### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00566- CR NO. 03-12-00567- CR

Brian Jeff

ries, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT

NOS . D-1 -DC- 12- 2021 46 & D-1 -DC- 12- 2021 47 HO NORAB LE B OB P ERKI NS, JUDGE P RESIDING

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

A jury convicted Br ian J eff ries of theft of proper

ty with a value under $1500, third offe nse, and evading arr est with a prior conviction for evading arr est. See Tex. Penal Code §§ 31.03(e) (4)( D) (establishing offe nse of theft of proper ty with value under $1500 as state jail felony when defe ndant has t wo o r m ore prior theft convictions), 38.04(b)( 1)(A) (establishing offe nse of evading arr est

as state jail felony when defe ndant has prior conviction for evading arr est). The jury found t h e enhanc ement para g raphs alleg ing prior convictions to be true and assessed punishment a t f our and

a hal f y ear s in the I nstitut ional Division of the Texas Depa rtment of Criminal J ustice for eac h offe nse. See id. § 12.425(a) (enha ncing punishmen t t o t h i rd -degr ee felony when defe ndant tried for state jail felony has two prior convictions for state jail felonies)

. On appea l, J eff ries asser ts that the t rial court abused its discretion by deny ing his req u es t fo r self-repr esenta tion. We will aff irm the convictions.BACK GR OUND
J eff ries reque sted appointment of counsel when he first appea red in court. J eff

ries’s orig inal court- ap p o i n t ed attorney withdrew from repr esenting him at a pretria l hear ing three day s befor e J eff

ries’s first trial setting. At the hearing , J eff ries accuse d the attorne y of working for t he
S t at e and not discussing motions with him. The attorney testified that J eff ries was unwilling to work with her

on the ca se; she soug ht to withdraw base d on his lack of c oopera tion with her. The trial c ourt appointed a new a ttorney

for Jeffrie s, and the jury trial was re set for

a date three wee ks later. At a pretria l hear ing four day s befor e his second trial setting, J eff ries told the trial court that he wanted a differen t at t o rn ey b eca use his second attorney had curse d at him. The trial court denied J eff ries’s reque st. J eff

ries sug g ested that instead he could repr esent himself. The trial court stated that even if he tried to repr esent himself, the trial court wo u l d s t i l l have his attorney sit with J eff

ries during trial

. T h e trial court also acknow ledg ed that it would need to advise J eff

ries about the disadvantag es of self-r epre sentation and make an assessment of J eff ries’s ability to repr esent himself. The trial court defe rre d the proce ss of advising J eff ries about the risks of self-r epre sentation and assessing his ability to know ingly and intelligently waive repr esenta tion until the day

of trial.
On the morning o f t ri al , J eff ries stated that he did not want to repr esent himself.
He wanted another lawy er beca use his lawy er had “cur sed [hi m] out” and he did not fee l comforta ble with his lawy er. When a sked by the trial cour

t to comment, J eff

ries’s law y er state d:

M r . Je f f r ie s is a li a r . I ’ m h is s e c o n d la

w y e r . H e g o t r id o f [h is p r io r a p p o in te d c o u n s e l] beca use he didn’t like [her]. And he’s try ing to manipulate the sy stem. He’ s try ing to—he ref

uses to put on street clothes for trial. And this is another g ambit to g et out of trial.

2. . . .

There has [si c] be en no problems except that he’ s ref used to tell me what his name is or participa te in any

way , other than to thre aten me. B ut we’r e re ady

.

The trial court then explained to J eff ries that mere disag ree ments betwee n him a nd his la wy er or a
persona lity conflict alone does not mean that the lawy er cannot repr esent him. The trial court denied
Je f f r ie s ’ s mo ti o n f

o r a n e w la

w y e r . Je f f r ie s d id n o t r e it e r a

te h is r e q u e s t to r e p r e s e n

t h im s e lf

. A le n g th y exchang e followe d in which the trial court urge d J eff ries to put on street c lothes for trial a nd tried
to asce rtain whether J eff

