### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00493
- CR

Jereme Rucker, Appellant

v. The State of Texas, Appellee

FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- DC
- 19
- 201667, THE HONORABLE CHUCK MILLER, JUDGE PRESIDING

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

A jury convicted appellant Jereme R ucker of the offense of ag gravated ass ault with a deadly weapon , assessed punishme nt at two years ’ imprisonment, and recommended that Rucker be placed on commun ity supervision. The di stri ct court rendered judgment on the
verdict and placed R ucker on community supervision for three years. In five issues on appeal,
Rucker a sserts that the evidence is insuff icient to support his conviction, that he did not clearly
and un equiv ocally waive his right to counsel at trial, that the district court failed to investigate appellant ’ s competency to waive his r ight to counsel, that the distric t court abused its discretion by failing to order a competency examination and hold a competency trial , and that the district
court violated Rucker ’ s right to due process by allowing him to represent himself even though he was incompetent to conduct his own defense

. W e will reverse the judgment of conviction and
remand the case to the dis t rict court for further pro ceedings consistent with this opinion.2 BACKGR OUND The evidence presented at trial 1

The State charged Rucker with intentionally or knowingly th reatening Desir ee Gonzalez with imminent bodily injury and using a deadly weapon during the com mission of th e

o f fense

. At trial, the jury heard evidence that on March 10, 2019, Gonzalez was working at a Jiffy Lube in Austin when she heard yelling and screaming coming from be hind the store. When
she went outside to c heck on the commotion, she saw Rucker , a tran sie n t m an who m she had

seen in and ar ound the Jiffy Lube on pr evious occasions , yelling at four other transient
individuals in a grassy area outside a nearby 7

- 11 . Rucker was accusing them of stealing some of his belongings

. G on zalez testified that a t on e p o int durin g th e alterc ation , Rucke r pulled out a pocket knife and pointed it at one of the men , causing the man to step back with his hands up

.

Gonzalez then went back inside the shop and called 911

. Dispatc h asked
Go nzalez for a description of Ruck e r ’ s cloth ing , and she walked back outside to see what Rucker was wearing

. Once outside , she told Rucker to “ leave ev erybody alone ” and asked the other people to “ walk awa y. ” According to Gonzalez, t his made Rucker “ m ore r iled up

. ” She recounted, “ So he j ust got more angry and was yelli ng more and cussing at us and then that ’ s when it escalated to where he started to come toward me with the knife. ”

When asked t o describe how Rucker was holding the knife, Gonzalez tes tifi e d,

“ Hol ding the knife towards me l ike if he was going to stab me w ith it, b ut as he was walking
towards me. ” She added that Rucker was holding the knife in front of him and “ was cussing at

me a nd telling me that I needed to fucking leave him alone an d le a ve his house alone and why

1 We set out the evidence relevant to Rucker ’ s sufficiency challenge, which we must address to determ ine if Rucker is entitl ed to a rendition of acquittal. See Burks v. United St ates , 437 U.S. 1, 15

– 18 (1978)

.3

can ’ t w e just leave him alone. ” When a sked if Rucker said anything regarding what “ he was going to do to [Gonzalez] with the knife , ” Gonzalez testified , “ He said he w as going t o cut me and that we just needed to leave him a lone

. ” On c ross
- examination, Gonzale z added th at Rucker
had told her that he would cut her “ if ” she came onto his property , which Rucker claimed was
the grass y area outside the Jiffy Lube

. Gonzales estimated that Rucker was approxima tely thirty feet away from her at the time he threatened h e r
. Gonzalez ex plained that she was scared for her
life and for the life of a 16

- year
- old gir l , the sister of an auto technician, who was also at the shop that day

. According to Gonzalez , the girl “ was just going cra zy, yelling an d screaming, and s he

sta r t ed to dart her way towards [R ucker]

. And then I just yanked her back and pulled her back
into t he shop

. ”
Gonzalez testified that she felt thr eatened by Rucker . When asked why she felt
thr e atened , Gonzalez explained , “ I ’ m not sur e if it was becaus e ther e was a weapon i n hand that made it more threatening towards me and him coming towards me is what

— just made it seem
more realistic. It wasn ’ t a toy. I t wasn ’ t a game. ” She added, “ He said h e was going to cut me
beca use we keep bo thering him and me ssing w i th his home. We can ’ t just leave him alone and
leave him be. ” Gonzalez also testifi ed that the threat felt imminent because Ruc ker “ was coming

towar ds me with a knife still talking and sc r eaming and cussing at me a s if I hurt or did something to him , ” a n d he was actin g “ like a little hysterically crazy

. ”

When the police arrived, they arrested Rucker and found a pocket knife in his
po ssession

. The knife was admitted into evidence

. One of t h e arresting office rs descr ibed the
knife as “ a locking bif

old kn i f e ” with a “ sin gle fixed non

- serrated blade , ” a hand guard , and a belt clip

. The officer testified that a kni f e is capable of causing serious bodily injury or death
and that th e knife found on Rucker was capable of both cutting an d stabbing

.4

Procedural h is tory

At Ruc ker ’ s arraignment, Ruc ker informed the district court that he and his appointed counsel had “ irreconcilable differences

. ” Rucker claimed that counsel had “ filed motions without telling [ him ] what they are or anything ” and that co unsel had be e n “ dismissed in the past ” from representing Rucker in other case s
. The district court responded, “ Let me just say this, I ’ ll cut to the chase and make it real easy for you, you are entitled to the right to be represented by counsel if you can ’ t afford it

. ” Rucker replied, “ If I ’ m going to have an attorney, I would rather have a different attorney, an attorney of my choice. ” The district court asked Rucker if he could afford an attorney , and Rucker indicated that he could not.

