Affirmed and Opinion filed August 20, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00177-CR
MELVIN EUGENE FLETCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1376099
OPINION
Appellant Melvin Eugene Fletcher was charged with felony theft of metal after a
police officer witnessed him taking copper from a business. At a hearing before trial,
appellant waived his right to counsel. He was subsequently convicted and sentenced to
seven years in prison. Appellant raises two issues on appeal.
In his first issue, appellant argues that his waiver of his right to counsel was
ineffective because the trial court failed to inform him of the possible defenses and
mitigating circumstances and because the trial court did not conduct further inquiry into
his competency after he raised an invalid defensive theory. We conclude that the trial
court’s questions and admonitions ensured that appellant’s waiver was competent,
knowing, intelligent, and voluntary.
In his second issue, appellant argues the trial court abused its discretion by
finding him competent to conduct his own defense at trial. Appellant asserts that a
constitutional mental-illness limitation on the right of self-representation required the
trial court to insist that he proceed with the assistance of counsel. We conclude that no
inquiry beyond appellant’s competence to stand trial was constitutionally required, but
in any event there is evidence to support an implied finding that appellant was also
competent to conduct his own defense. We therefore affirm.
BACKGROUND
While working a second job for Electric Power Design, Officer Rudy Deleon of
the Houston Police Department saw appellant steal copper from the business. Appellant
was indicted for felony theft of metal. Attorney Jamie Sulla was appointed to represent
appellant.
Subsequently, the presiding judge ordered a psychiatric examination of appellant.
As evidence, the judge cited the following statement, presumably from Sulla: “client
cannot communicate with me. He doesn’t understand any questions I ask.” The
resulting report indicated that appellant was receiving medication and required fourteen
days to stabilize. Approximately two months later, Sulla filed a motion requesting a
psychiatric evaluation for competency. Sulla stated the following reason for the request:
“[T]he client cannot communicate appropriately with [me.] [H]e has random[,] jumbled
thoughts[.] [He] wants to be referred to as property and not a person.” The trial court
granted the motion and issued an order directing the Harris County Forensic Services to
determine whether appellant was competent to stand trial.
Dr. Stephen McCary, a psychologist licensed by the Texas State Board of
2
Examiners of Psychologists, conducted the examination. McCary’s report reveals that
appellant did not participate in the competency evaluation. Appellant suggested that
McCary instead use records and other jail sources to gather information.
McCary spoke with several detention officers. Officer Henley conceded that he
had “very limited information” to provide but stated that he had encountered “no
problems in dealing with [appellant].” Officer Ballard stated that appellant “did not
demonstrate any bizarre or unusual behaviors.” Appellant “interacted with the other
inmates[.] He played games such as chess, he wrote or read letters, and he watched
television.” Ballard stated appellant could follow “basic instructions if he chose to do
so.” Appellant did, however, make “inappropriate, rude sexual comments to female
staff.” Officer Gladney informed McCary that appellant “spent a lot of time in bed” and
“tended to stay to himself.” Appellant “interacted with other inmates a few times.”
Appellant followed instructions and “exhibited ordinary inmate behavior.” He did not
demonstrate “any inappropriate or unusual behaviors.”
McCary also examined appellant’s jail medical records, which indicated that
appellant was taking medication to control a seizure disorder. McCary noted appellant
had been prescribed an anti-depressant drug and an anti-anxiety drug. Appellant’s
records also indicated appellant had a history of marijuana and alcohol abuse. McCary
concluded the report by stating that jail medical records indicated appellant had
exhibited the following behaviors within the past three months:
feedback from psych techs reveal Patient to be in no acute distress and
interacting with others and watching TV; reported by staff as eating well
and sleeping well; appeared anxious, barely making eye contact, acting as
if internally distracted, uncooperative with exam; volunteered without
asking “I was molested as a child”; claiming he is paranoid and hearing
voices and seeing shadows; not on anti-psychotics, thought process was
goal-directed; no evidence of bizarre statements or looseness; he is
laughing and talking with other inmates; Patient was closely observed
during his admission to inpatient unit and not observed to have signs of
psychotic disorder; at one point he became angry and asked “why am I
3
here”; the necessity of good communication with lawyer was reviewed and
the consequences of malingering were briefly discussed; Patient terminated
the interview abruptly and walked out of the room . . . .