ries had rec eived street clothes and ref used to put them on, whether he had

s ig n e d a r e f u s a l to c h a

n g e , a n d w h e th e r h e s ti ll w is h e d to s ta y in h is ja il u

n if o r m. A f te r Je f f r ie s r e f u s e d to put on street clothes, the tria l court proc eede d with J eff ries’s a rra ignme nt and with voir dire.
Af t er t h e State’s voir dire, but befor e the defe nse’s, J eff ries complained to t h e trial court that his lawy er had not fi l ed an y m o t i ons and did not have any form of defe nse,

so J eff ries thought he would be better off repr esenting himself. The trial court told him that it was
too late for him to repr esent himself beca use trial had started. J eff

ries further asser

ted his desire to
repr esent himself:

THE DEF ENDAN T: I asked be fore I came in here . I asked f or somebody

— THE COURT: Well, and y ou said b ef o re t ri al t h at y ou wanted—tha t y ou did not want to repr esent y ourself, that y ou wante d t o have somebody else other than Mr. Esperson do that. I denied that. You didn’t ask for another —for—to repr esent y ourself then, so it’s too late to do that now.
THE DEF ENDAN T: So that’s all I said—
THE COURT: We’ll stand in rece ss for a f ew minutes. Thank y

ou.
3THE DEF ENDAN T: So I want to re prese nt my self.

THE COURT: Well, it’s too late to do that. You should’ve done that befor e

trial.
THE DEF ENDAN T: Real l y wh at y ’a l l try ing to do, man, is kang aroo- court me,

man. THE COURT: No, that’s not corr ect. We stand in rec ess for a fewminutes.

After the rec ess, J eff

ries’s counsel conducte d voir dire examination. A jury was selec ted and sworn, and the c ase pr ocee ded to trial.

ANALYSIS

A defe ndant in a criminal proce eding has a constitutional rig ht to repr esent himself
if h e ma k e s th e d e c is io n to d o s o in te ll ig e n tl y , k

n o w in g ly , a

n d v o lu n ta r il y . E

. g
. , F a r e tt a v
. Ca li fo r n ia , 422 U.S. 806, 835 (1975); Blankenship v. State , 673 S.W .2d 578, 582 (Tex. Crim. App. 1984). The righ t to self-r epre sentation does not attach until it is clea rly and unequivoca lly asser ted by the defe ndant. Brown v. W

ainwright , 665 F.2d 607, 610 (5th Cir. 1982) (discussing interplay betwee n defe ndant’s rig hts to counsel and to self-r epre sentation); Funderberg v. State , 717 S.W .2d 637, 642 (Tex. Crim. App. 1986). Moreove r, a trial court may proper ly deny a reque st for self-r epre sentation
if the rec ord indicat es t h at the reque st was made with the intent to disrupt or delay trial. See Chapman v. United States , 553 F.2d 886, 887 (5th Cir. 1977) (holding self-r epre sentation
reque st timely if made befor e jury is selec ted, “abse nt an aff irmative showing that it was a tactic to

secur e dela

y ”). Although J eff

ries asser ts the trial court abused its disc re t ion by deny ing his selfrepr es entation reque st on the g round that it was untimely , the timeliness of the reque st is not the

4only fac tor that we consider when analy zing a defe ndant’s reque st to proce ed pro se. We must also 1
consider whether J eff

ries’s reque st was (1) clea r an d unequivoca l or (2) made with the intent to disrupt or delay trial. See Funderberg , 717 S.W .2d at 642; Chapman , 553 F.2d at 887. Since this 2
is a mix ed question of law and fac t that turns on an evalua tion o f credibilit y and demea nor, we revie w the trial court’s ruling for an abuse of discretion and aff ord almost total defe renc e to the trial
court’s ruling

. See Chadwick v. State , 309 S.W .3d 558, 561 (Tex. Crim. App. 2010). We view the evidenc e in the light most favor able to the trial court’s ruling , and we will imply any finding s of fac t supported by the record and nece ssary to support the ruli ng when the trial court did not make expli cit finding s. Id.