The district court asked c o u nsel if he had irreconcil able differences with Rucker

. Counsel told the court that he did not: “ In all hone sty, I don ’ t have a pro blem with Mr. Ruc ker,
and I don ’ t think that another lawyer being here is going to make any difference for Mr. Rucker.
Mr. Ruc ker has told me that he wants to represent himself. ” Rucker re sponded , “ I would be happy to go pro se
. I would rather go pro se than

— . ” T he district court then inter jected and
informed Rucker that “ if [it] thought that bringing in another attorney w o uld somehow make the process of [ Rucker ] going to trial smoother, then [it] would do so

. ” However , the district court was not inclined to appoint another attorney to represent Rucker “ because the last time we were here off the record , ” Rucker had “ made s o me indication back and forth ” that he wanted to represent himself.

Rucker then asked the district court to recuse itself from the case , which was a request that Rucker had apparently made during the earlier off

- the

- record hearin g . After an
extend ed discu s sio n on recusal , during which the district court informed Rucker that it would5

refer his recusal motion to the administrative judge after the arraignment , the district court returned to the subject of representation :

[The court]: So, basically, you wa nt t o re present yourself; is that correct?
[Rucker] : I am myself, Your Honor.
[The court] : Do you want to represent yourself?
[Rucker] : I am pro se, Your Honor.
[The court] : All right. So, let me just go over these things with you, and then I

will have the cas e referred for recusal. Okay? So, we already went over the arraignment. You were advised that you are entitled to a lawyer, and if you cannot afford a lawyer, then I will appoint one for you. Do you understand that? In that regard, I have alre ady a ppo in ted [counsel]

. [Rucker] : I don ’ t understand that, Your Honor.
[The court] : Do you comprehend that?
[Rucker] : I comprehend that I have a right to an attorney.
[The court] : Okay. And, you also have the right to represent yourself. Do you

unde rsta n d t hat?
[Rucker] : It would appear to me that somebody would have to have

dissociative identity disorder or [hav e ] multiple personality disorder for one of them to re prese nt the other. Fo r one person to represent themselve s implies a dissociative qu alit y th at I don ’ t have. I don ’ t have any mental health disorders. I ’ ve been found competent to be in court by Matt F abian, your forensic psychologist t hat was appointed to fi nd me competent t o go pro se6 in court. [ 2 ] I am myself. I am one man. I mysel f am a n atural man. I have rights under the Constitution of the United States of America. I know my rights. I know t he law.
[The court] : I ’ ll take that as you understand that you have the right to represent

yourself.
[Rucker] : I comprehend.
[The cou rt] : Ok ay. I ’ ll take that as you comprehend that you have the right to

represent yourself.
[Rucker] : I am myself, Your Ho nor.
[The court] : I got you.

T he district court procee ded to conduct a F arett a hearing to dete rmine whether Rucker was knowingly and int e lli gently waiving his right to counse l

. See Faretta v. California , 422 U.S. 806 , 835 (1975)

. At one point during its admo nishments to R u cker on the dangers and
disa dvantag es of self

- represe ntati on , the district court asked Rucker, “ Do you understand tha t you have this attorney [who ’ s ] been appointe d to you, and that because you lack the funds or the circumstance right now to hire an attor n ey, tha t you will have an appointed attorney with you

. Do you un derstand t hat? ” Rucker responded, “ Your Honor, I wo u ld like

— if I have a right to an attorney, I s hould have a right to an attorney. ” Rucker added that h e did not know “ whether [he]

can tru s t anothe r attorney that was appoint ed ” and that he “ b eliev e [d] that [he] wo uld be better

2 There is no docu mentation in the record of any such competency f inding

. H owever, short ly after his arrest, Rucker was evaluated under A rtic le 16.22 of the Code of Criminal Proce dur e, wh i ch provides for “ e arly identification of [a] def endant su spected of having mental illness or intellectual disability

. ” See Tex. Code Crim. P ro c. art. 16.22

. T he evaluation , which was made over two mon ths pri or t o Rucker ’ s arraignment and o ver fo ur mont hs prior to trial, concluded that there was “ [ n ] o indication of a mental neurodevelopmental or neurocognitive disorder requiring jail treatment a t this time. ”7

off being pro se rather than being represented by an attorney wh o is going to subvert [his] access to the Court

. ”
After completing its admoni shments , the district c o urt aske d Ruc ker again if he
wanted to re present himsel f

. Rucke r r esponded ,

You r Honor, again, I believe the te rm “ r epresent yourself ” implies a dissociative quality, a mental disorder. I am one person. I am me. Represent myself against what? Who am I cha l le nging in this court in this case? To be myself, an d to fight against thi s thing

— I mean, these are very a bstr a ct concepts, and they need to be brought ou t into open court, and we need to talk about this stuff.
The district court replied, “ We ’ re in open c ou rt, and we ’ re talking about it. What I need to kno w fro m you is, do you want to act as your own lawyer? ” Ru c ker answered, “ I want to be me in

court. I ’ m not a lawyer. I ’ m not an attorney. I am me. ”

After further discussio n , the district court t ol d R ucker , “ So

. . . if you want to

r epresent yourself, then sign this docume nt. It ’ s a waiver. You can rea d it , and I will allow you to do that, and I w ill allow you to represent yourself. ” T he district co ur t explained further ,

“ Basically, it ’ s saying that yo u understand the rights that y ou have to an att orney, but you want

to represent yourself

. Even if you don ’ t want to sign it , that ’ s fine, if you s ay it on the record,
then that ’ s fine. Do you want to represent yourself? ” Rucker answered , “ I would lik e to be me
in court, Your Honor. ” The district court asked Rucker again , “ Do you want to be you by
yours el f o r with [counsel] ? ” Rucker replied, “ I wo uld consider assistance of counsel of someone to give me legal counsel of some of the processes, but I do n ’ t want somebody to be filing

mo tions or moving the Court on my behalf. ” The district court asked Rucker, “ You don ’ t want somebody asking questions for you ? ” Rucker replied, “ Not without me knowing what they are. ”
T he district cour t told Rucker t ha t it would not perm it hybrid represen tatio n and that Rucker8

needed to choose one or the other : “ Either you repres ent yourself or you have a lawyer repr esent you, which one do you w ant? ” Rucker answered, “ I would be myse lf in court. I am pro se in

cou rt

. ”
Af

ter that, t he district court fou nd th at Rucker had been advised about the risks and disadvantages of self

- re presentation and had voluntarily and i ntelligently made the decisio n to represent himself. The district co urt informed Rucker that he coul d wi t hdra w the waiver o f his right to cou nsel at any time , and it kept Rucker ’ s appointed counsel on the case as stan dby
counsel. Rucker and t he district court then returne d to the earlier discussion of recusal.