McCary diagnosed appellant with anxiety disorder, cannabis abuse or dependence,
alcohol abuse or dependence, antisocial personality disorder, and malingering. He
stated that appellant demonstrated signs of mental illness but concluded appellant’s
mental illness impaired him only to a “mild degree.” McCary found appellant
competent to stand trial.
Approximately six weeks later, appellant filed a handwritten motion purportedly
waiving his right to counsel and requesting to proceed pro se.1 Nine days later, Sulla
filed a motion to withdraw as attorney because appellant filed a complaint with the state
bar against her and “made inappropriate comments . . . of a personal nature” in a letter.
The trial court granted Sulla’s motion to withdraw. The court conducted a hearing
pursuant to defendant’s request to waive counsel and proceed to trial pro se. At the
conclusion of the hearing, the trial court granted appellant’s request.
Because they are relevant to appellant’s issues on appeal, we discuss several of
the pretrial motions filed by appellant after the trial court granted his request to proceed
pro se. Almost two months after his request was granted, appellant filed a two-page
handwritten motion entitled “Legal Notice Name Declaration Correction and
Publication.” The motion begins:
I Melvin Fletcher Al, being duly affirmed, standing squarely, Declare and
Proclaim upon Divine Law; Nature’s Law; Universal Law; Moorish
Birthrights; International Law; and Constitutional Law; Declare and say: I,
being previously Identified by the Union States Society of North America –
U.S.A. under the colorable, word-ship name Melvin Fletcher, do hereby
refute the fraud; make Public and Publish my Corrected National Name;
Declare and Affirm my true Proper Person Status; and reclaim my rightful
1
The document is titled “Faretta Warnings Waiver Of Court Appointed Counsel Court
Findings And Order Allowing Defendant To Proceed Pro Se.”
4
Social and Cultural Life of the State . . . .
The motion continues along these lines.
The same day, appellant filed another handwritten motion entitled “Judicial
Notice and Proclamation To All Elected United States Republic Officials and Public
Servants of Federal, State, City and Municipal Governments, Personnel and Corporate
Entities Concerning the Constitution and all Statutory and Civil Law Codes of the Lant
[sic] etc. know All Men by These Presents: Disclaimer.” In the motion, appellant
asserts that he is “a Noble of the Al Moroccan Empire (North America)” and appears to
argue that the United States has no jurisdiction over him. The motion cites the United
States Supreme Court’s opinion in Dred Scott v. Sandford, 60 U.S. 393 (1856), for the
proposition that African Americans “whether held in slavery or free were not included
and were not intended to be included in the United States Rights Republic Jurisdiction.”
Appellant also filed a motion entitled “Final Notice! Judicial Notice and
Proclamation Motion to Dismiss – Notice of Intent to Impose Penalties.” He reiterated
his Moorish ancestry and argued that he “retain[ed] all substantive rights and
Immunities from taxation and from Criminal and Civil Jurisdiction by and of the
U.S.A.”
The trial court issued an order granting a second motion for psychiatric
examination. Dr. McCary once again examined appellant to determine whether he was
competent to stand trial.2 Appellant again declined to participate in the evaluation.
McCary wrote appellant appeared
irritated and he was resistive. He also shook his legs in a nervous manner.
He commented that the Judge was surprised by an effective defense that he
had developed regarding his case and he commented that this is why he
was referred for a competency evaluation. He said that he believed that the
Judge was “stalling” by ordering a competency evaluation for him. He
2
In the interim, appellant filed two more motions reiterating the arguments raised in his prior
motions. The motions were filed on November 20, 2013.
5
stated that he does not think that he has any problems that would warrant
his undergoing a competency evaluation. (He asserted, “I’ve got all my
faculties.”)
McCary contacted Detention Officer Trater, who reported that appellant had not
exhibited any bizarre or unusual behaviors. Appellant generally kept to himself, had not
caused any problems, and did not interact with other inmates. McCary ruled out
malingering as a possibility. He concluded that appellant’s mental illness impaired him
to a “mild (moderate) degree.” Based on the new information from Trater and the prior
information from the other detention officers, McCary deemed appellant competent to
stand trial.