We first examine whether J eff ries’s reque st was clea

r and unequivoca l. J eff

ries first asked to repr esent him self four day s befor e the trial setting, after the trial court denied his reque st for a third lawy er. The trial court d ef er re d t he require d admonishment about the risks and disadvantag es of self-r epre sentation until the day of trial and i n d i cate d that he would still have
J eff ries’s attorney sit with J eff ries as standby counsel during the trial. On the morning of trial, when the trial court asked J eff

ries if he wanted to repr esent himself, he said he did not and asked ag ain for a thi rd attorney to be appointed. That same day , afte r the State c ompleted its voir dire, but befor e J eff ries’s attorney beg an his voir dire, Jeffr ies made a nother re quest to repr esent himself. B oth of
J eff ries’s reque sts wer e made at the same time that he expressed dissatisfaction with his curr ent

The State conce des that J eff ries’s reque st was timely and acknow ledg es that the trial court 1 err oneously told Jeffrie s that his r equest made befor e the defe nse conducte d voir dire was too late. We must uphold the trial court ’s d ec i s i o n if it was corr ect under any theory of law 2 applicable to the case , even if the trial court g ave an incorre ct rea son for its decision. Jones v. State , 982 S.W .2d 386, 389 (Tex. Crim. App. 1998). 5attorney and only afte r the trial court denied his reque st for a differ ent attorney

. S ee De Gr oot v. State , 24 S.W .3d 456, 458-60 (Tex. App.—Corpus Christi 2000, no pet.) (conc luding trial court did
not abuse its discretion by deny ing self-r epre sentation reque st made on day of trial when defe ndant had twice asked trial court for new counsel, reque st was made only afte r reque st for new counsel was denied, and statement was not consistent with oth er s t atements about desire to collabora te with defe nse attorney

); see also Renfro v. State , 586 S.W .2d 496, 500 (Tex. Crim. App. 1979) (re versing and rema nding case beca

use defe ndant’s decision to repr esent himself was based solely on court’s ref usal to appoint differ ent counsel and not on desire to waive rig ht to counsel). Ba sed on J eff ries’s vacilla t i o n an d his repe ated reque sts for a differ ent lawy er, the trial court could have rea sonably conclude d that his self-r epre sentation reque st was equ ivocal and based only on the trial court’s denial of his re quest for ne w counse l.

But e ven if we considere d J eff ries’s reque st to be clea

r and unequivoc al, we w ould still be compelled to uphold the trial court’s ruling if the trial court could have rea sonably conclude d that J effri es m ad e h i s reque st with the intent to disrupt or delay trial or that g ranting his reque st would actua lly disrupt trial. See C h a p ma n , 553 F.2d at 895. The rec ord sug g ests that J eff ries intended to delay

or disrupt his trial. J eff

ries aske d to have a third attorney appointed to repre sent him and made h i s fi rst reque st to repr esent himself only four day s befor e his second trial setting.
See Blankenship , 673 S.W .2d at 585 (noting that defe ndant had not reque sted differ ent counsel when discuss i n g lack of sug g estion in rec ord that defe ndant’s self-r epre sentation reque st was desig ned
to achie ve delay

); Birdwell v. State , 10 S.W .3d 74, 77 (Tex. App.—Houston [ 1 4th Dist.] 1999, pet. ref ’d) (same)

. He made his second reque st to repr esent himself in the middle of voir dire afte r telling the trial court that morning he did not want to repr esent himself. Both of J eff ries’s court6appointed attorney s had advised the trial court that J eff ries woul d n o t cooperate with them.
Je f f r ie s ’ s s e c o n d a

tt o r n e y a ls o to ld th e tr ia l c o u

r t th a t Je f f r ie s h a d r e f

u s e d to p a r ti c ip a te in d is c u s s io n s , except to threa ten the attorney , and that he even ref used to tell the attorney his rea l name. I n 3 addition, J eff

ries’s second attorney told the trial co u rt t h at J eff ries was try ing to manipulate the
sy stem. The attorney explained that J eff ries’s reque sts for another lawy er and his ref usal to put on civilian clothes for

trial wer e “a

nother g ambit to ge t out of trial.” The trial court’s leng thy discussion wi t h J eff ries about whether he was ref using to put on street clothes prov i d es further evidenc e from which the trial court could have rea sonably conclude d that J eff