Following a recess, Rucker i nformed the dist r ict co u rt , “ I don ’ t think I ’ m going to sign the waiver. ” The dist rict court re sponded , “ I entered it on your be half. ” Rucke r replied,

“ I ’ m not waiving my right to an attorney. ” The district court reminded Ruck er of its ruling :

“ What I told you is, I ’ m g rantin g your request to represent yourself, bec ause you asked to

r epres ent yourself, but at any time i n the futu re, if y ou wa nt to have an attorney, you can have a n attorney. ” Standby counsel then interjected, advis ing Rucker against self

- represe nt at i on a nd

as k i ng him if there “ was somebody else that you would use, or a re you on ly representing yourself be cause you only don ’ t wa nt me to represent you? ” Rather than answer the q uestion, Rucker proceeded to argue wi th counsel , and the district court conc lude d t he h e aring

.

After the hearing had concluded , the State filed a m otion for a competency
examination

. 3 The moti on alleg ed th e following:

Immediately on being brought into the courtroom, the defendant, without

3 T he record contains an un signed copy of the mo tio n , file stamped by the district cle rk ’ s of fi ce on May 30, 20 19, the same day as the arraignm ent.9

prompting and in a rambling forced monolo gue, interr u pted the Judge continually and said thin gs that raise the issue of his competency to stand tria l.

As som e few (o f man y) examples, the defendant stated to the court in the middle of his arraignment more than once “ am I being threatened? Are you thr e atenin g me? ” “ I am not understanding an yt hin g , ” “ I do not understand why I am here , ”

“ Does the S tate o f Texas ha ve a bod y? ” “ The State of Texas does no t have a body and therefore cannot be injured. ” “ We are all under the influence of a racketeering oper a tion. ” “ We are going to use the 13th Amendmen t which was meant to free the slaves. ” “ I feel that lin e of quest ioning i s thr eatening to me. ” “ I am an abstract thinker. ”
These ideations and his continual interruption of the Court and his inability to ans w er eve n simple questions posed to the defendant b y the court, raises the issue of his competency.

WHER EFORE, the State r eques ts that the court conduct a n inquiry pursuant to Tex. R. Crim. Proc. 46B.004 and 46B.005 to determine the defendant ’ s competen cy t o stand trial.

T he record does not reflect that any co m p etency hearing was held.

Approximately six weeks later, there was another pretrial hearing before a different judge. At this hearing, Rucker filed a motion to quash the indictment , a motion to
supp r ess , a n d other pretrial motions, which the dist rict court either denied or c arried to trial. One week later, t h e case proceeded t o trial before a third judge

. Rucker conducted jury selection
himself. His presentation to the venire panel includ ed wh at c a n be f a irly characterized as a rambling and pa ran oid monologue unrelated to his case , which includ ed th e followi ng
statements :

Every body thinks I ’ m crazy. I ’ m not crazy. I talk to a shrink. I talk to the appointed Matt Fabian, a forensic psychologi st. He sai d that I ’ m compet ent. I think I a m com petent, and I thin k I ’ m more competent than a lot of the feeble

min de d people that they have that get taken advantage of by the system of10

revenue generation.

. . .

We ’ re all watching NCIS and CSI and all th is s t uff th at brainwashes us a ll with this bogus psychology, and we ’ re all under its influ ence, that there ’ s go od guy s and bad guys and some of us are good guys and there ’ s

— and ther e ’ s bad guys out t here we need to go after; and when really the so

- called g ood g uys ar e the ones making a ll the money off the drugs and that th ey ’ re probably

— your mu tual funds and IRAs, they ’ r e laundering one

- third of drug money in this country, and you do n ’ t even know it.

I t hi nk that everything is connected. I have

— I have what we m ight c all a gestalt view.

. . . I ’ m interested in the gestalt theory of what ’ s going on or gestalt realit y, a c ogent real ity. Not a virtual reality. Not a reality that you c an manifest or cre ate o n your own. I mean, the real reality out there t hat

— tha t peopl e

— that you

— the real ity gets blocked by all of the celebri ty gossip and sports s tatistics and Game of Thron es and your Facebook f eed and your Twitter account, all this stu ff that keeps peop le fr om knowing what ’ s really going on in the world.

T her e is stuff that ’ s really going on in this world, and I ’ m caught up i nto it, and it ’ s broug ht me here, and it ’ s brough t us together, and it ’ s all real I mean, I ’ m not going to preten d it isn ’ t all con necte d, because there is a gestalt.

I don ’ t have a linear vie w of th ings. I want to be able to see everything a ll at once an d kno w what ’ s going on , and that ’ s why I ’ m here, because people who think like that, people who want to know what ’ s going on in the worl d, want othe r people to know all of what ’ s g oing on with the ch ild prostitution and the blackmail and all o f that, that ’ s wha t puts people lik e me here, because I want t o know what ’ s going on and I want people to know what ’ s going on

. And it may seem

— it m ay seem like some tangent i al leap or some so rt of sc hizo p hrenia or something like that, but, no, there ’ s a real world, a nd it ’ s all connected.
My head

— it’s a psychology thing. They put me into this state. I’m

— I’m impetu ous right now. I’ m ver y impetuous, an d I’m very indignant, and it’ s because of the psy chol o gical state they prepared me for, that they put me in so I’ll l ook like a crazy person.