At trial, appellant appeared pro se before a different judge. The trial court opened
the proceedings by announcing, “This is Cause No. 1376099, State of Texas vs. Melvin
Eugene Fletcher.” Appellant asserted, “No, sir. This Court cannot force an
acquiescence upon me to an artificial construct. There’s no statute of limitations on
fraud and that’s what the states are committing and surreptitiously incorporating me
through – .” The court interrupted, asking: “You’re not Melvin Eugene Fletcher?”
Appellant responded:
Melvin Fletcher is a fiction created by the corporate state of Illinois. He
does not have a nationality. I have a nationality. I’m a Moors Aboriginal
indigenous to northwest Amexem. I’m being subjugated to an alias
subjugation. I’m not the same nation, jurisdiction, custom, or national
peers. The State cannot hold judgment on me. This is all in the court, the
Decolonization Resolution 1514, of which –
The trial court again interrupted appellant, stating that “For the purposes of the court
today, you are Melvin Eugene Fletcher.” Appellant and the trial court had an exchange
in which appellant reiterated some of his jurisdictional arguments and demanded to see
the trial court’s “oath of office.” The court denied appellant’s demand and attempted to
proceed, but appellant stated he did not consent to trial. After another series of
exchanges, appellant finally stated: “If you’re going to force me to go to trial, I guess I
6
have no other out then.”
The trial court read the indictment and asked for appellant’s plea. Appellant
responded that “[t]here’s definitely a conflict of identity here,” and the trial court
entered a plea of not guilty. When asked whether he wanted punishment assessed by a
jury or the court, appellant stated that he did not “consent to any claims that are devoid
of any true identity personages.” The trial court explained to appellant that if he did not
request that punishment be determined by the jury, the court would assess punishment.
Appellant responded with his jurisdictional arguments. The court then stated that it
would assess punishment. Appellant asked to submit four “writs” and asked the court to
read the documents into the record. The court accepted the writs but denied the request
to have the documents read into the record.
During voir dire, appellant repeated his jurisdictional arguments before the panel
members. After initially allowing appellant to present his theory, the State objected on
the grounds that appellant was discussing “matters outside the proceedings of voir dire.”
The court sustained the objection, but appellant nevertheless proceeded at some length
until he was interrupted by a venire member. Appellant essentially used all of his time
to discuss his jurisdictional argument before the panel. Once his time ended, the trial
court told the panel members that a judge had previously found appellant able to
represent himself. The court explained to the panel that appellant had been found
competent to stand trial by a psychologist, to which a venire person responded that he
would “like to know the name of the psychologist” and whether “he know[s] the
definition of competent.” Appellant did not exercise any strikes but instead requested a
“jury of my national peers, active Moors.” The jury was subsequently seated and the
trial commenced.
Appellant briefly mentioned his nationality again at the beginning of the guilt-
innocence phase and demanded to see the judge’s oath of office. He also cross-
examined three witnesses, posing questions related to the facts of the case. During his
7
closing argument, appellant did not raise his jurisdictional defensive theory but instead
attacked the State’s evidence. The jury found appellant guilty.
At the punishment phase, the trial court asked appellant if he would plead “true”
or “not true” to the enhancement paragraphs. Appellant did not enter a plea but instead
repeated his prior jurisdictional arguments. The State called a fingerprint expert to
prove the enhancements and appellant objected to admission of the State’s Exhibits 2
through 20, once again raising his jurisdictional defense. He reiterated his defense when
the court asked if he would like to present any evidence. The trial court found the
enhancement paragraphs true and sentenced appellant to seven years in prison. This
appeal followed.
ANALYSIS
I. Appellant competently, knowingly, intelligently, and voluntarily waived his
right to counsel.
In his first issue, appellant argues that he did not competently, knowingly,
intelligently, and voluntarily waive his right to counsel.3 Appellant asserts his waiver is
invalid because the trial court failed to admonish him properly and failed to inquire
about his competency to waive the right.