ries would have disrupted the trial if allowed to r epre sent himself. J eff ries was evasive when the trial court asked about his ref usal to wea

r street clothes. He first stated that he had

never been broug ht clothes. He would not g ive the court a straig ht answe r about whether he ref used
to take the clothes, instead repe atedly say ing that he had not seen the clothes. He admitted that the jail had offe red civilian clothes to him. He dispute d wi th the deputies whether he had signe d a written ref

usal to chang e clothes, even afte r further discussion took p l ac e off the rec ord. Finally , when a deputy asked J eff

ries if he would chang e into clothes if they wer e offe red to him, “y es or no,”
J eff ries avoided answe ring direc tly , s ay i n g “i t d on’t matter at this point in time.” The trial court asked him ag ain, “Do y ou want it or not? Tell me y es or no.” J eff ries shook his head, and then upon prompting, finally stated “no” for the rec ord. J eff ries’s evasive n ess when asked direc t questions and his arg

uing with the deputies and the trial judge require d an excessive amount of the trial court’s time to address one simple question.

J eff ries had be en indicted with an A KA of Micha el Young

. 3
7Viewin g the evidenc e in the light most favor able to the trial court’s ruling , we

conclude that J eff

ries’s two reque sts for new att o rn ey s made a few day s befor e eac h of his trial settings, his lack of cooper ation with both attorney s, and his arg umentativeness when questioned by the trial court a

bout his refusal to put on stree t clothes suffice to suppor t a n implied f

inding by the trial court that J eff

ries’s reque st to repr esent himself was made wi t h the intent to delay or disrupt trial. Acc ording ly , we conclude that J eff ries’s rig ht to self-r epre sentation did not attach. There fore , 4
the trial court did not abuse its discretion by deny ing J eff ries’s reque st to repr esent himself at trial. We overrule J eff

ries’s sole a

ppellate issue.

Although not part of our analy sis of whether the trial court impliedly found that J eff ries’s 4 reque st was made wi t h the intent to disrupt or delay trial or that his self-r epre sentation would actua lly disrupt trial, we note that J eff ri es was in fac t disruptive during trial. During J eff ries’s testimony , another leng thy exchang e betwee n the trial court and J eff ries occur red afte r the trial court excused the jury so that the court could explain to J eff ries that he could not talk at the same time as other people beca

use the court repor

ter can only rec ord one person speaking at a time. When the trial court asked J eff

ries if he understood this rule, J eff ries said he did not, and upon further explanation from the court, continued avoiding the question. I nstead, he stated that he wanted to speak his mind and tell his side of the story , that he still wanted to fire his attorney , and that he wanted to know why his case was being hear d by the visiti ng judge instead of the sitti ng judge

. He questioned the judge ’s authority and interrupted the judge numerous times while the judge was explaining why J eff ries had to follow the rules of the court. The trial court eventua lly had to send J eff ries out to the holding cell, and when J eff

ries returne d, the trial court informed him that if he further violated the court’s rules, he would hold J eff

ries in contempt. J eff ries was also disruptive during the punishment phase of trial. When test ify ing befor e the jury , he ag ain raised the issue of why the visiti ng judge was presiding instead of the sitti ng judge and require d the court to explain the issue to the jury

. J eff ries also told th e judge that the judge neede d to explain to the jury why J eff ries’s motions had not been hear d or g rante d and that J eff ries had tried to fire his attorney

. He also ref used to answe r the prosec ution’s single cross-e x amination question. He demande d instead that the prosec utor show the indictment to the jury and arg ued with the trial judge when the judge order ed him to answe r t he question. J eff ries’s actua l disruptive behavior at trial illust rate s the rea lity of wha t the trial court impliedly found at the outset of trial—that J eff

ries’s conduct, including his reque st for self-r epre sentation, was made with the intent to disrupt or delay

trial. 8CONCLUSION Having deter

mined that the trial court did n o t abuse its discretion by deny ing
J eff ries’s se lf-re prese ntation reque st, we af firm the trial c ourt’s judg ments.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Jones, J ustices Goodwin and F ield
Affir med Filed: De cembe r 18, 2013 Do Not Publish

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