I’ve about lost it . . . So I’m sure I come across as somebody that’s a bit crazy
.
I’m

— I am at war. I don’t want t o be at war with the State o r agents of the Stat e
. . . . T h e s e p e o p l e h a v e

— I’ve got to do this. This is how I got to fight i t. I11

can’t get out and

— what am I suppos ed t o do? Get out and go get a gun? That’s exactly what they’re tryi ng to do is try to create a terrorist. I’m not a terrorist. I’m her e to fight terrorists. I’m here.
Rucker also called lawyer s “ scumba gs ” and “ w easels ” and characterized the judiciary as

“ corrupt, ” which offended se veral prospective ju rors
. Throughout v oir d ire, m embers of the panel indicated th at Rucker ’ s presentation h ad m a de the m highly uncomfortable , and they expressed concern s as to Rucker ’ s ability to represent himself

. One pro s pec tive juror told Rucker, “ I don ’ t think you ’ re goi ng to get a fair t rial. I think this is going to stack again st you,
and it ’ s going to be a farce. ” Another prospective juror remarked, “[T]his is a trave sty.”
An other prospective juror asked the distr ict court directly, “Is there a process by which the Court goes throug h to deem whether or not someone is able to represent themselves?”

Af t er Ruck er concluded his voir dire, stan dby counsel moved for a mistrial , argu ing that R ucker was not compet ent t o represent himself and that R ucker ’ s p resentation h ad

“ irrevocably ta inted ” the jury against him

. Counsel asked the district court to con duct a secon d
Farett a hearing to determine if Rucker was comp etent t o represen t himself. The district court
asked fo r a response from the State. The prose cutor respond ed, “ Your Honor, I do b elieve that the discomfort that the panel was feeling was obviou s. I believe the Court heard all of that
discussion. And we would d efer to th e Court and its opinion on this matter and how to move
forward. ” The district court then a sked Rucker if he belie ved that he was competent to represent himself, and Rucker provi ded a n ambig uous and rambling response
. Finally, the district court
asked standby counsel whether he be lieved that R ucker was “ competent to stand trial or not

. ” Counsel responded:12

In my opinion, Your Honor, this trial is not going to be about whether or not h e commi t ted the charges of aggravated assault by threat

. . . . The qu estion is going to be him ti lting at win dmills and tal king about the conspiracy against him, and that raises serious concerns about his competency to stand trial. And it ’ s also rai sing concern s about his competency to represent himself because the jurors t hemselves, a bunch of laypeo ple, saw wha t the probl em is.

. . .
Mr. Rucke r . .
. I am concerned that you are going to get convicted, either because you ’ re incompeten t to stand tria l

. . . or y o u ’ re incapable of properly representing yourself, in th at, because of things that you ’ ve sa id in the fr ont of the jury and that you ’ re not

— [ t ] hat you ’ re going to be convicted for all of the wrong reasons
.
Rucker interjecte d:

Your Honor, I nev er a s ked to r epresent myself. I always s aid that I am myself. And I believe that it would imply a diss ociative qua lity t o rep resent myself. I would have to be two people, and I would be

— it would imply som e kind of mental illness that I don ’ t have. And so I ’ ve never said

— I never said that I am capable of representing my self. I don ’ t believe someone

— could be capable of rep resen ting themselves

. . . .
As Ru cker continued his monologue , the district court interrupted him and overruled counsel ’ s motion:

Okay

. L e t me

— let me stop you right there, Mr. Ruc ker, because I ’ m not g oing to grant the motion. I ’ m going to allow yo u to f inish the trial. I am going to go ahead and rely on th e previous determination that the defendant is competent to stand trial. [ 4 ]

I b elie v e the c o ncerns being expressed by both si des here have to do wi th the

4 Again, t he record does not establish that any competency determination had been mad e. A lthough Rucker made statements to the panel dur ing voi r di re cla iming that he had been found comp e t ent , no s uch finding appe ars in the record. Rucker ’s appointed counsel on appeal asked the district clerk’s off

ice to provide a supplemental clerk ’ s rec ord c ontaining any competency evaluation that had be en perf orme d on R ucker

. The district clerk ’ s offi ce replied with a letter st ating that the r ecord con tained an Article 16 .22 assessment , see supra n. 1 , “ but does not contain any other documents regarding comp etency evaluations

. ”13

tactics the defendant is usi ng and the wa y he wants to defend himself, and those are tactical decisions. As long as he ’ s competent to stand trial, he can make whatever tactica l dec isio n s he wa n ts, to his benefit or not, in som eone else ’ s opinion.

A t the conclusion of trial, t he jury fo und Rucker guil ty of aggravated assault with a deadly weapon , and the district court placed him on community supervision as noted above. This app eal f

oll o w ed.

DI SC USSION Right to counsel

We first address Rucker ’ s se cond issue, in which he argues that he did not waive his right to coun sel

. Specifically, Rucker contends that his request to proceed pro se was

“ evasive and confusing, falling far short o f t h e co nstitu tional requirement ” that a defendant ’ s waive r of the r ight to counsel be “ unequivocal and clear

. ” Ru cker argues in the a lternative that
even if he w aive d his right to counsel, he later withdrew that waiver

.

We review a trial court ’ s deci sio n t o allow or deny self

- representation for an
abuse of discretion. See Chadwick v. State , 309 S.W.3d 558, 561 (Tex . Cri m. App. 2010) ; Lathem v. State , 514 S.W.3d 796 , 816 (Tex. App.

— Fort Worth 2017, no pet.) ; Rodriguez v.
State , 491 S.W.3d 18 , 2 8 (Tex. Ap p.

— H o uston [ 1 st Dist. ] 2016, pet. ref ’ d ) ; Robinso n v. State , 387 S.W.3d 815 , 820 (Tex. App.

