### 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. 03-09-00622- CR

Donovan Walk er, A ppellan t

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 4 O F TRAVIS CO UNTY NO. D-1 -DC- 08- 9072 78, H ONO RAB LE MI KE DENTON, J UDGE P RESIDING

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

Do n ovan W alker pleade d g uilty to assault wit h family violence and was place d o n defe rre d adjudication community supervision. The trial court later adjudicate d his g uilt, finding that he had violated the terms of his co mmunity supervision by illega lly car ry ing a handg un. He was
sentenc ed to three y ear s in prison. On appea l, Walker contends that the trial court err ed by depriving him of his rig ht to self-r epre sentation. He also contends, and the State conce des, that the trial court

er red by making written finding s of violations of the terms of his community supervision that

wer e not or ally pronounce d at the adjudication hear ing. We will modify the judgme nt to delete all finding s of violations of the terms of community supervision other than illega l possession of a handg un, and af

firm the judg ment as modified. The State, in its Motion to Procee d with an Adjudication of Guilt, all eg ed that Walker violated the terms of his community supervision by failing to pay four amounts require d bythose terms, opera ting a motor vehicle without a l i ce n s e, and committing criminal offe nses by

intentionally and rec klessly car ry ing on or about his person a handg un and by knowing ly possessing

a usable quantity of marijuana

. At the outset of the hear ing, the court s t at ed that it would not
proce ed on the monet ar y d ef au l t s. Walker pleade d not true to the rema ining alleg ations. A state trooper testified that he stopped Walker for his rec kless driving , arr ested him afte r finding marijuana cig are tte remna

nts in the car , and t h en fo u n d a loaded handgun on the shelf behind the rea r seat

near Walker’s y oung daug hter. A fing erpr int expert testified that Walker’s fi n ger p rints matched those found on the handg un. At the end of the hea ring , the trial cour

t found that the S tate had not
prese nted evidenc e reg arding the driver’ s license alleg ation and found too much doubt that Walker possessed marijuana

. The trial court found true the alleg ation that Walker rec klessly or intentionally possessed a f

irea rm. On appea l, Walker conten d s that the trial court wrong fully denied him the rig ht to
repr esent himself. The Supreme Court has held that the Six th Amendment rig ht to counsel includes the rec iproca l rig ht to self-r epre sentation. Faretta v. Calif ornia , 422 U.S. 806, 818-20 (1975). The trial court must admonish the defe ndant about the dang ers and disadvantag es of self-r epre sentation only afte r the de fenda

nt clear ly and unequivoc ally

invokes his rig ht to self-re prese ntation. Brown

v. W ainwright , 665 F.2d 607, 610 (5th Cir. 1982) (citing Faretta , 422 U.S. at 835). An inq u i ry about self-r epre sentation is not a clea r invocation of self-r epre sentation. Burton v. Colli ns , 937 F.2d 131, 133-34 (5th Cir. 1991) (def endant’ s question “May I repr esent my self? ” in context of disc u s sion during which court told defe ndant he would not g et a new appointed lawy er was held to be an inquiry into alternatives r ather than a clea r and unequivoca l invoc ation of the rig ht to se lf-re prese ntation);

2see Barrientes v. State , No. 04-06-00541- CR, 2007 Tex. App. L EXI S 5165, at *3-4

(T ex . App.—San Antonio J uly 3, 2007, no pet.) (not desig nated for publication). A re q u es t fo r

new appointed coun s el does not invoke the rig ht to self-r epre sentation and must be supported by adequate ca

use. Cain v. State , 976 S.W .2d 228, 235-36 (Te x . App.—San Antonio 1998, no pet.). I n this case , Walker was not satisfied with his appointed counsel. Walker filed pro se 1 motions, expressed frustra tion that his counsel would not file his motions or make rec o m m ended objections, and stated that he wanted a continuance so that he could g et a new at t o rney . Walker direc tly asked, “ Can I speak for my self, ca n I repr esent my self? ” The trial court a llowed the State
to mark an exhibi t, then addre ssed Walker direc tly , say ing, “I f y ou’re telling me y ou want to proce ed

on y our own, I will cer

tainly listen to that reque st.” Walker did no t as sert his rig ht to repr esent himself, but said he wanted new appointed counsel beca use his curr ent counsel was not repr esenting him how he wanted to be represe nted, not ing that cou n s el woul d not file t he mot ions that Walker filed pro se. The trial court explained that it had rea d the motions and that co u n s el ap propriate ly opted not to file W alker ’s proposed motions or m ake his reque sted objections. The court opined 2 that Walker’s counsel was an excellent lawy er and wa s m aking corr ect decisions in repr esenting