A. Applicable law
The Sixth Amendment right of an accused in a criminal proceeding to effective
assistance of counsel extends to the States through the Fourteenth Amendment. Gideon
v. Wainwright, 372 U.S. 335, 342–44 (1963); see U.S. Const., amends. VI, XIV. The
right to counsel may be waived if the defendant desires to represent himself. Faretta v.
3
Appellant poses this issue as a challenge to the sufficiency of the evidence to find his waiver
was knowingly, intelligently, and voluntarily made. In Collier v. State, 959 S.W.2d 621, 625 (Tex.
Crim. App. 1997), the Court of Criminal Appeals was presented with a case in which the defendant
seemingly challenged his waiver of counsel on legal sufficiency grounds. The Court did not, however,
examine the issue under the legal sufficiency standard of review. Instead, the Court examined whether
the waiver was knowing, intelligent, and voluntary. We follow Collier’s approach in this case.
8
California, 422 U.S. 806, 833–36 (1975) (recognizing a defendant’s “constitutional
right to conduct his own defense” that prevents a State from “compel[ling] [him] to
accept a lawyer he does not want”). To be constitutionally effective, the waiver of
counsel must be made (1) competently, (2) knowingly and intelligently, and (3)
voluntarily. Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997) (citing
Godinez v. Moran, 509 U.S. 389, 400–401 (1993); Faretta, 422 U.S. at 834–836). The
competence that is required of a defendant seeking to waive his right to assistance of
counsel is the competence to waive the right, not the competence to represent himself.
Prather v. State, 238 S.W.3d 399, 403 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)
(citing Godinez, 509 U.S. at 399). 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 being abandoned, as well as the dangers and disadvantages of self-
representation. Faretta, 422 U.S. at 835–36; Cudjo v. State, 345 S.W.3d 177, 184 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). The decision is made “voluntarily” if it is
uncoerced. Godinez, 509 U.S. at 401 n.12.
The record must contain proper admonishments concerning self-representation
and inquiries of the defendant that allow the trial court to assess his knowing exercise of
the right to defend himself. Prather, 238 S.W.3d at 403. If such factors are not
otherwise apparent from the record, a trial court’s inquiry regarding the accused’s
waiver of counsel should center on his background, age, experience, and education.
Cudjo, 345 S.W.3d at 184 (citing Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim.
App. 1988)). The accused should be aware 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. Cudjo, 345 S.W.3d at 184. The trial court, however, need not
follow formulaic questioning or a particular script in ascertaining the knowing and
voluntary nature of an accused’s waiver of counsel, and a written waiver of the right to
counsel is not required. Id.
9
B. The record supports the trial court’s acceptance of appellant’s waiver.
The trial court judge hearing appellant’s motion to waive counsel and proceed to
trial pro se informed appellant that he was charged with the state felony of theft of
metals that was enhanced with two prior felonies. He told appellant that if convicted, he
would face between two and ten years in prison, and a fine not to exceed $10,000. The
court asked appellant if he understood the charges. Appellant initially answered by
raising his jurisdictional arguments, but the trial court quickly focused appellant on the
issues at hand. Appellant then told the court that he understood the charges and the
range of sentencing. The court responded:
I’ve been doing this job for 27 years now and 133,000 cases. I’ve had 10
people do what you’re about to do. . . . They’ve all lost the case miserably.
You’re not going to win this thing. This is a very bad choice but a choice
you’re entitled to make if you choose to do so.
The court learned that appellant was thirty-seven years old, could read and write
English, and had completed the eleventh grade in high school. Appellant told the court
he had no learning disabilities or handicaps and that he had never been declared
mentally incompetent. The court explained to appellant that he had a right to a court-
appointed lawyer and that if he waived that right, he would likewise be waiving the
appellate issue of ineffective assistance of counsel. Appellant was informed that he
would be held to the same standard as a licensed attorney and would not receive special
treatment. Appellant claimed that he was familiar with the Penal Code section charged,
the Code of Criminal Procedure, and the Rules of Evidence. Appellant stated he was
aware of the dangers of self-representation.4 The court then allowed appellant to
represent himself but cautioned that he thought “this is the worst decision . . . you’ll
ever make in your young life.” Appellant signed a form indicating he received the
4
Appellant asked for standby counsel, and the court granted the request during the hearing. No
indication of standby counsel appears in the trial record, however. Any failure to provide standby
counsel has not been raised as an issue in this appeal.