— Eastland 2012, no pet.) ; DeGr oot v. State , 24 S.W.3d 456,
457

– 58 (Tex. App.

— Corpus Christi

- Edinburg 2000, no pet. )

. W e view the evidence in the light
most favorable t o the tria l court ’ s ruling and imply any findi ngs of fact supported by the record and necessary to affirm the tr ial court ’ s ruling when the trial court did not make explicit findings

. See Rodriguez , 491 S.W.3d at 28 ; Robinson , 387 S.W.3d at 820

.14 The S ixth Ame ndment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right .

. . to hav e the Assistance of Counse l for his defense.” U.S. Const.
amend. VI

. “ The right to counsel at trial is regarded as fundamental. ” Williams v. St ate , 2 52
S .W.3d 353 , 355

– 56 (Tex. Crim. App. 2008) (citing Gideon v. W ainwright , 372 U.S. 335, 34 3

– 44 (1963) )

. Representation by c ounsel “ protects a defendant ’ s right to a fair trial , ” “ ensures that the prosecution ’ s case is subjected to meaningful adve rs arial te st ing , ” and “ safeguards the
defendant ’ s rights. ” Id . at 356

. “ An indigent defendant is therefore ent itled to appointed counsel unless the defendant competently, intelligently, and voluntarily waives the right to counsel. ” Id

.

“ ‘ [C] ourts indul ge every rea sonable pre sumption against waiver’ and .

. . ‘do not presume acquiescence in the loss of fundamenta l rights

. ’ ” Id

. (quoting Johnson v. Zerbst , 304 U.S. 458,
464 (1938) )

. “ To assess whether a waiver is effective, courts c onsider th e totality of the
circumstances. ” Id

.

T he Sixth Amendment als o encompasses the right to self

- representation. See
Fare tta , 422 U.S. at 818 ; Williams , 252 S.W. 3 d at 356 . However, although “ a defendant has a fundamental right to represent him self, repr esentation by counsel is the standard, not the exceptio n, and ther e is a strong presumption against the waiver of the right to counsel. ” Lathem , 514 S.W.3d at 802

. “ The Sixth Amendment embodies two competing rights because exe rcising the right to self

- re presenta tio n necessarily means waiving the right to counsel. ” Id

. “ Thus, while
a criminal defendant ’ s right to counsel st ays in effect until wa ived, a defendant ’ s right to self

representation is not triggered until it is asserted. ” Id

.

Amo ng other r equirements , the defendant ’ s assertion of his right t o self

rep re sentation must be “ clear and unequivocal. ” Faretta , 422 U .S. at 835 ; Williams , 252 S.W.3d
at 356 ; Lathe m , 514 S.W.3d at 802

– 03

. “ Further, the request must be unconditiona l and mus t15

not be a calcula ted attempt to disrupt, subvert, obstruct, or delay the o rderly procedure of the
courts or to interfere with the fa ir administration of justice. ” Lathem , 514 S.W.3d at 802

– 03 (citing Funderburg v. State , 717 S.W.2d 637, 641

– 42 (Tex. Crim . App. 198 6) ; Blanken ship v.
State , 673 S.W.2d 578, 585 (Tex. Crim. App. 19 84) ; Thomas v. State , 550 S.W. 2d 64, 68 (Tex. Crim. App. 1 977) )

. On ce the defendant clearly, unequivocally, and unconditionally asserts his right to self

- representation, the trial court must inform the defendant about the “dangers and disadvantages of sel f

- representation, so that the record will establish that ‘ he knows what he is doing and his choice is made with eyes open.’ ” Williams , 252 S.W.3d at 356 (quoting Faretta , 422 U.S. at 835 ). Thus, to be effective, a defendant ’ s waiver of his right to couns el requires both
a clear , unequivocal , and unconditional a ssertion of his right to self

- representation , followed by
the trial court ’ s admon ishments as to the dangers and disadvantag es of self

- r epresenta tion. See
Faretta , 422 U.S. at 835

– 36 ; Williams , 252 S.W.3d at 356 ; Lathem , 514 S.W.3d at 802

– 03 ; see also Peas e v. State , No. 03

– 14

– 00512

– CR , 2016 WL 2732132 , at *3 (Tex. App.

— Austin May 5, 2016, no pet.) (mem. op., not designat ed fo r publicat ion) ( rever sing trial court ’ s decision to allow defendant to repr esent himself when neither requirement was satisfied )

.

Here, Rucker does not argue that the district court failed to inform him of the dangers and disadva ntages of self

- repr e sentation

. Instead, he argues that any assertion of the right to self

- representat ion was not clear, u nequivocal, and unconditional

. On this record , we
agree. E ven w hen viewing the evidence in the light most favorable to the district court ’ s ruling,

we c annot conc lude that R ucker clearly , unequivocally , and unconditionally asser t ed his right to
self

- representation

. At one point durin g his arraignment, Rucker claimed that he “would be happy to go pro se,” and at another point, he mused that he would be “ better off being pr o se rathe r than bein g rep resented by an attorney who is going to subvert [his] access to the Court

. ”16

However , at other points during the proceedin g , Ruc ker made statements suggest ing that his request to represent himself was motivated b y nothing m ore than his d is sa t isfac tion with appointed counsel

. Thus , Rucker ’ s request was conditio ned upon the district court ’ s ref us al to appoint him different counsel

. When Rucker first informed the district court that he and his appointed counsel had “irreconcilable differences,” he told the district court that he “ would
rather have a different attorney, an a ttorney of [ his] choic e
. ” Later, w h en the district court
informed Rucker that he had a right to appointed counse l, Rucker responded, “Your Honor , I
would like

