Opinion filed July 29, 2010



## In The 

# Eleventh Court of Appeals

__________



### No s

. 11

- 09

- 00158

- CR & 11

- 09

- 00159

- CR

__________

BENNIDITO MATA BITOLAS , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 70 th District Court

Ector County, Texas

Trial Court Cause No s. A

- 35,354 & A

- 35,528

M E M O R A N D U M O P I N I O N

The jury convicted Bennidito Mata Bitolas of assault on a public servant 1 and possession

of heroin

. 2 In each case, the jury found both enhancement allegations of prior felony convictions

for aggravated robbery and for murder to be true. The jury assessed punishment at confinement

for life for the assault on a public servant offense and confinement for twenty years for th e

possession offense. We affirm.

1 11

- 09

- 00158

- CR.

2 11

- 09

- 00159

- CR.2 Issue on Appeal

In his sole issue on appeal in each case, appellant contends that the trial court erred in

allowing him to represent himself at trial. Specifically, appellant contends that his waiver of

counsel was not k nowingly, intelligently, and voluntarily made.

Applicable Law

A criminal defendant has a fundamental right to counsel. U.S. C ONST

. A MEND . VI; T EX

.

C ONST

. a rt. I, § 10; T EX

. C ODE C RIM

. P ROC

. A NN

. a rt. 1.051 (Vernon Supp. 2009 ); Faretta v.

California , 422 U.S. 806 (1975); Williams v. State , 252 S.W.3d 353 (Tex. Crim. App . 2008).

After proper admonishment, a defendant may waive his right and assert his right to represent

himself. Article 1.051(f); Faretta , 422 U.S. at 8 35 ; Williams , 252 S.W.3d at 356.

Proc eedings in These Cases

The record in these cases reflect that Rick Navarrette was originally appointed to

represent appellant in the trial court. Appellant insisted that Navarrette be dismisse d, and the

trial court appointed Lawrence Barber as trial coun sel. The record before this court contains

over thirty

- five pro se motions, requests for relief, and proposed orders filed from December

200 8 to April 20 09 while appellant was represented by court

- appointed counsel. In each case,

appellant filed a pro se motion requesting the dismissal of Barber and the appointment of his

third trial counsel in nine months. Appellant also asserted his right to self

- representation.

On April 27, 200 9 , the trial court conducted a hearing on appellant’s request to represent

himself. The hearing began:

THE COURT: [Appellant], you have filed a motion stating that you wanted to exercise your constitutional right of self

- representation; is that correct?

[ APPELLANT ] : Yes, sir.

THE COURT: And you have attached to your motion a waiver of attorney wishing to proceed Pro Se; is that correct, sir?

[ APPELLANT ] : Ye s, Your Honor.

The trial court then proceeded to question appellant concerning his educational background and

the reasons why he wished to waive his right to counsel, to explain the trial process, and to

admonish him concerning the consequences of waiving his right to co unsel and exercising his

right to self

- representation. Appellant stated that he had completed not only the eighth grade and3

his GED but also three college courses in history, science, and math. Appellant also stated that

he had been a participant in the criminal justice system in the past and that he had prepared all of

his pro se motions with no help from anyone. Toward the end of the hearing the following

occurred:

THE COURT : Now, you understand what I have just gone through with you, do you not, [ap pellant]?

[ APPELLANT ] : Yes, Your Honor.

THE COURT : Knowing all of those things, knowing all of these matters that we have gone through, and knowing that you will be at a distinct disadvantage in representing yourself in this case, do you still wish t o exercise your right to self

- representation, and represent yourself pro se in these matters, and proceed a week from tomorrow. Do you wish to represent yourself?

[APPELLANT] : Yes, Your Honor, because I have no other choice, s i r.

THE COURT : Well, n o, it is not a conditional thing. Do you wish to proceed representing yourself or do you not wish to proceed representing yourself, [appellant]?

[ APPELLANT ] : It is going to incriminate myself. I don’t think I’m at a disadvantage on my side and end up incriminating myself

, I don’t think it is a good idea, but I did file a Motion to Dismissal of Counsel.

THE COURT: That is not the motion before the Court.

[ APPELLANT ] : All right.

THE COURT : That is not the motion before the Court.

[ APPELLANT ] : Okay.

THE COURT : What I am asking you right now, [appellant]

- -

[ APPELLANT ] : Yes, Sir.

THE COURT : You acknowledged that you will be at a disadvantage.

[ APPELLANT ] : Y es.

THE COURT : That is why I have gone through the last 30 minutes telling you about the trial process, and letting you know as best the Court can about why you would be placed at a disadvantage.4 Now, knowing all of those things, and acknowledging that you understand all of those matters that we have just gone through, do you desire to exercise your right to self

- representation and waive your right to court

- appointed counsel since the Court has previously found that you are indigent.

Do you or do you not?

[ APPELLANT ] : Yes, I will go ahead and represent myself, sir.

The hearing concluded with appellant signing a document titled “ admonishment o n waiving right

to an attorney ” and with appellant affirmatively stating that he understood that he was waiving

his right to appointed counsel and that he was exercising his ri ght to represent himself. The trial

court reminded appellant that the trial of his cases had been postponed once before because of his

“insistence of dismissing [his] first court

- appointed counsel” and that the trial court would not

continue the cases aga in because appellant wished to withdraw his waiver.

Analysis

Appellant was properly admonished and chose to represent himself. The record before

this court supports the trial court ’ s determination that appellant knowingly and intelligently

chose to waive his right to counsel and to exercise his right to proceed pro se. Faretta

, 422 U.S.

806 ; Williams , 252 S.W.3d 353 ; Ex parte Davis , 818 S.W.2d 64 (Tex. Crim. App. 1991);

Hubbard v. State , 739 S.W.2d 341 (Tex. Crim. App. 1987); Webb v. State , 533 S.W.2d 780 (Tex.

Crim. App. 1976). The sole issue in each case is overruled.

Holding

The judgments of the trial court are affirmed.

TERRY McCALL

JUSTICE

July 29, 2010

Do not publish. See T EX

. R. A PP

. P. 47.2(b)

.

Panel consists of: Wright, C.J., McCall, J., and Strange, J.