10
Faretta warnings. The judge gave appellant one last chance to change his mind, but
appellant reiterated his desire to represent himself.
Based on this record, we cannot say that appellant’s decision to proceed pro se
was anything less than knowing and intelligent. The judge inquired into his age,
background, experience, and education. Cudjo, 345 S.W.3d at 184. Appellant was
informed that he would have to abide by the formal rules of evidence and procedure and
that he would not be afforded special treatment. Id. The trial court explained the charge
against appellant and the possible range of punishment, and it informed appellant that
his decision to waive counsel was poor and that it was likely the worst decision he
would make in his entire life. See Collier, 959 S.W.2d at 626 (finding valid waiver after
noting similar admonishments and stating “the trial court tried repeatedly to impress
upon appellant the extreme gravity of his request to proceed pro se and the likelihood
that it was a serious mistake”). Appellant was thus informed of the dangers of self-
representation, and he conceded that he was aware of the dangers during the hearing.
Moreover, nothing in the record indicates that appellant’s waiver was coerced and
therefore involuntary.
Appellant argues his waiver was nevertheless ineffective. He asserts that the
judge was required to conduct further inquiry into his competency because he raised
invalid jurisdictional arguments during the Faretta hearing, he was receiving medication
to treat anxiety and depression at the time, and his original trial counsel had requested a
competency evaluation. According to appellant, Blankenship v. State, 673 S.W.2d 578
(Tex. Crim. App. 1984), required the trial court to further apprise itself of his mental
state in assessing his competence to waive counsel.
During the Faretta hearing, appellant was generally responsive to the questions
posed. The judge asked appellant whether he had ever been deemed incompetent, and
appellant responded that he had not. Indeed, appellant had been found competent to
stand trial. Appellant complains that McCary made the competency determination
11
largely without speaking to him, but McCary attempted to speak to appellant and
appellant refused. We decline to hold that criminal defendants can obtain a new trial by
refusing to participate in competency evaluations before trial and then arguing on appeal
that the competency evaluation was defective due to their non-participation.5 Moreover,
McCary spoke with several detention officers and reviewed appellant’s medical records,
which revealed that appellant was receiving treatment for anxiety and depression, and
McCary nevertheless determined appellant was competent to stand trial. Appellant has
not argued that McCary’s determination was erroneous, and appellant cites no authority
for the proposition that his treatment for anxiety and depression made his waiver of
counsel ineffective.
Appellant’s misunderstanding of the law is not dispositive of his competency to
waive counsel, as the competence required of a defendant seeking to waive his right to
assistance of counsel is the competence to waive the right, not the competence to
represent himself. Prather, 238 S.W.3d at 403 (citing Godinez, 509 U.S. at 399); see
also Faretta, 422 U.S. at 836 (“We need make no assessment of how well or poorly
Faretta had mastered the intricacies of the hearsay rule and the California code
provisions that govern challenges of potential jurors on voir dire. For his technical legal
knowledge, as such, was not relevant to an assessment of his knowing exercise of the
right to defend himself.”). The judge was thus not required to inquire further into
appellant’s competency merely because appellant raised his invalid defense during the
hearing. We also note that every time appellant raised his jurisdictional defense, the
judge at the Faretta hearing was able to focus appellant on the relevant issues. The
judge was in the best position to determine whether appellant’s waiver was
constitutionally effective, and the record supports his determination. See Williams v.
5
Cf. Robinson v. State, 16 S.W.3d 808, 813 n.6 (Tex. Crim. App. 2000) (“[I]t is axiomatic that
a defendant who chooses to forgo the assistance of counsel and represent himself at his trial also
necessarily waives his right to complain on appeal that he was rendered ineffective assistance.” (citing
Faretta, 422 U.S. 806 at 835)).
12
State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008) (“The trial judge is responsible for
determining whether a defendant’s waiver [of counsel] is knowing, intelligent, and
voluntary.”).