— if I have a right to an attorney, I should have a right to an attorney

. ” W hen the
district cour t asked Ruck er directl y and repeated ly if he wanted to represent himself, Rucker provided confusing and evasive a nswers, such a s “ I would be myse lf in court ” and “I want to be me in court. I’m not a lawyer. I’m not an attorney. I am me.” Rucker also claimed that

r epresentin g himself woul d imply “ a dissociative quality ” or “ mental diso rder ” that he did not
possess and questioned whether it would be possible for him to repr esent himself

. Further more , when the district court presented Rucker with a written waiver of his right to counsel and asked him to sign it , the court aga in inquired as to whether Rucker wanted t o represent himself

. Rucker res ponded , “I would consider assi stance of counsel of someone to give me legal counsel of some of the processes, but I don’t w ant somebo dy to be filin g motions or moving the Court on my behalf. ” Finally, near the end of the arraignment , Rucker informed the d istrict court, “I don’t think I’m going to sign the waiver” of his right to counsel. When the district court responded
tha t it ha d e ntered the wai ver on Rucker’s behalf, Rucker replied, “I’m not waiving my right to an attorney.” Considering the totality of the circumstances and indulging every reasonable presumption against waiver as we must , Rucker ’ s statements do not amoun t to a cl e ar , unequi vocal , and unconditional assertion of hi s right to self

- representation , and the district court17

ab used its discret ion to conclud e otherwise

. See , e.g. , Renfro v. State , 586 S.W.2d 496 , 500 (Tex. Crim. App. 1977) (concluding that alth ough defendan t re quest ed to represent him self at one point , totality of record demonstrated that request “ was based solely on th e court ’ s refusal to appoint different counsel and not because he wished to forego his right of representation ” );
Robles v. State , 577 S.W.2d 699 , 704 (Tex. Crim. App. 1 979) ( “ A request for other counsel i s not a waiver of the right to counsel. ” ) ; Robinson , 387 S.W.3d at 821 ( “ Appellant ’ s dissatisfaction with appointed counsel and his req uest for hybrid representation did not establish a clear and unequivocal assertion of his right to self

- representation. ” ) ; DeGroot , 24 S.W.3d at 458

– 55 ( concluding that defendant ’ s statement to district court, “ I think I ’ ll proceed without an attorney”

was n ot clear and unequivocal assertion of right to self

- rep rese ntation because it c ould not “ be
taken alone or out of context ” of defendant ’ s dissatisfaction with his attorney ) ; see also Pease , 2016 WL 2732132 , at *2

– 3 (concluding that defendant did not clear ly and unequivocally assert right to self

- representation whe n request to proceed pro se was conditioned on presence of standby counsel).

Because Rucker did not clearly , unequivocal l y , and unconditionally assert his

r ight to self

- representation , his right to counsel remain ed intact. See Williams , 252 S.W.3d a t
35 8

. Conse quently , Rucker was entitled to b e represented by counsel during trial but was not.
See id

. “ When the right to trial counsel has been violate d, prejudice is presumed because the
trial has been rendered i nherently unfair and unreliable. ” Id

. at 357

. Be cause “the re is simply no
way to d iscern what the outcome would have been had [ Rucker ] been represented by counsel , ”
the district court ’ s decision to permit Rucker to proceed without representation constitu tes reversible error, not subject to a harm analysis. See i d

. at 358 ; Pease , 2016 W L 2732132, at *3

.18 We sustain Rucker ’ s second issue

. Accord ingly, we need not consider his third, fourth, and fifth issues related to competency. 5 See Tex. R. App. P. 47 .1 ; Pease , 2016 WL
2732132 , at *4

.
S u ff i cienc y Even though we have determined that Rucker was denied his right to counsel and
th us is entitled to a new trial on that ground , we must also address his first issue, in w hich
Rucker asserts that the evidence is insufficient to su pport his convic tion

. Thi s is because a sufficiency challenge, if sus tai ned, would result in an acquittal and bar retrial as a matter of law.
See Burks v. United St ates , 437 U.S. 1, 15

– 18 (1978) ; Greene v. Massey , 437 U.S. 1 9 , 24

– 25 (1978)

. Thus, “ a challenge to the su fficiency of the eviden ce should be considered b efore disposing of a case even though reversal may be based on another ground. ” Graham v. State , 643 S.W.2d 920 , 924 (Tex. Crim. App. 1981)

.

“ Evidence is sufficient to su pport a criminal conviction if a rati onal jury could
find ea ch essential element of t he off ense beyond a re asonable doubt. ” Stahmann v. State , 602
S.W.3d 573 , 577 (Tex. Crim. App. 2020) (citing Jac kson v . Vir ginia , 443 U.S. 30 7, 319 (1979) )

.

“ We vi ew the evidence in the light most favorable to the ve rdict and con si der all of the admitte d
evide nce, regardless of whether it was properly admitted. ” Id

. “ The jury is the sole judge of credibility and weight to b e attached to the te stimony of the witnes ses. ” Id

. “ Juries can draw

reas onable inf

erences fr om the eviden ce so long as each infer e nce is supported by th e evidence produced at trial. ” Id

. “When the record supports conflicting inferences, we p re sume that the

5 Although we need not address competen cy at this time, we n ote that Rucke r ’ s sta ndby counsel and t he State both raised the issue of Rucker ’ s competence to stand trial

. Ne verthe less, the record does not reflect that any deter minat ion of competency was made , even though the district court state d it “ rel [ied] on the previous dete rmination that the defend ant is competent to stand trial

. ”19

jury resolved the c onflicts in favor of th e verdict and defer to that determina tion.” Me rritt v.
Stat e , 368 S.W.3d 516, 5 25

- 2 6 (Tex. Crim. App. 2012 )

.

A s cha rged in the indictment, a person commits the offense o f assault if he
intentional ly or knowi ngly threatens another with imminent bodily inj ury
. Tex. Penal Code § 22.01(a)(2)

. The offen se is aggrava ted if a person uses or e xhibit s a deadly weapo n during the
commission of the assault. Id

. § 22.0 2 (a)(2)

. Rucker claims that there was no evi dence that he
threatened Gonzalez with “imminent” bo dily injury and no evidence that he us ed or exh ibited a
deadl y weapon during the comm ission of the assault

.

