Opinion filed February 22, 2024

In The

Eleventh Court of Appeals __________

No. 11-22-00134-CR

__________

MIKE GOMEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 29585-A

O P I N I O N

Appellant, Mike Gomez, refused the assistance of court-appointed trial 

counsel. On appeal, he contends that the trial court erred by “allowing” him to 

represent himself.

Following a bench trial, the trial court found Appellant guilty of robbery, a 

second-degree felony offense, and sentenced him to seven years’ confinement in the 

Institutional Division of the Texas Department of Criminal Justice. See TEX. PENAL 
2

CODE ANN. § 29.02 (West 2019). During pretrial hearings, Appellant refused the 

assistance of court-appointed counsel and informed the trial court he preferred to 

appear pro se. In a single issue on appeal, Appellant claims that the trial court erred 

in allowing Appellant to represent himself because he did not knowingly and 

intelligently waive his right to counsel. We modify and affirm.

Factual and Procedural History

Charged by indictment with the crime of robbery, Appellant refused 

assistance from his court-appointed attorney during a pretrial hearing on 

November 5, 2021, and stated that he wanted to represent himself. The trial court 

asked Appellant questions about his age, occupation, formal education, and prior 

experience with self-representation. The trial court then advised Appellant, in a 

series of admonishments, of the disadvantages of self-representation, that Appellant 

would be held to the same standards as an attorney, and of the potential for unfairness 

in the process because Appellant had little to no knowledge of jury selection, 

creating a jury charge, the admissibility of evidence, or proper objections thereto. 

Appellant answered each of the trial court’s questions. He agreed that selfrepresentation would be difficult, that he would be at a disadvantage, and that the 

process could be unfair because of his lack of knowledge of the litigation process.

Appellant also acknowledged that he did not know anything about the jury selection 

process or the rules pertaining to objections and admissibility of evidence, but he

told the trial court that he did not “think that [was] necessary.”

During the November pretrial hearing, Appellant’s court-appointed attorney

described her first interaction with Appellant wherein he refused to answer her 

questions. She told the trial court that she spoke with Appellant’s family, and that 

they indicated that Appellant “was not mentally ill,” but was likely “just being 
3

contrary.”1 During this hearing, Appellant repeatedly affirmed his desire to 

represent himself. When asked why Appellant did not want to work with his courtappointed attorney, Appellant told the trial court that she “came off in the wrong 

way.” Appellant emphasized that he just wanted to get “this out of the way” and 

taken care of that day on his own. Appellant signed a waiver of his right to counsel

at this hearing.

There were two additional pretrial hearings, one on December 16, 2021, and 

another on March 14, 2022. During the December hearing, Appellant reiterated his 

desire to represent himself, and he also waived his right to a jury trial. At the 

November pretrial hearing, Appellant impliedly justified his self-representation by 

stating that there was no evidence or eyewitnesses to support the case against him. 

Despite this, at the March pretrial hearing—two days before Appellant’s bench 

trial—the attorney for the State informed the trial court that Appellant had declined 

the opportunity to look at the discovery in his case prior to trial. After the State 

notified the trial court, the trial court asked, “[Appellant], you don’t want to review 

the evidence that’s going to be used against you?” [Appellant] responded, “No, sir.”

The bench trial was held on March 16, 2022. Appellant’s court-appointed 

counsel was available to Appellant during trial to answer questions, and provided 

Appellant with a copy of the indictment, as well as counsel’s discovery review letter 

and redacted discovery for review during the trial. Appellant indicated that he 

understood that he could ask court-appointed counsel questions during the course of 

the trial. The State presented five witnesses. Appellant did not raise any objections

to their testimony, cross-examine them, or present any evidence. Nor did he make

an opening or closing statement.

1

On appeal, Appellant concedes that he was competent.
4

Ultimately, the trial court found Appellant guilty of the offense of robbery,

sentenced him to seven years’ imprisonment, and waived Appellant’s court costs. 

Appellant timely filed a notice of appeal, and an attorney was appointed to represent 

him on appeal.

Constitutional Right to Self-Representation

Every criminal defendant has a constitutional right to the assistance of 

counsel and a constitutional right to self-representation. U.S. CONST. amend. VI; 

TEX. CONST. art. I, § 10. The right to self-representation is separate from the right 

to assistance of counsel, and to choose one is to forego the other. Osorio-Lopez v. 

State, 663 S.W.3d 750, 756 (Tex. Crim. App. 2022) (citing U.S. v. Purnett, 910 F.2d 

51, 54 (2d Cir. 1990)). The right to self-representation does not attach until asserted. 

Id. (citing Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)). “Assertion of 

the right to self-representation must be clear and unequivocal[,]” and the waiver for 

a defendant’s right to counsel must be made knowingly and intelligently. Id. (citing 

Faretta v. California, 422 U.S. 806, 835 (1975)). The record must demonstrate that 

the trial court thoroughly admonished the defendant, and the trial court must warn 

the defendant of the “dangers and disadvantages” of self-representation to 

establish that he understands his choice. Id. at 756–57; see TEX. CODE CRIM. PROC.