Appellant also misplaces his reliance on Blankenship. In that case, the Court of
Criminal Appeals held that the trial court erred by not allowing the defendant to
represent himself. Blankenship, 673 S.W.2d at 585. In addition, Blankenship did not
involve an individual with a mental illness. Instead, the case centered on a criminal
defendant whose assertion of the right to self-representation was denied because the trial
court concluded he was unqualified due to a lack of legal proficiency. Blankenship, 673
S.W.2d at 584 (“While we may agree that the [defendant] flunked the trial court’s
impromptu evidentiary and procedural ‘pop quiz,’ the court’s ruling that appellant was
unqualified in that his lack of proficiency negated a ‘knowing and intelligent’ waiver,
was an improper ground for denial of appellant’s right to self-representation.”). We
thus disagree with appellant that Blankenship required the trial court to conduct further
inquiry into his competency.
Appellant also argues that his waiver was ineffective because the trial judge failed
to advise him of “the nature of the charge, the statutory offenses included within it, the
range of allowable punishment, the impact of the enhancement paragraphs, the possible
defenses to the charge, and any mitigating circumstances.” In support of this
contention, appellant points to the Court of Criminal Appeals’ opinion in Blankenship,
673 S.W.2d at 583–84, and a plurality opinion of the Supreme Court of the United
States in Von Moltke v. Gillies, 332 U.S. 708, 724–25 (1948).
Under the circumstances of this case, we disagree that the trial court’s
admonitions were insufficient to support a knowing and intelligent waiver. The trial
court did inform appellant that he was charged with a felony, the statutory offense of
theft of metals, and that he could be sentenced to up to ten years in prison if convicted.
A similar admonition was held sufficient in Collier, 959 S.W.2d at 626.
13
Appellant asserts that the trial court was nevertheless required to inform him of
possible defenses to the charge and any mitigating circumstances. In addition, when the
facts of the case indicate that a defendant plans to mount an unmeritorious defense,
appellant contends the trial court is required to correct a defendant’s misunderstanding
of the law.6 We disagree.
Appellant has not pointed us to any possible defenses or mitigating circumstances
of which the trial court failed to advise him. Moreover, Blankenship makes clear that
“no formulaic questioning” or “script” is required to establish a knowing and intelligent
waiver. 673 S.W.2d at 583. Neither Blankenship nor Von Moltke held that a trial
court’s admonitions were insufficient because the court failed to investigate and present
possible defenses and mitigating circumstances, or failed to advise a defendant that a
defense he planned to present was not legally viable.7 Rather, Blankenship held that the
trial court had erred by forcing counsel on a defendant on the ground that he lacked
understanding of the law and was not qualified to represent himself. 673 S.W.2d at 584.
Von Moltke involved an unrepresented German defendant who pleaded guilty to
espionage after routine questioning by the trial court and without being advised at all of
the consequences of her plea (including a possible death sentence). 332 U.S. at 709–10,
6
To further support his contention that the court was required to inform him of the viability of
his defense, appellant filed a letter brief after oral argument pointing us to an unpublished order issued
by U.S. Circuit Judge Richard Posner sitting as a District Judge of the Northern District of Illinois.
The order does not address whether a trial judge must inform criminal defendants attempting to waive
counsel and proceed pro se of the merits of their defensive theories. Instead, Judge Posner states that a
“defendant who has the cognitive ability to represent himself in a legal proceeding but refuses to
confine his defense to testimony and other evidence, and to argument, that are permissible in a legal
proceeding—refuses in effect to cooperate with the court and obey the law governing the proceeding—
forfeits his right to defend himself.” Judge Posner’s order is based on the defendant’s repeated
injection of frivolous arguments into the proceedings after receiving warnings from the court.
Nowhere does Judge Posner suggest that a judge may not accept a criminal defendant’s waiver of
counsel unless he informs the defendant of the merits of any defenses mentioned during the Faretta
hearing.
7
See Alcontor v. State, No. 11-07-00233-CR, 2009 WL 481864, at *5 (Tex. App.—Eastland
Feb. 26, 2009, pet. ref’d) (mem. op., not designated for publication).
