NUMBER 13-07-00260-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

FELICIANO AVALOS, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 370th District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion by Chief Justice Valdez

Appellant, Feliciano Avalos, Jr., appeals his state-jail felony conviction for theft. See

TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (Vernon Supp. 2008). By two issues, Avalos

contends that the trial court erred by (1) not properly admonishing him of the

disadvantages of self-representation, and (2) denying his request for standby counsel at
2

trial. Finding no factual basis to support Avalos’s issues, we affirm the trial court’s

judgment.

I. BACKGROUND

On May 2, 2006, Avalos was indicted for stealing a $2,700 plasma-screen television

from a Sam’s Club store. Avalos initially retained L. Aron Peña, an attorney, to represent

him. At an October 16, 2006 pre-trial hearing, which was attended by Avalos, Peña, and

the State, Avalos announced that he wanted to represent himself. The following

discussion took place between Avalos, the trial court judge, the Honorable Noe Gonzalez,

Peña, and the State:

Avalos: I'm presumed innocent.

Court: No. What is your announcement? You have no lawyer? 

You are proceeding without a lawyer; is that correct?

Avalos: Yes, sir, Your Honor.

Court: Are you sure you want to proceed without a lawyer?

Avalos: Well, Your Honor— 

Court: It is a yes or no?

Avalos: Yes, sir, Your Honor.

Court: All right. Now, you understand that the constitution allows you

your right to counsel?

Avalos: Yes, sir, Your Honor.

Court: And you chose your counsel. And now you are choosing to

proceed without your counsel; is that correct?

Avalos: Yes, sir, Your Honor.
 Earlier in the hearing, Avalos opined that the City of Pharr had a “campaign” against him because 1

he listened to different music and owned his own home.

3

Court: Because you had hired Mr. Aron Peña?

Avalos: Yes, sir, Your Honor.

Court: And you now have fired him?

Avalos: Yes, Your Honor.

 . . . . 

Court: I really do think, and I'm going to suggest to you, that you get

a lawyer.

Avalos: Well, Your Honor, like I said—

Court: No.

Avalos: He who represents himself is a fool.

Court: Well, then you are admitting you are a fool.

Avalos: I'm— 

Court: Just listen to me, please. The frustration that you see in my

eyes and in my face is that I am a true believer in the

constitution of our country.

Avalos: So am I.

Court: Will you stop interrupting me. And because I’m a firm believer

that the constitution protects our rights, there is a reason why

we have a right to counsel. You may think that you are the

most articulate individual in the city of Pharr, and that your

music is superior, and the fact that you own your home makes

you different than the police in the city of Pharr, and that’s your

theory.[1] 

But let me suggest something to you. Just because people

have an idea that lawyers are scoundrels, or whatever you

want to call them, lawyers are trained. And you get yourself a

good lawyer. And that lawyers can protect your rights without
4

going through a needless exercise of what the DA is going to

do. 

I mean, I’m not just pulling your leg here. If you go up against

Mr. Orendain [the assistant district attorney assigned to the

case], you are going up against —

Avalos: The best, I believe.

Court: Let me finish. And someone who doesn’t interrupt me, either.

You are going up against a man that is responsible for trying

most of the capital murder cases in this County, the one who

tries probably the most egregious crimes in this County and

has the experience to do it. And you stand here indignant

because you are charged with a crime that you believe that

you are not guilty of, and that’s cool. But just because you are

indignant doesn’t make you somehow or another a super

advocate, all right.

Avalos: Yes, Sir.

Court: I have never said this on the record. I’m going to say it. There

is an old saying in Spanish: “El que Dios no lo oye - El que no

habla, Dios no lo oye.” 

Let me suggest something to you. Orendain is not Dios. And

you shouldn’t be talking to him the way that you are attempting

to talk to him, because he is going to take advantage, because

that’s his job. His job is to make sure that he prosecutes those

individuals that he believes are guilty. And he believes that

you are guilty. 

So you can hear the chuckles from the people. They are not

laughing because they feel sorry for you, they are laughing

because they are seeing this exercise of futility. They are

seeing you say things that that man is just writing down like he

is a secretary, and he is not a secretary, he is a full-fledged

prosecutor. So once again, you have the absolute right to

represent yourself. And I’m going to let you. But my advice to

you is for you to get counsel. All right. If you are dissatisfied

with counsel that you hired before, there are plenty of lawyers

out there that can help you. 
5

You are set for November 20. Okay?

Avalos: Your Honor, I appreciate your patience.

Court: Mr. Peña?

Peña: For the last three weeks I have been in trial.

Court: He didn’t spend that much time talking about that because I cut

him off.

Peña: Boy, that would be good, judge. 

Court: I cut him off, Mr. Peña, because as far as I’m concerned, the

most important thing for me is that he is telling me that he

wants to represent himself. I am advising him not to.

