MEMORANDUM OPINION
No. 04-11-00591-CR
Johnny Chano EVANS,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR3484
Honorable George H. Godwin, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: May 9, 2012
AFFIRMED
A jury found appellant, Johnny Chano Evans, guilty of injury to a disabled individual and
assessed punishment at eleven years’ confinement. We affirm.
BACKGROUND
Appellant was indicted on April 28, 2011 for the offense of injury to a disabled
individual. The alleged offense occurred on or about December 17, 2010. Prior to his
indictment, an attorney was appointed to represent appellant. Appellant’s attorney filed a
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Motion Suggesting Incompetency and Request for Examination to determine appellant’s
competency to stand trial. The case was referred to a criminal law magistrate and, after
appellant’s competency evaluation by a psychiatrist, a hearing was held to determine appellant’s
competency to stand trial. 1 The magistrate judge determined appellant was competent to stand
trial. At the same hearing, appellant expressed his desire to waive his right to counsel and
represent himself. The magistrate judge conducted a Faretta hearing in which the court
questioned appellant about his age, education, and experience, among other factors, and noted
the appellant’s competency evaluation. See Faretta v. California, 422 U.S. 806, 835–36 (1975)
(noting criminal defendant has constitutional right to conduct his own defense at trial, but record
must reflect a knowing and intelligent election to proceed without counsel). After this hearing,
the magistrate judge determined appellant was competent to represent himself at trial, but
nonetheless, appointed his prior court-appointed attorney to act as standby counsel.
Subsequently, the day before trial, the trial judge conducted another Faretta hearing and
concluded appellant was competent to represent himself. At trial, appellant represented himself,
without the help of his standby counsel.
DISCUSSION
In his sole issue on appeal, appellant contends his right to representation under the Sixth
Amendment to the United States Constitution was violated when the trial court allowed him to
waive representation of counsel. Appellant asserts this waiver was not knowingly and
voluntarily given because he was not competent to make such a waiver.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST. amend. VI.
The right to trial counsel is regarded as fundamental. Gideon v. Wainwright, 372 U.S. 335, 343–
1
The psychiatric evaluation of appellant’s competency is not in the record.
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44 (1963). An indigent defendant is entitled to appointed counsel unless the defendant
competently, intelligently, and voluntarily waives the right to counsel. Id. at 340–45. To assess
whether a waiver is effective, we “consider the totality of the circumstances,” which means we
“must examine ‘the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.’” Williams v. State, 252 S.W.3d 353, 356
(Tex. Crim. App. 2008) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Additionally,
the Sixth Amendment includes the reciprocal right to self-representation. Faretta, 422 U.S. at
818–19. However, before a defendant is entitled to self-representation, he or she must
unequivocally assert that right. Williams, 252 S.W.3d at 356.
Once a defendant asserts the right to self-representation, under Faretta, 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 eyes
open.’” Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269,
279 (1942)). When advising a defendant about the dangers and disadvantages of self-
representation, the trial court must inform the defendant “that there are technical rules of
evidence and procedure, and he will not be granted any special consideration solely because he
asserted his pro se rights.” Williams, 252 S.W.3d at 356 (quoting Johnson v. State, 760 S.W.2d
277, 279 (Tex. Crim. App. 1988)).
Recently, the United States Supreme Court addressed the relation between the standard
for competence to stand trial and the right of self-representation. Indiana v. Edwards, 554 U.S.
164, 172 (2008). The Court recognized that a mental competency limitation exists on the right to
self-representation, and that competence to represent oneself during a trial involves a higher
standard than is required for competence to stand trial. Id. The Court also noted that “the
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Constitution permits judges to take realistic account of the particular defendant’s mental
capacities by asking whether a defendant who seeks to conduct his own defense at trial is
mentally competent to do so.” Id. at 177–78.
Here, we note that both the magistrate judge and the trial judge conducted informal
inquiries into appellant’s mental competence when two Faretta hearings were held on
appellant’s request to represent himself. See Faretta, 422 U.S. at 835–36. Over the course of
appellant’s two hearings, both judges comprehensively focused on the mandated questions as to
whether appellant was competent to represent himself and whether he was aware of extensive
problems that might arise in the undertaking. Appellant indicated he understood the potential
problems and that he still wished to proceed pro se. At both hearings, the judges explained to
appellant the dangers and disadvantages of self-representation. Appellant, however, was
adamant and maintained his desire to represent himself.