14
717–18. In addition, the defendant in Von Moltke did not assert a right to self-
representation, and Faretta does not require a trial court to inform a defendant of
possible defenses or mitigating circumstances before that right can be exercised.
Appellant also relies on Buster v. State, a case from the Tyler Court of Appeals.
In Buster, the court of appeals held the defendant’s waiver was inadequate because,
among other things, the judge did not advise the defendant of the possible defenses to
the charges and mitigating circumstances. 144 S.W.3d 71, 77 (Tex. App.—Tyler 2004,
no pet.) (citing Blankenship, 673 S.W.2d at 583). Buster differs from our case,
however, because the record in Buster did not show that the defendant was advised of
the nature of the charges against him and the statutory offenses included within those
charges. 144 S.W.3d at 77. The trial court further did not inform the defendant of the
range of possible punishments, that he would not be afforded special treatment, and that
he would “not be granted any relief from the technicalities of the rules of evidence and
procedure.” Id.
Because the trial court admonished appellant regarding each of those matters in
our case, we hold that appellant validly waived his right to counsel. We overrule
appellant’s first issue.
II. The trial court did not abuse its discretion by permitting appellant to
conduct his own defense at trial.
In his second issue, appellant argues that even if he was competent to waive his
right to counsel, the trial court abused its discretion by finding him competent to
represent himself at trial.
A. Standard of review
The trial judge is in the best position to determine whether a mentally ill
defendant is competent to proceed pro se. Chadwick v. State, 309 S.W.3d 558, 561
(Tex. Crim. App. 2010). Because competence is a mixed question of law and fact that
15
turns on an evaluation of credibility and demeanor, we review the trial judge’s ruling for
an abuse of discretion. Id. 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. Id. We view the evidence in the light most favorable to
the trial judge’s ruling. Id. We will imply any findings of fact supported by the
evidence and necessary to support the trial judge’s ruling. Id.
B. Applicable law
The Constitution permits judges to take realistic account of the particular
defendant’s mental capacities in deciding whether a defendant who seeks to conduct his
own defense at trial is mentally competent to do so. Indiana v. Edwards, 554 U.S. 164,
177–78 (2008). An individual may well be able to work with counsel at trial and thus
satisfy the competency standard of Dusky v. United States, 362 U.S. 402 (1960), yet at
the same time be unable to carry out the basic tasks needed to present his own defense
without the help of counsel. Edwards, 554 U.S. at 175–76. Proceedings must not only
be fair, they must appear fair to all who observe them. Id. at 177 (quoting Wheat v.
United States, 486 U.S. 153, 160 (1988)). The Constitution thus “permits States to
insist upon representation by counsel for those competent enough to stand trial under
Dusky 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.
C. Although not constitutionally required, there is evidence to support an
implied finding that appellant was competent to conduct his own
defense.
Appellant argues that under Edwards, the trial court abused its discretion in
finding him mentally competent to conduct his own defense at trial. At the outset, we
note that no hearing was held on whether appellant was competent to conduct his own
defense at trial and no explicit ruling appears in the record. McCary twice found
appellant competent to stand trial, and the judge at the Faretta hearing determined that
16
appellant competently waived his right to counsel. According to appellant, Edwards
required the trial court to make a separate determination of his competency to conduct
his own defense, which differs from his competency to stand trial or waive counsel.
Appellant contends that, given his bizarre behavior, the trial court had a duty to further
apprise itself of his mental state.
This case differs from Edwards in one important respect, however. Edwards
decided whether the trial court improperly compelled a defendant diagnosed with severe
mental illness to proceed with counsel. Appellant asks us to hold that Edwards means
not solely that a trial court may insist on representation for defendants who are
incapable of conducting trial proceedings due to severe mental illness, but also that a
trial court must do so. We disagree that Edwards so holds.
In Edwards, the Supreme Court held that the Constitution “permits States to insist
upon representation by counsel” for the subset of criminal defendants who are
competent to stand trial but nevertheless unable to proceed pro se due to severe mental
illness. Edwards, 554 U.S. at 178. The Constitution does not require States to impose
counsel on this subset of defendants, however. See, e.g., id. at 173; United States v.