Be fo re the hear ing, Walker moved in writing for appointment of new counsel due to a 1 conflict of interest, althoug h his motion did not specify what that conflict was. He did not reque st to proce ed pro se

. The trial court explained tha t Walker ’s motion for a full rec ord was unnece ssary beca use 2 a full rec ord was being made. Simi larly , the trial court explained that Walker’s motion for reduc ed bond was essentially moot as the result of the hear ing would be either rele ase or incar cer ation. The court explained that counsel corr ectly ref used to object to portions of the trooper’ s testimony with which Walker disag ree d, noting that the defe ndant’s disag ree ment with the testimony was not a leg al basis on which the court would exclude the testimony

. The court explained that such basele ss objections would hurt the attorne y ’s cr edibility and, with it, Walker’s prospe cts. 3Walker. The court then stated, “[I ]f y ou wish to repr esent y ourself, althoug h I would advise ag ainst

it, I will allow y ou to do it but I will continue to ask y our counsel to stay there to assist y ou. So y ou make the decision y ou need to make but we’ re g oing to proce ed with this case at this time.” The State proce eded with its examination of the witness. Walker beg an by asking a questi o n o f the witness, and the c ourt interrupte d:
THE COURT: [Defense counsel will] ask the questions, sir. THE DEF ENDAN T: He just told me he— THE COURT: No, I ’m not— THE DEF ENDAN T: Tell him y ou said that. [DEFENSE COUNSEL ]: J udg e, I don’t know if he w ants to or not. THE COURT: I ’m g oing to let y ou cross-e x amine this witness counsel.

Co u n sel then cross-e x amined the trooper. At the conclusion of the cross-e x amination, the court said to Walker, “Since y ou had a list of questions, I ’m g oing to g ive y ou a moment privately to speak
to y our l awy er. I f t here are any additional quest ions let’s m ake sure at this point, g o ahea d. Why don’t we take just a moment so y ou two can talk privately .” Walker and his counsel asked no further questions of the trooper at that point. His counsel later asked three questions on rec ross examination emphasizing that the troope r did not know how the mar ijuana or the g un wer e plac ed in the ca r. Walker did not unequivoca lly invoke his rig ht to self-r epre sentation. Walker at most querie d whether he could repr esent himself. I n context, he may simply have wanted to speak to the
court direc tly , which he was allowed to do. He stated that he wanted new appointed counsel—not

4that h e wa n ted t o proce ed without repr esenta tion by counsel. The court did not abridg e W alker ’s

rig ht to repre sent himself bec ause Walker did not clear ly

invoke that rig ht. Walker next contends and the State conce des that the t ri al co u rt err ed by signing a written judgme nt that did not confor m with the findi ng s made at the hearing

. I n criminal cas es, “[w]hen there is a conflict betwee n the oral pronounce ment of sentenc e in open court and t h e
sentenc e set out in the written judgme nt, the oral pronouncem en t co n t ro l s.” Thompson v. State , 108 S.W .3d 287, 290 (Tex. Crim. App. 2003). The trial court stated at the outset of the trial that it

was not considering adjudicating g uilt based on the alleg ations of unpaid costs, fines, and fee s. At the close of the hear ing, the trial court stated that the State had “esse ntially told me that y ou didn’t put on any evidenc e of [W alker ’s opera tion of a motor vehicle without a license].” The court orally
pronounce d that “as to the firea rm, I do find that alleg ation true. As to the marijuana , I suspect it is possible that someone else’s marijuana is in the g l o v e compar tment, but as to the g un I do find the alleg ations true, and so I am g oing to move to adjudicate y ou.” The written judgme nt, howeve r, includes aff

irmative finding s that Walker failed to pay req u i re d cost s, fines, and fee s, opera ted a motor vehicle w ithout a license, a nd illega lly

possessed a f

irea rm and mar ijuana. We modify the J udg ment Adjudicating Guilt signed O ctober 16, 2009, by

vacating all finding s that Walker violated the terms and cond i t i o n s o f community supervision except for the finding , which shall rema i n part of the judgme nt, that Walker “committed a subsequent offe nse i n t h at o n o r ab out the 29t h day of August, 2009, in the C ounty of Travis, State of Tex as, Donovan L amont Walker did then and there intentionally and rec klessly car ry on or about his person a handg un[.] ” Walker’ s three- y ear prison sentenc e is not challeng ed and r emains undisturbed.

5We affir m the judgme nt as modified.

David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Modified and, a s Modified, Aff irmed Filed: De cembe r 8, 2010 Do Not Publish

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