At the first Faretta hearing, the magistrate judge informed appellant of the range of
punishment he was facing, verified that he understood the charges against him, and admonished
him at length on the dangers and disadvantages of self-representation. Additionally, the
magistrate judge inquired into appellant’s educational and work background, and whether
appellant had any history of mental disorders or psychiatric treatment, to which he replied he did
not. Throughout this hearing, appellant maintained his desire to represent himself. After several
more admonishments, the magistrate judge found appellant mentally competent to represent
himself.
On the day before trial, the trial judge conducted another Faretta hearing in which he
repeated the magistrate judge’s same inquiries and admonishments. Having received
substantially similar responses from appellant, the trial judge also found appellant mentally
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competent to represent himself. The trial judge then permitted appellant to proceed to trial
representing himself, with appointed standby counsel.
Appellant argues on appeal that he did not fully appreciate the nature of the proceedings
or the gravity of the charges against him because his only concern was the most expeditious
resolution of his case. Appellant points to evidence in which he explained to the court during the
first Faretta hearing that he was tired of waiting and wanted to get his legal matters resolved.
Appellant also contends that his answers in response to the questions of both judges indicate his
misunderstanding of how the criminal process worked, the importance of proper presentation of
evidence, or how, even though factually innocent, he could be nonetheless convicted if he made
a legal error.
However, at the first hearing, appellant indicated he had gone through the twelfth grade
and that he had studied paralegal work on his own. Appellant did not indicate he suffered from
any mental illnesses or diseases. Appellant also acknowledged that he understood his
entitlement to a court appointed attorney, but stated he did not want one and added:
I mean, I know—okay, I know how the system is. [The appointed attorney is]
coming and talking about . . . getting a private investigator. It’s just taking time.
I’m ready to go to trial . . . I mean, I’ve been here six months.
Before the second hearing, appellant announced he was not ready because he did not have any
motions to file because he had trouble accessing the jail law library, indicating appellant had at
least a basic understanding of the legal process. Also, appellant objected to the complaining
witness’s testimony and claimed she was mentally ill and that he was concerned about her
capability to testify—further demonstrating his basic understanding of trial procedure. In
addition, appellant indicated to the trial judge that he had experience representing himself pro se
in a prior civil case. Considering the totality of the circumstances, we see no evidence in any of
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these pre-trial proceedings to suggest appellant did not knowingly, intelligently, and voluntarily
waive his right to counsel.
Similarly, appellant contends the trial court erred in failing to stop his self-representation
when it became obvious during the course of the trial that he was not competent to represent
himself. As proof, appellant points to his statements during voir dire and trial that were “bizarre
and nonsensical.” For example, appellant claims his opening statement was irrational because he
emphasized a quote from former President Bill Clinton and rambled about his neighborhood and
his work ethic. Appellant also offers, as proof of his incompetency, his lack of presenting any
evidence during his case-in-chief. In response, the State contends appellant did not need the skill
and experience of a lawyer in order to competently and intelligently represent himself.
We agree with the State. The record contains evidence that appellant had a consistent
defense strategy in which he alleged the complaining witness made up her allegations against
him because she was mentally ill and that her injuries were the result of her own physical
handicaps. Additionally, appellant showed an ability to conduct himself appropriately in court,
including asking potential jurors’ coherent questions and cross-examining the State’s witnesses.
See Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999) (determining defendant was
not incompetent in his waiver of counsel because he “showed during his period of self-
representation the ability to communicate effectively and to participate in the proceedings against
him”). For example, appellant made a challenge for cause during voir dire. Further, he objected
to several questions and comments by the State, several of which were sustained by the trial
judge.
In light of the record, we conclude appellant’s decision to represent himself pro se was
made knowingly, intelligently, and voluntarily. And, although a defendant’s choice of self-
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representation need not be “wise” and may ultimately be “to his own detriment,” appellant
demonstrated he was able to communicate effectively and to participate in the proceedings
against him. See Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989). We conclude
that the record establishes appellant’s awareness of his choice to waive counsel and represent
himself, and that he made the decision with “eyes open.” Faretta, 422 U.S. at 835.
CONCLUSION
We overrule appellant’s issue on appeal and affirm the judgment of the trial court.
Sandee Bryan Marion, Justice
Do not publish
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