ANN. art. 1.051(g) (West Supp. 2023) (If a defendant wishes to waive the right to 

counsel for purposes of proceeding to trial, the trial court shall advise the defendant 

of the nature of the charges and the dangers and disadvantages of selfrepresentation.); see also e.g., Faretta, 422 U.S. at 836 (it was sufficient to warn 

Appellant that it was a mistake not to accept the assistance of counsel and 

that he would be required to follow all the rules of trial procedure); Barski v. State, 

No. 11-13-00217-CR, 2015 WL 5192320, at *3 (Tex. App.—Eastland Aug. 21, 

2015, pet. ref’d) (Appellant knowingly and intelligently waived his right to counsel 
5

after he was warned of the dangers and disadvantages of such choice.). But an 

invalid waiver waives nothing, and whether the waiver of counsel was effective 

depends on the totality of the circumstances. Osorio-Lopez, 663 S.W.3d at 756.

To properly admonish a defendant as to the “dangers and disadvantages” of 

self-representation, the trial court must inform the defendant “that there are technical 

rules of evidence and procedure, and he will not be granted any special consideration 

solely because he asserted his pro se rights.” Williams v. State, 252 S.W.3d 353, 

356 (Tex. Crim. App. 2008) (quoting Johnson v. State, 760 S.W.2d 277, 279 (Tex. 

Crim. App. 1988)). The admonishments required depend upon the circumstances, 

including a defendant’s sophistication and education, as well as the complexity of 

the proceeding or charge. Huggins v. State, 674 S.W.3d 538, 541 (Tex. Crim. App. 

2023) (citing Iowa v. Tovar, 541 U.S. 77, 88 (2004)). A trial court, however, has no 

obligation to follow a specific line of questioning or “script” to ensure that a 

defendant who has asserted his right to self-representation is doing so “with eyes 

open.” Osorio-Lopez, 663 S.W.3d at 757 (citing Burgess v. State, 816 S.W.2d 424, 

428 (Tex. Crim. App. 1991)); see Blankenship v. State, 673 S.W.2d 578, 583 (Tex. 

Crim. App. 1984). The focus of the trial court’s admonishments is not whether the 

defendant is equipped to represent himself at trial, but on whether the defendant 

understands his choice to proceed pro se. Osorio-Lopez, 663 S.W.3d at 757 (citing 

Godinez v. Moran, 509 U.S. 389, 400–01 (1993)). Further, if the trial court 

determines that a waiver of the right to counsel is voluntarily and intelligently made, 

the trial court shall provide the defendant with a written statement to sign. See CRIM.

PROC. art. 1.051(g); Osorio-Lopez, 663 S.W.3d at 757.

Courts indulge every reasonable presumption against waiver and do not 

presume acquiescence in the loss of fundamental rights. Osorio-Lopez, 663 S.W.3d

at 756; Williams, 252 S.W.3d at 356. The trial court is responsible for determining 
6

whether a defendant’s waiver is knowing, intelligent, and voluntary. Williams, 252 

S.W.3d at 356. As we have said, to assess whether a waiver is effective, courts 

consider the totality of the circumstances. This means that courts must examine the 

particular facts and circumstances surrounding that case, including the background, 

experience, and conduct of the accused. Id. Faretta requires that if (1) the accused 

clearly and unequivocally declares to the trial court that he wants to represent himself 

and does not want counsel, (2) the record affirmatively demonstrates that the accused 

is literate and has a sufficient understanding of proceeding pro se and that he is 

voluntarily exercising his informed free will, and (3) the trial court adequately warns 

the accused of its opinion that it is a mistake not to accept the assistance of counsel 

and that the accused will be required to follow all ground rules of trial procedure, 

then the accused’s right to self-representation cannot be denied. Dolph v. State, 440 

S.W.3d 898, 902 (Tex. App.—Texarkana 2013, pet. ref’d) (citing Faretta, 422 U.S. 

at 835–36); Barski, 2015 WL 5192320, at *2.

Analysis

We examine the admonishments made by the trial court, and we consider the 

totality of the circumstancesto assess whether Appellant’s waiver was effective. See

Osorio-Lopez, 663 S.W.3d at 757 (citing Godinez, 509 U.S. at 400–01); Williams, 

252 S.W.3d at 356. The record reveals that Appellant was twenty-five years old at 

the time of the first pretrial hearing. Appellant shared that he has a high school 

education and primarily has worked in masonry and landscaping. Appellant was 

charged with robbery and prior to trial, the trial court read the indictment to him—

to which Appellant responded that he understood the charges against him.

The trial court first admonished Appellant of the dangers and disadvantages 

of self-representation at the pretrial hearing on November 5, 2021. The trial court 

told Appellant that self-representation was “difficult” and that he would be at a 
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disadvantage. The trial court further admonished Appellant that he would be held 

to the same standards with respect to evidence, objections, and the jury charge. The 

trial court cautioned Appellant that the State may be able to take advantage of 

Appellant because of his lack of knowledge of objections and Appellant 

acknowledged that that would be unfair. Finally, the trial court told Appellant that 

every person of whom he was aware, who previously had chosen to proceed pro se,

ultimately regretted the decision. Despite these warnings, Appellant indicated that 

he understood the circumstances and that he did not want to work with courtappointed counsel and wished to represent himself.