Peña: I can stand by, if you would like me to stand by as counsel.

Court: Mr. Peña, he doesn’t want you as counsel. And if he wants to

represent himself, that's fine. I am advising him to get other

counsel if he doesn’t like the way you represent him. And he

just is making certain requests from the DA’s office. I am

making the DA available to him sometime this week. He can

do whatever he needs to do. 

Peña: I think that he has dismissed me. I would like leave to

withdraw.

Court: Any objection?

. . . . 

Court: Okay. Mr. Peña, you are dismissed. Your Motion to Withdraw

is granted. Please get me an order. 

Pena: I will, Your Honor. Thank you very much.

On February 20, 2007, the case was transferred to an auxiliary court; the auxiliary

court held a final pre-trial hearing, and called the case for trial. At the final pre-trial hearing,
6

the auxiliary court judge, the Honorable Jaime Garza, entertained a trial amendment

regarding the indictment by the State. The following colloquy then took place:

Court: We understand you’re a layman, okay.

Avalos: I’m on trial for my life, Your Honor. It’s going to say whether I’m

an honorable man or a thief.

Court: You’re rolling the dice, sir, and not us.

Okay. Now, I’m going to tell you further and that’s why I asked

you if you had any legal experience. You seem to know what

you’re doing. However, you’re still a layman. You’re not a

lawyer are you?

Avalos: No, sir, Your Honor.

Court: Okay. Do you ever know the words contempt of court?

Avalos: Yes, sir, Your Honor.

Court: All right. I’m going to hold you to the same standards that I’m

going to hold her [the assistant district attorney].

Avalos: Yes, Your Honor.

Court: You’re expected to respect this court and the jury. You’re

expected to follow the Rules of Criminal Procedure.

Avalos: Yes, sir, Your Honor.

Court: Otherwise you will be held in contempt.

Avalos: Yes, sir, Your Honor

. . . .

State: And, Judge, originally the Defendant was—so the record can

reflect a history of the trial. The arraignment—I show that the

Defendant was arraigned on June 19, 2006 and Mr. Aron

Pena, Sr. was originally on the case. And I believe that
 There is nothing in the record to suggest that Peña was a court-appointed attorney or that Avalos 2

was found indigent by the trial court so as to be eligible for a court-appointed attorney. See TEX. CODE CRIM.

PROC. ANN. art. 1.051(c) (Vernon 2005) (“An indigent defendant is entitled to have an attorney appointed to

represent him in any adversary judicial proceeding that may result in punishment by confinement and in any

other criminal proceeding if the court concludes that the interests of justice require representation.”).

7

Defendant did not want Mr. Pena to represent him and,

therefore, he was allowed to withdraw. And the Defendant did

not wish other court[-]appointed counsel or to retain other [2] 

counsel.

Court: Well, my understanding is that this morning before Judge

Gonzalez that you refused counsel; is that correct, sir?

Avalos: Yes, sir, Your Honor.

Court: Okay. And my understanding further is that he said you

were—that he would let you proceed—

Avalos: Pro se.

Court: —by yourself as you desire; is that correct?

Avalos: Yes, sir, Your Honor.

Court: All right. We’re going to go ahead—and we’ve got a jury

coming in at 2:45 which is in a few minutes. . . .

State: And, Judge, just for the record if the court can make a finding

that the Defendant has knowingly, intelligently, and voluntarily

waived his right to a court[-]appointed counsel in this case.

Court: That’s what—I just made that finding. I just inquired and I will

make that finding that you waived willingly, knowingly and

voluntarily—

Avalos: Your Honor, — 

Court: —your right to counsel, sir. Yes, sir?

Avalos: I was wondering why at least—I couldn’t—they couldn’t at

least—what I was saying is I wanted to represent myself. I’ve

seen Defendants in other trial have at least an attorney, you
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know, advising them on the legal maneuvers.

Court: Didn’t you—

Avalos: This way I won’t be in contempt—

Court: Didn’t you tell—

Avalos: —of court, Your Honor.

Court: —tell Judge Gonzalez that you did not want any lawyer? Didn’t

you or not?

Avalos: Yes, sir.

Court: You just said you did.

Avalos: Yes, sir, Your Honor.

Court: All right.

Avalos: Yes, sir, I did.

Court: Now, you’re changing your mind?

Avalos: No. No, I’ll you know, Your Honor,—

Court: These are things you take—

Avalos: —I made my bed and I’ll lie in it.

Court: Well, these are things you take up earlier, sir. And, the other

judge sent the case and he made these rulings at your

request.

Avalos: Yes, sir.

Court: And I inquired again and you agreed.

Avalos: Yes, sir, Your Honor.
 Avalos does not challenge the “knowingly and intelligently” requirement. 3

9

Court: Okay. Now, we’re going to pick the jury shortly.

