IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10629

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DONALD JOSEPH WEST,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:12-CR-49-1

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:*

A jury found Donald Joseph West guilty of aggravated bank robbery, 

using and carrying a firearm during and in relation to a crime of violence, and 

being a felon in possession of a firearm, violations of 18 U.S.C. §§ 922, 924, and 

2113. Although West was represented by the Federal Public Defender (FPD) 

through the Government’s case in chief and during the presentation of two 

defense witnesses, West insisted on proceeding pro se for the remainder of the 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 7, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10629

proceedings. Now represented by counsel, West argues that although he was 

mentally competent to stand trial, he was not mentally competent to represent 

himself at trial. Even under a de novo standard of review, West has not shown 

that the district court erred in granting his request to proceed pro se. 

Accordingly, we need not decide the appropriate level of review. See, e.g., 

United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).

A defendant has a constitutional right to represent himself at trial. 

Faretta v. California, 422 U.S. 806, 814-20 (1975). To exercise the right to selfrepresentation, the defendant must knowingly and intelligently forgo counsel, 

and his request to proceed without counsel must be clear and unequivocal. 

United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008). A defendant “may 

not waive his right to counsel or plead guilty unless he does so competently 

and intelligently.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (internal 

quotation marks and citations omitted). 

In Indiana v. Edwards, 554 U.S. 164, 178 (2008), the Supreme Court 

held that “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 whether they are not competent to conduct 

trial proceedings by themselves.” However, the Court declined to adopt a 

specific measure for determining a defendant’s ability to conduct a trial. Id. at 

175-77. 

West’s reliance on Edwards is misplaced for several reasons. First, in 

Edwards, the Supreme Court addressed the constitutionality of the denial of 

the right to self-representation; the Court did not address the competency of a 

defendant who is granted the right to self-representation, nor did it suggest 

that a trial court which allows a defendant to represent himself is required to 

first ascertain that he is capable of doing so. Cf. Panetti v. Stephens, 727 F.3d 

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398, 414 (5th Cir. 2013) (noting that “Edwards is permissive, allowing the state 

to insist on counsel, but not requiring the state to do so”), petition for cert. filed

(Jan. 27, 2014) (No. 13-8453); see also Wright v. Bowersox, 720 F.3d 979, 986 

(8th Cir. 2013) (concluding that Edwards did not announce a new 

constitutional rule requiring a state court to impose a heightened standard of 

competency when a defendant wishes to waive his right to counsel). Further, 

even assuming that the decision in Edwards is relevant to the instant case, 

West has not shown that his competency fell below a standard which would 

have required the district court to deny his request to represent himself. See 

Edwards, 554 U.S. at 178. 

West alternatively argues for the first time on appeal that the district 

court erred by denying his request to call witnesses in order to present his 

defensive theory of the case. We review his argument for plain error only. See

United States v. Perez-Solis, 709 F.3d 453, 462 (5th Cir. 2013). The exclusion 

of evidence does not necessitate reversal unless it affected the defendant’s 

substantial rights. United States v. Tuma, 738 F.3d 681, 687-88 (5th Cir. 

2013), petition for cert. filed (Mar. 19, 2014) (No. 13-1152). In assessing any 

error, this court “must consider the other evidence in the case and determine 

whether the improperly excluded evidence, if admitted, would have had a 

substantial impact on the jury’s verdict.” Id. at 688. West has not shown that 

the denial of the witnesses amounted to plain error, or that it affected his 

substantial rights. 

AFFIRMED.

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