The trial court additionally informed Appellant that he could later withdraw 

his request for self-representation and explained how the case would move forward 

to jury selection and trial—cautioning against the disadvantages that Appellant 

would face during each stage. The trial court informed Appellant that he was facing 

a punishment range between two and twenty years of imprisonment. Appellant 

indicated that he understood and repeatedly elected to proceed with selfrepresentation. Although Appellant refused to review discovery prior to trial, courtappointed counsel provided Appellant with documents relevant to the charges 

against him at the time of trial. Appellant chose to ask no questions during crossexamination, make no objections, present no witnesses, and he declined to argue on 

his own behalf during opening or closing statements. All of the evidence indicates 

that the trial court thoroughly and repeatedly admonished Appellant regarding the 

challenges and the disadvantages of self-representation. The evidence further 

supports that Appellant understood such admonishments but chose to proceed pro se

in spite of the warnings from the trial court.

Appellant’s argument on appeal focuses on his alleged lack of understanding 

of the disadvantages of self-representation, and on not being “firmly committed” to 
8

self-representation.2 The record belies both assertions. First, the trial court not only 

painstakingly warned Appellant of the dangers and disadvantages at the November 

pretrial hearing, but the trial court reiterated those dangers and disadvantages at the 

December pretrial hearing and again immediately before trial began. If Appellant 

did not understand the extent of the disadvantages—or the risk of imprisonment—

he had every opportunity to express that and to ask questions of court-appointed 

counsel and the trial court. He chose not to do so. Instead, he affirmed that he 

understood and still wished to represent himself.

Second, although Appellant’s initial request to proceed pro se appeared to be 

based on Appellant’s perception that his court-appointed attorney was not working 

on his behalf, he also told the trial court that he just did not want counsel’s assistance.

Despite Appellant saying that he would hire his own attorney—and indicating that 

he would like a different lawyer the next time he was back in court—Appellant made

clear his choice to represent himself at least five times in the first pretrial hearing 

and repeated the same request at the December pretrial hearing. Additionally, at 

trial, after reading the indictment and asking Appellant if he understood the charges, 

the trial court again asked Appellant if he wanted to proceed pro se and Appellant 

affirmed that he did. Indulging every reasonable presumption against waiver and 

considering the totality of the circumstances, we conclude that the evidence strongly

2

Appellant argues that he did not understand the disadvantages of self-representation, that he was 

not firmly committed to self-representation, and, alternatively, that he lacked the ability to effectively 

represent himself. On Appellant’s third argument, we note that, for the effective waiver of counsel and 

assertion of the right of self-representation, “a defendant need not have the skill and experience of a lawyer 

‘to competently and intelligently choose self-representation,’” and “[t]he focus is on whether the defendant 

[understands the choice] to proceed pro se, not whether he is equipped to represent himself at trial.” See

Osorio-Lopez, 663 S.W.3d at 757; see also Faretta, 422 U.S. at 835–36; Cole v. State, 590 S.W.3d 1, 3 

(Tex. App.—Beaumont 2019, no pet.) (“[T]he trial court may not require the defendant to be represented 

at trial by counsel merely because the court believes the defendant does not have the legal training needed 

to conduct his defense.” (emphasis in original)).
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supports that Appellant was “firmly committed” to self-representation, Appellant 

expressed a clear desire to exercise this right, the trial court properly and thoroughly

admonished him, and Appellant’s waiver of the right to counsel was knowingly and 

voluntarily made. See Dolph, 440 S.W.3d at 902–04; Barski, 2015 WL 5192320, at 

*4. Accordingly, Appellant’s sole issue on appeal is overruled.

We note, however, that the judgment contains nonreversible errors. An 

appellate court has the power to modify the trial court’s judgment to make the 

judgment speak the truth when it has the necessary information before it to do so. 

See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 

1993). We note that the judgment incorrectly reflects that Appellant pleaded guilty 

to robbery. Because the record confirms that Appellant pleaded “not guilty” to 

robbery, we modify the judgment of the trial court to reflect that Appellant pleaded 

“Not Guilty.” Second, the judgment lists Appellant’s attorney of record as Leigh W. 

Davis; however, the record is clear that Appellant proceeded pro se. We modify the 

judgment to read “Pro Se” instead of “Leigh W. Davis” for the “Attorney for 

Defendant.” Third, the judgment incorrectly reflects that Appellant entered an open 

plea. Appellant proceeded with a bench trial, thus, there was no plea bargain 

between the parties to be incorporated into the judgment. We modify this section to 

read “N/A” instead of “OPEN PLEA” and remove the marker indicating the “Terms 

of the Plea Bargain are attached and incorporated” in the judgment. Finally, during 

the punishment hearing, the trial court waived the court costs for Appellant. See

CRIM. PROC. art. 43.091(c)(1). We therefore modify the judgment of the trial court 

to reflect court costs as “$0.00.”
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This Court’s Ruling

As modified, we affirm the judgment of the trial court.

W. BRUCE WILLIAMS

JUSTICE

February 22, 2024

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.