We first address w hether there is su fficient evidence that Rucker threatened
Gonzalez wi th “ im mi nen t ” bodily injury. Although the Texas Penal Cod e does not define

“ imminent, ” the Cour t of Crim inal Appeals a nd this Court have defin ed th e term to mean “r eady to take place, ne ar at hand, impen ding, hanging threateningly over one ’ s head, menacin gly ne ar.”
Garcia v. State , 367 S.W.3d 683 , 689 (Tex. Cr im. App. 2012) ; Devine v. State , 786 S .W.2d 268 , 270 (Tex. Cr im. App. 1989) ; Millslag le v. State , 81 S.W.3d 895, 898 (Tex. App.

— Austin 2002, pet. ref ’ d)

. Thus, “ imminent ” bodily injury requires a t hreat of present rath er than future harm

. Devine , 786 S.W .2d at 270

.

Accor ding to Rucker, the evidence showed that h e made , at most, a “ futu re thr eat ”
toward Gonz alez , i.e., that he would c ut her if she did not leave him alone or if she came onto
what Rucker b elieved t o be his property. Rucker contends that b ecause he was standing thirty
feet awa y from Go nzalez when he made his threat , and be cause Gonzalez went ba ck inside the Jiffy Lube immediately after Rucker threatened her, she was ne ver in any danger o f i mminent
b odily injury.20 T he jury could have r easonably inferred otherwise . Gonzale z testifi ed that when
R ucker threatened her, he was i n an agi tated , a ngry state , cussing and screaming at her and

“ coming toward her ” w hile he was holding the knife out in f r ont of him

. When asked t o describe
how Ruck er was holding the knife, Gonzalez tes tified, “ Holding the kn ife towards me like if h e

was going to stab me with it, but as he was walking towards me.” Moreover , one of the arresting
officers testified that a p e rson armed with a knife c an be an imminent t hreat to a person even when standing f

orty to f ifty feet away , and another officer te stifie d that by the ti me a suspect armed with a knife is twenty feet away from a person , it might be too late for the person t o defend against the attack , dependin g on the suspect ’ s demeanor, speed , and intent

. The ju ry could have reasonably inferred from this evidence that ev en though Rucker was thirty feet away
from Gonza lez , the threat of bodily injury to Gonzalez was imminen t because he was in an agitated state , coming toward h er with a knife, and threaten i ng to cut he r
. The f act that Gonzalez
was ab l e to retreat to safet y inside the shop after the threat was made does not make the threat
any less imminent when it was made

.

F urthermo re , the jury could have found tha t the words Rucker used to threaten
Gon zalez we re not conditi onal . Although at one p o int d uring cross

- examination Gonzal ez agreed with Rucker that he had threat ened to cut her “ if ” she came ont o his property , at other points she described it in less condi t ional terms , testi fying that Rucker “ s aid he w as going to cu t me because we keep bot h ering him and messing with his home , ” and that he told her, “ I am going to fucking cut you. ” Th e jury as fact finder was entitl ed to resolve these inconsi stencies i n favo r of the State ’ s th eory that Rucker was threate ning imm in ent harm to Gonzalez , particu l arly
i n li ght of Gonzalez ’ s testimon y that Rucker was not calmly standing in place but was yelling
and scre aming and walking t oward her with a knife.21 Moreover , even as sumi ng that Rucker ’ s threat was conditi o ned upon Gonzalez

com ing onto what Rucker beli e ved to be his property , a threat can be both conditional and
imminent

. For example, w hen a n assailant approaches the victim a nd t hreatens t he vi ctim with
immediate har m if the victim does not comply with the assailant ’ s orders, t he threat of bodily injur y is im minent

. See Devine , 786 S.W.2d at 270 (citing Green v. State , 567 S.W.2d 211 , 212 (Tex. Crim. App. 1978) )

. In this case , t he jury could have reasonably inferred that th e threat was imminent because at the time Rucker threa te ned to cut Gonz alez , sh e was s tanding near the area
that Rucker believed to be his proper ty ; Rucker was in an angry, agitated state and approac hing
Gonzalez armed with a knife ; and , based on th e off icers ’ testimony relating to their experienc e of dealing with suspects from a dis t ance , Rucker was close enough to Gonzalez to pose a threat of
immediate harm

. Viewing these circumstances in their totality and in the light most favorable to
the verdi ct , w e conclude that th e evidence is su ff i cient t o prove that the threat o f bodily inj u ry to
Gonzalez was immine nt.

We next address whether the evidence is sufficient to suppo rt the jury ’ s finding that a deadly weapon was used during the commissi on of the o ffe nse. As charged i n the
indictment , a deadly weapon is d efined as “anything that i n the manner of its use o r intended use is capable of causing death or serious bodily injury.” Tex. Penal Code § 1.07(a)(17)(B)

. “Bodily injury” means “physi cal pain, i llness, or impairment of physical con dition.” I d . § 1.07(a )(8)

. “Seriou s bodily in

jur y” is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the f un ction of any bodily member or organ .” Id . § 1. 07(a)(46)

. “ The statutory language is excee dingly
broad in tha t a ‘ deadly weapon ’ may be ‘ anything, ’ and there is no limitation as to what type of
th ing may be considered a deadly weapo n. ” Prichar d v. Stat e , 533 S.W.3d 315 , 3 20 (Tex. Crim.22

Ap p. 2017)

. A dditionall y, the statute ’ s “ plain l ang uage d oes not require tha t the act or actually intend death or serious bodily injury; an object is a deadly weapon if the actor inten ds a use of the object in which it wo uld be capable of causing death or se rious bodily injury

. ” McCain v.
State , 22 S.W. 3d 497 , 5 03 (Tex. Crim. App. 2000)

.