At trial, Avalos pleaded not guilty. The State called a Sam’s Club employee and a

McAllen police detective. Avalos testified in his own defense, and called his wife and

daughter to testify. The jury found Avalos guilty of theft. At the punishment phase, the trial

court sentenced Avalos to two years in the Texas Department of Criminal Justice and

ordered him to pay $2,900 in restitution. Avalos’s sentence was suspended, and he was

placed on community supervision for three years. This appeal ensued.

II. DISCUSSION

By his first issue, Avalos contends that the trial court did not properly admonish him

regarding the dangers and disadvantages of self-representation. We disagree.

The Sixth Amendment to the United States Constitution and Article I, Section 10 of

the Texas Constitution provide that a defendant in a criminal trial has the right to

assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The Sixth

Amendment also includes the reciprocal right to self-representation. Williams v. State, 252

S.W.3d 353, 356 (Tex. Crim. App. 2008) (citing Faretta v. California, 422 U.S. 806, 818

(1975)); see also Oliver v. State, 872 S.W.2d 713, 715-16 (Tex. Crim. App. 1994). Before

being permitted to represent himself, a defendant must be made aware of the dangers and

disadvantages of self representation and must “knowingly and intelligently” forego the

benefits of having counsel. Faretta, 422 U.S. at 835; Geeslin v. State, 600 S.W.2d 309, 3

313 (Tex. Crim. App. 1980); see also Hatten, 71 S.W.3d 332 334 (Tex. Crim. App. 2002)

(holding that despite Faretta, waiver of counsel must be “knowing, intelligent and
10

voluntary.”).

A waiver will not be presumed or implied from a silent record. See Carnley v.

Cochran, 369 U.S. 506, 516 (1962). Rather, the record must show that the defendant

intelligently and understandingly elected to proceed without counsel. Id.; Goffney v. State,

843 S.W.2d 583, 585 (Tex. Crim. App. 1992).

When advising a defendant about the dangers and disadvantages of

self-representation, the trial judge 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.” Johnson v. State, 760 S.W.2d 277, 279 (Tex.

Crim. App. 1988). “‘[C]ourts indulge every reasonable presumption against waiver’ and . . .

‘do not presume acquiescence in the loss of fundamental rights.’” Johnson v. Zerbst, 304

U.S. 458, 464 (1938). To assess whether a waiver is effective, courts consider the totality

of the circumstances. Williams, 252 S.W.3d at 356.

It is clear from the record that Auxiliary Court Judge Garza warned Avalos that he

was “expected to follow the Rules of Criminal Procedure.” Judge Garza further warned

Avalos that the court would hold him to the same standards as the assistant district

attorney that was prosecuting the case. Given Judge Garza’s admonishments and Judge

Gonzalez’s comments, Avalos went to trial with “his eyes wide open.” Johnson, 760

S.W.2d at 279. Avalos’s first issue is overruled.

By his second issue, Avalos contends that the trial court erred by not granting his

request for the appointment of standby counsel. Yet, Avalos neither frames the standard

of review nor explains how the alleged “error” is reversible. It is well established that an

accused has no absolute right to hybrid representation. E.g., Landers v. State, 550
11

S.W.2d 272 (Tex. Crim. App.1977). A trial court may, in its discretion, however, permit

both counsel and the accused to jointly participate in the case. See Webb v. State, 533

S.W.2d 780, 784 n.2 (Tex. Crim. App. 1976). The record in this case indicates that Avalos

eventually withdrew the request by stating, “I made my bed and I’ll lie in it.” 

Even if we were to construe Avalos’s request as a re-assertion of his right to

counsel, a defendant’s right to withdraw his waiver of the right to counsel is not without its

limits. “Trial courts have the duty, and discretion, to maintain the orderly flow and

administration of judicial proceedings, including the exercise of a defendant’s right to

counsel.” Medley v. State, 47 S.W.3d 17, 23 (Tex. App.–Amarillo 2000, pet. ref’d) (citing

Faretta, 422 U.S. at 834 n.46). A defendant “does not have the right to repeatedly

alternate his position on the right to counsel and thereby delay trial.” Id. (citing United

States v. Pollani, 146 F.3d 269, 273 (5th Cir. 1998)). A “decision of the trial court as to the

effect the reclamation of the right by the defendant would have on the orderly

administration of justice will not be disturbed on appeal absent an abuse of discretion.” Id.

at 24. In this case, the auxiliary court could have viewed Avalos’s request as an attempt

to delay a trial that had been set for November 20, 2006, but did not begin until February

20, 2007. Therefore, we find no abuse of discretion. Avalos’s second issue is overruled.

III. CONCLUSION

The judgment of the trial court is affirmed.

________________________

ROGELIO VALDEZ

Chief Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and 

filed this the 30th day of December, 2008.