Opinion filed July 29, 2010

In The

Eleventh Court of Appeals 

__________

Nos. 11-09-00158-CR & 11-09-00159-CR

__________

BENNIDITO MATA BITOLAS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause Nos. 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 servant1and 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 the 

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 knowingly, intelligently, and voluntarily made.

Applicable Law

A criminal defendant has a fundamental right to counsel. U.S. CONST. AMEND. VI; TEX.

CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 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 835; Williams, 252 S.W.3d at 356.

Proceedings 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 dismissed, and the 

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

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

2008 to April 2009 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, 2009, 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]: Yes, 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 counsel and exercising his 

right to self-representation. Appellant stated that he had completed not only the eighth grade and 
3

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, [appellant]?

[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 to 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, sir.

THE COURT: Well, no, 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]: Yes.

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.
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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 on 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 right 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 again 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 TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.