Antonio Riojas, Jr. v. State

NO. 07-03-0472-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E MAY 19, 2004 ______________________________ ANTONIO RIOJAS, JR., Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 94-418,818; HON. BRADLEY UNDERWOOD, PRESIDING _______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. (1) Antonio Riojas, Jr. (appellant) appeals from an order revoking his community supervision. He had originally been convicted of possession of a controlled substance via a plea bargain and plea of guilty. Pursuant to the plea agreement, he was sentenced to ten years imprisonment. However, the sentence was suspended, and appellant was placed on ten years probation. Subsequently, the State filed three separate motions to revoke probation at three separate times with the first two ending in appellant's probation being reinstated. However, on the third motion to revoke, appellant pled true to one of the three grounds supporting revocation. The trial court granted the motion on all three grounds, revoked appellant's probation, and sentenced him to ten years in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed a motion for new trial and noticed his appeal, and counsel was appointed. Appellant's counsel then moved to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), and representing that he had searched the record and found no arguable grounds for reversal. The motion and brief illustrated that appellant was informed of his rights to review the appellate record and file his own brief. So too did we inform appellant that any pro se response or brief he cared to file had to be filed by May 17, 2004. To date, appellant has filed no pro se response or brief. In compliance with the principles enunciated in Anders, appellate counsel discussed two potential areas for appeal which concerned the court's decision to revoke appellant's community supervision and ineffectiveness of counsel. However, counsel explained how "a plea of true, standing alone, is sufficient to support a trial court's decision to revoke probation, . . . ." And, in regards to ineffective assistance of counsel, appellate counsel explained how the record is insufficient to support such a claim. So too did we conduct an independent review of the record to determine whether there existed reversible error and found none. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring us to conduct an independent review). The record illustrated that no appeal was taken within 30 days from the date of appellant's guilty plea and conviction complaining of error occurring at that time; thus, we have no jurisdiction over any purported error arising from or prior to the plea hearing. Manuel v. State, 944 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); see Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001). Furthermore, finding that any one ground warranting revocation existed, the trial court was entitled to revoke appellant's community supervision. Moore v. State, 605 S.W. 2d 924, 926 (Tex. Crim. App. 1979). Here, appellant pled true to one ground contained in the motion to revoke. Standing alone, a plea of true is sufficient to support the trial court's order of revocation. Hatten v. State, 71 S.W.3d 332, 335 n.2 (Tex. Crim. App. 2002). Thus, the appellate record contained evidence supporting the decision to revoke probation. Furthermore, the punishment levied was within the range provided by statute. Accordingly, we affirm the judgment revoking probation and grant counsel's motion to withdraw. Brian Quinn Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. 75.002(a)(1) (Vernon Supp. 2004). in the head with the vise grips as appellant did, a person could be seriously injured or killed. In light of this evidence, a rational jury could have concluded, beyond a reasonable doubt, that the weapon was capable of causing death or serious bodily injury in the manner of its use or intended use. Thus, legally sufficient evidence supports the finding that appellant used a deadly weapon during the assault. Moreover, when that finding is tested against the entire record it is not manifestly unjust. Nor does it undermine our confidence in the proceeding. It may well be that the evidence conflicted regarding whether appellant actually swung the vise grips at Dilbeck. Yet, that conflict was for the jury to decide, and there was ample evidence to support its decision. See Nash v. State, 175 S.W.3d at 430 (holding that a deadly weapon finding was supported by the object being placed against the victim, a threat to kill the victim, a description of the size and shape of the object as well as its ability to inflict harm or death, and the threatening manner in which it was used). Thus, it also has the support of factually sufficient evidence. Issue 2 - Self-Representation Appellant argues in his second issue that the trial court erred in not allowing him to represent himself at the punishment phase of the hearing. We overrule the issue. Appellant, who had appointed counsel, notified the trial court on the day of trial before voir dire commenced that he wished to represent himself. After admonishing appellant, the trial court allowed him to do so but asked that appointed counsel remain in court as standby counsel. In the middle of the guilt/innocence phase of the trial, appellant suddenly changed his mind and asked that his appointed counsel be allowed to represent him for the remainder of the trial. Again, the trial court agreed. However, prior to commencement of the punishment hearing, appellant once more sought to represent himself. At that time, the trial court refused the request. It is this ruling of which appellant complains. A criminal defendant has the right to self-representation under the Sixth Amendment to the United States Constitution. However, the right must be timely asserted which means before the jury is empaneled. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997); Bansal v. State, 169 S.W.3d 371, 377 (Tex. App.-Beaumont 2005, pet. dism'd); Birdwell v. State, 10 S.W.3d 74, 77 (Tex. Crim. App.-Houston [14th Dist.] 1999, pet. ref'd). Appellant's first request to represent himself was timely made, and the trial court granted it. However, his second request was not made until just prior to commencement of the punishment hearing. By that time, he had previously informed the court that he was "going to let [appointed counsel] take control of it." The court had also asked appellant if it was all right if the jury was informed that he (appellant) had decided to have counsel represent him the rest of the trial to which appellant responded, "[y]es, sir," and the jury was so informed. A defendant who initially asserts the right to represent himself may later abandon that right by inviting participation by counsel and thereby waiving the right of self-representation. Funderberg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986); Carroll v. State, 176 S.W.3d 249, 254 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd); Garrett v. State, 998 S.W.2d 307, 317 (Tex. App.-Texarkana 1999, pet. ref'd, untimely filed). Waiver may be found if it reasonably appears to the court that the defendant has abandoned his initial request to represent himself. Funderburg v. State, 717 S.W.2d at 642. Based on the record before us, we find that the trial court reasonably could have so found. Therefore, it did not err in denying appellant opportunity to represent himself during the remainder of the trial. Having overruled each issue, we affirm the judgment of the trial court. Per Curiam Do not publish. 1. Turner and Dilbeck were waiting on the police who had been called by the convenience store manager. They informed appellant that the police had been called, but appellant responded that he had "killed all the cops." Dilbeck believed appellant was under the influence of a narcotic.