Berry, 565 F.3d 385, 391 (7th Cir. 2009) (“The Constitution may have allowed the trial
judge to block [the defendant’s] request to go it alone, but it certainly didn’t require
it.”); United States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009) (“Edwards itself
reaffirmed that a court may constitutionally permit a defendant to represent himself so
long as he is competent to stand trial.”); see also Wright v. Bowersox, 720 F.3d 979, 986
(8th Cir. 2013) (“[I]t would not be an unreasonable determination of clearly established
federal law for the state court to decline to impose a heightened standard of competency,
as Edwards announced no such requirement.”). We therefore conclude that the trial
court was not constitutionally required to conduct a further inquiry regarding appellant’s
competence to conduct his own defense once Dr. McCary found him competent to stand
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trial.8
Moreover, even if such an inquiry were required, the trial court had discretion on
this record to conclude that appellant was competent to conduct trial proceedings by
himself. Edwards indicates that “severe mental illness” is a threshold requirement for
mandating that a defendant accept the representation of counsel. 554 U.S. at 178.
McCary concluded appellant suffered from a mild to moderate degree of mental illness,
not from severe mental illness.
Furthermore, Edwards suggests that once a defendant is deemed competent to
stand trial, the relevant inquiry in determining whether a court may insist on counsel is
whether the defendant can “carry out the basic tasks needed to present his own defense
without the help of counsel.” Id. at 175–76. At trial, appellant cross-examined three of
the state’s four witnesses. He questioned Officer Deleon about the copper’s chain of
custody. He questioned Kim Yarbrough, an employee of Electric Power Design, about
her ownership of the property, and due to appellant’s questioning, Yarbrough conceded
that she was not the owner of the copper even though she was named as the owner in the
indictment. Appellant questioned Megan Schroeman, the Houston police officer who
collected the copper at the scene, regarding perceived inadequacies in the State’s
evidence on the wire’s approximate length and its value. During closing argument,
appellant did not rely upon his jurisdictional defensive theory. Instead, he argued that
the case should be dismissed due to certain deficiencies in the state’s evidence.
Appellant responds by pointing to his unmeritorious jurisdictional defensive
theory and the numerous motions he filed before trial as evidence that he suffered from
8
We recognize that if evidence suggesting the defendant may be incompetent to stand trial
comes to the attention of the trial court at any time before sentence is announced, the court on its own
motion must suggest that the defendant may be incompetent and hold an informal inquiry. Tex. Code
Crim. Proc. Ann. art. 46B.004 (West Supp. 2014), art. 46B.005(d) (West 2006). New competency
evidence did not come to the court’s attention during trial in this case, however, and appellant does not
argue he was incompetent to stand trial.
18
severe mental illness. But appellant’s mistaken belief regarding the validity of his
jurisdictional defense is not dispositive of whether appellant was competent to stand
trial or conduct trial proceedings by himself,9 particularly given the other evidence
discussed above regarding appellant’s trial performance and mild to moderate mental
illness.
Because a separate inquiry regarding appellant’s competency to conduct his own
defense was not constitutionally required, and in any event there is evidence to support
an implied finding that appellant was competent, we hold the trial court did not abuse its
discretion by allowing appellant to conduct his own defense at trial. We overrule
appellant’s second issue.
CONCLUSION
Having overruled appellant’s issues, we affirm the judgment of the trial court.
/s/ J. Brett Busby
Justice
Panel consists of Justices Jamison, Busby, and Donovan.
Publish — TEX. R. APP. P. 47.2(b).
9
See Guerrero v. State, 271 S.W.3d 309, 312–14 (Tex. App.—San Antonio 2008), rev’d in
part on other grounds, 305 S.W.3d 546 (Tex. Crim. App. 2009) (concluding similar defensive theory
amounted to “no evidence whatsoever to suggest to the court that [the defendant] was not competent to
stand trial” and therefore holding trial court did not abuse its discretion in failing to conduct a further
competency inquiry); see also Jones v. Norman, 633 F.3d 661, 669 n.3 (8th Cir. 2011) (“Neither
Edwards nor any other precedent empowers a trial court to conduct a searching inquiry into a
defendant’s ability to successfully represent himself before allowing him to proceed pro se.”).
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