE CRIM. PROC. ANN. art. 1.051(h) (West Supp. 2012). And, while appellant said, the
morning of trial and after jury selection, that “. . . I’m going to revoke my right to
represent myself and put Lisa Mullen back on the case,” it must be remembered that the
trial court stated it would be “great” if his counsel appeared. That, at the very least
acknowledged and accepted the revocation of his waiver. It simply opted not to delay
the proceedings given appellant's timing of his utterance. Furthermore, we are cited to
no authority requiring it to so delay the trial on the morning of its commencement and
after the jury was selected. Indeed, statute vests the trial court with discretion to
continue the trial for ten days. Id. We cannot say that its discretion was abused under
the circumstances before it. See Williams v. State, 356 S.W.3d 508, 521 (Tex. App.–
Texarkana 2011, pet. ref’d) (holding that when the defendant sought to substitute
retained counsel for appointed counsel at a pretrial hearing and retained counsel stated
he could not be ready for trial, the court was not required to delay the proceedings to
accommodate the tardy decision to retain counsel when the trial court did not bar
retained counsel from participating).
And, to the extent that appellant also argues on appeal that the trial court should
have appointed standby counsel or an investigator to assist him with discovery,
appellant requested neither. Moreover, there is no absolute right to standby counsel
even if the defendant is indigent. Hathorn v. State, 848 S.W.2d 101, 123 n.12 (Tex.
6
Crim. App. 1992); Kane v. State, 80 S.W.3d 693, 695 (Tex. App.–Fort Worth 2002, pet.
ref’d). Here, appellant was not even indigent.
Denial of Motion for New Trial
As for his complaint about his motion for new trial being denied him, appellant
has offered no separate argument with respect to it. Instead, we construe the matter to
encompass the substance of his first two issues. Since we overruled them, we overule
this one as well.
Accordingly, the judgment of the trial court is affirmed.
Per Curiam
Do not publish.
7
Charles Cleveland Nowden v. State
Combined Opinion