“[E]xpert testimony is not required to prove that a weapon is deadly,” and “no one needs to testify to the conclusion that the weapon wa s capab le of producing serious bodily
i njury.” W

illiams v. State , 575 S.W.2d 30 , 32 (T ex. Cr im. App. 1979)

. “T he jury is free to
consider all of th e facts of the case, including any actual wounds inflicted or words spoken by the appellant, in deciding if the weapon is deadly

. ” Id

. Moreo ve r , “ [ i ] n det ermining w hether a weapon is deadly in its m anner of use or inte nded manner of use, the defendant need not have actually inflicted harm on the victim. ” Joh nso n v. State , 509 S.W.3d 320, 323 (Tex. Crim. App. 2017) (ci ting Brown v. State , 716 S. W.2d 939 , 94 6 (Tex. Cr im. App. 1986) )

. “ Instea d, we

con s ider words and othe r threatening actions by the defendant, including the defendant ’ s proximity to the victim; the weapon ’ s ability to inflict serious bodily injur y or death, including the size, shape , and sharpn ess of the weapon; and the ma nner i n w hich t h e defendant used th e
weapon. ” Id

. “ These, however, are just factors used to guide a court ’ s sufficiency analysis; they
are not inexorable commands. ” Id

.

R ucker argues that the knife in this case w as not capab le of caus ing death or bodily injur y b ecause Rucker was thirty f eet away from Gonzalez at the time he threatened her ; Gonzalez did not suffer any in jury ; Rucker threatened only to “ cut ” Gonzalez , whic h may o r may
not cause serious bodily injury ; the knife, as a “ bas ic folding pocketknife, ” had only a three

- inc h
blade and was designed to be a tool rather t han a weapon ; and Rucker did not “ make any slashing, stabbing, or swipin g motions with the knife ” so as to suggest that he intended to cause23

Go nzalez serio us bodily injury. R ucker a lso inco rpo rates his earlier argu ments regarding imminence, claiming that he only threatened future harm to Gonzalez and that he did not follow her into the Jiffy Lube , indicating that he did not intend to cause her s eriously bod ily injury

.

However, Rucker ’ s argum ent s view the evidence in the light most favorable to his
defense. W hen view ing the evidence in the light most favorable to the verdict , as we must, the
evidence shows tha t Rucker was coming toward Gonzalez w hile holding a knife t hat an officer
testified had a “ si ngle fixed non

- serrated blade ” that was capable of both cutting and stabbing.
T he knife was admitted into evidence, enabling the jury to assess for itself the phys ical
characteristics of the knife

. S ee Robertson v. State , 163 S.W.3d 730 , 733 (Tex . C rim. A pp. 2005 ) ( concluding that reviewing courts should consider “ not just the testimony concerning the knife, but the knife itself, in determining whether the evidence adduced at trial was
constitutionall y sufficient to suppor t ” deadly weapon finding)

. Moreov er, offi cers provided testimony , summarized above, on the imminence of the threat , and the jury could have reasonably infer red from th is evidence that Rucker ’ s kni fe could pose a thr eat of serious bod ily injury t o Gonzalez even from t hirty feet aw ay , depen ding on Rucker ’ s demeanor , speed, and
intent while holding the knife

. Here, th e jury heard evidence that Rucker was angry, yelling , and cussing a s he approached G onza lez and that he threatened to cut her. Gonza lez testif ied that
Rucker was holdi ng the kn ife “ tow ards [her] like if he was going to stab [her] with it

. ” Gonzalez
further testified that she was “scared for [her] life” and for the life of the 16

- year
- o l d girl who
was with her

. Based on th e totality o f the circ umstances , including the phy s ical characte ristics of
the knife ; Rucker ’ s words , actions , and demeanor during the encounter ; the manner in whi ch
Rucker held the knife as he approached Gonzalez ; and Gonzalez ’ s reaction to Rucker ’ s threa t , the jury could have reasonably infer red that Ru cker u se d the knife in a manner that was capable24

of causing Gonzalez serious bodi ly injury or death

. See McCain , 22 S.W.3d a t 50 3 (conc luding
that “ the mer e carr ying of ” knife could be sufficient under cer tain circums tanc es to support deadly weapon fin din g) ; Ma gana v. State , 230 S.W.3d 411 , 414 (Tex. App.

— San Antonio 2007, pet . ref ’ d) (concluding that pocketknife was capable of causing death o r serious bodily injury ) ;
Ro gers v. State , 877 S.W.2d 498 , 500 (T ex. App.

— For t Worth 19 94 , pet. ref ’ d) ( evidence th at
sup port ed deadly weapon finding included victims ’ fearful reactions to defendant ’ s use of pocketknife ) ; see also Lozoy a v. Stat e , No. 0 8

- 15

- 00278

- CR , 2017 WL 4277307 , at * 4 (Tex. App.

— El Paso Sept. 27, 2 017, no pet. ) ( not des ignated for publication ) ( co ncludi ng that “ [ e ] ven a small pocketkni fe or folding knife can be considered a deadly weapon ” under certain
circumstances , including “ when the defendant makes threats wh ile using the knife ” )

. On this

recor d, we conclu de that th e evidence is sufficient to prove that Rucker used a deadly weapon during the commission of the offense.

Because the evidence is sufficient to suppo rt Rucker ’ s conviction , he is not
entitled to rendition of a n acquittal. We overrul e Rucker ’ s first issue

.

CONCLUSION Having c oncluded that the record does not support t he district court ’ s fi nding that Rucker clearly and unequivocally asserted his righ t to self

- representation so as to waive his right

to counse l, we reverse the distri ct court ’ s judgment of conviction and remand fo r a new trial.

_______________ __________________________ _ Gise la D. Triana , Justic e25

Be fore Justi ces Goodwin, Triana, and Kelly
Reve rse d and Remanded
Filed: February 11, 2021
Do Not Publish