Armando Eugene Hicks v. State ( 2013 )

NUMBER 13-11-00636-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ARMANDO EUGENE HICKS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 359th District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
By two issues, appellant, Armando Eugene Hicks, appeals his conviction for
possession of cocaine, a controlled substance in Penalty Group 1, in an amount greater
than 400 grams, with intent to deliver, a first-degree felony offense. See TEX. HEALTH &
SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(a), (f) (West 2010). We affirm.
I. BACKGROUND1
Appellant was arrested after he attempted to purchase five kilograms of cocaine
from an undercover agent of the United States Drug Enforcement Agency. Thereafter,
appellant was indicted for possession with intent to deliver. Appellant pled not guilty
and elected to represent himself at trial. The trial court appointed standby counsel to
assist him.
After appellant attempted to file fraudulent liens on the home of the presiding
judge of the 9th District Court, where his case was pending, and the homes of the
prosecutors handling the case, the court ordered a psychiatric evaluation of appellant
and subsequently transferred the case to the 359th District Court. Again, appellant
attempted to file a lien on the home of the presiding judge, who later recused herself
and was replaced by a visiting judge. Ultimately, appellant proceeded to trial pro se, but
he was accompanied by standby counsel, who cross-examined several witnesses,
made trial objections, and conducted the direct examination of the only defense witness
other than appellant.
The jury found appellant guilty as charged and assessed punishment at life
imprisonment. This appeal ensued.
II. WAIVER OF RIGHT TO COUNSEL
In his first issue, appellant argues that his conviction must be reversed because
the trial court failed to properly admonish him regarding the perils of self-representation.
A. Applicable Law
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
2
“An indigent defendant is . . . entitled to appointed counsel unless the defendant
competently, intelligently, and voluntarily waives the right to counsel.” Williams v. State,
252 S.W.3d 353, 356 (Tex. Crim. App. 2008). To be constitutionally effective, the
assertion of the right to self-representation “must be made (1) competently, (2)
knowingly and intelligently, and (3) voluntarily.” Moore v. State, 999 S.W.2d 385, 396
(Tex. Crim. App. 1999). “The decision to waive counsel and proceed pro se is made
‘knowingly and intelligently’ if it is made with a full understanding of the right to counsel,
which is being abandoned, as well as the dangers and disadvantages of self-
representation.” Id. at 396 n.4. “The decision is made ‘voluntarily’ if it is uncoerced.”
Id.
Once the defendant has asserted his right to self-representation, “the trial judge
must inform the defendant about the dangers and disadvantages of self-representation,
so that the record will establish that he knows what he is doing and his choice is made
with eyes open.” Williams, 252 S.W.3d at 356. “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.” Id.
“But a trial judge has no duty to inquire into an accused’s age, education, background or
previous mental history in every instance where an accused expresses a desire to
represent himself.” Id.
B. Standard of Review
“Courts indulge every reasonable presumption against waiver and do not
presume acquiescence in the loss of fundamental rights.” Id. “The trial judge is
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responsible for determining whether a defendant’s waiver is knowing, intelligent, and
voluntary.” Id. “To assess whether a waiver is effective, courts consider the totality of
the circumstances.” Id.
C. Discussion
In this case, the record reflects that appellant asserted his right to self-
representation from the outset of the proceedings. The record also reflects that the trial
court appointed counsel to advise appellant regarding the trial process and to ensure
that appellant understood the consequences of proceeding pro se. Subsequently, in a
hearing held approximately two weeks later, the trial court stated that it was going to
“assume” that one of the other two judges who had presided over appellant’s case had
advised him of the “dangers in representing yourself.” Appellant answered affirmatively.
The trial court asked appellant if he understood “that we operate under Rules of
Evidence,” and appellant stated that he did. The trial court also asked appellant if he
understood that counsel had been appointed to assist him, and appellant stated that he
did. In a hearing held the following month, the trial court asked appellant if he had re-
considered his decision to represent himself, and appellant stated that he still desired to
represent himself. Standby counsel was present during all of the foregoing exchanges
and assisted appellant at trial.
We note that “admonishments to a defendant about the perils of self-
representation are not required (though preferable) when, as in this case, standby
counsel has been appointed.” Cudjo v. State, 345 S.W.3d 177, 184 n.4 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d); see also Walker v. State, 962 S.W.2d 124, 127
(Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (“Although appellant in this case
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conducted his own defense, he did have access to standby counsel appointed by the
trial court. Therefore, we hold that the absence from the record of Faretta
admonishments was not error.”). Therefore, we reject appellant’s argument that the trial
court erred in failing to properly admonish him.
Appellant’s first issue is overruled.
III. ADMISSIBILITY OF EVIDENCE
In his second issue, appellant argues that the trial court erred in admitting the
evidence of cocaine because there were gaps in the chain of custody and evidence of
tampering.
A. Standard of Review
“An appellate court reviewing a trial court’s ruling on the admissibility of evidence
must utilize an abuse-of-discretion standard of review.” Weatherred v. State, 15 S.W.3d
540, 542 (Tex. Crim. App. 2000). “In other words, the appellate court must uphold the
trial court’s ruling if it was within the zone of reasonable disagreement.” Id. “In addition,
the appellate court must review the trial court’s ruling in light of what was before the trial
court at the time the ruling was made.” Id.
B. Applicable Law
“Absent evidence of tampering or other fraud, . . . problems in the chain of
custody do not affect the admissibility of the evidence.” Druery v. State, 225 S.W.3d
491, 503 (Tex. Crim. App. 2007). “Instead, such problems affect the weight that the
fact-finder should give the evidence, which may be brought out and argued by the
parties.” Id. at 503–04.
C. Discussion
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In this case, appellant argues that there was evidence of tampering because,
according to a laboratory report by the Texas Department of Public Safety dated
October 11, 2005 (approximately five years before appellant’s arrest), the cocaine used
by law enforcement in appellant’s transaction weighed 6.91 kilograms; yet, the cocaine
admitted as State’s exhibit 88 had a gross weight of 7.132 kilograms. We disagree that
this is evidence of tampering.
Under section 37.09 of the Texas Penal Code, tampering with evidence occurs
when a person “alters, destroys, or conceals any record, document, or thing with intent
to impair its verity, legibility, or availability as evidence in the investigation or official
proceeding” or “makes, presents, or uses any record, document, or thing with
knowledge of its falsity and with intent to affect the course or outcome of the
investigation or official proceeding.” TEX. PENAL CODE ANN. § 37.09(a) (West Supp.
2011).
At trial, the State’s laboratory technician testified regarding the discrepancy in the
weight of the cocaine. The first measurement of 6.91 kilograms was “net weight” (i.e.,
without packaging), whereas the second measurement of 7.132 kilograms was “gross
weight” (i.e., with packaging). The witness further testified that it is not unusual for the
packaging materials to weigh 200 grams or more when dealing with this quantity of
cocaine. In light of the foregoing testimony, we conclude that the trial court’s ruling was
within the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542.
Furthermore, any alleged gaps in the chain of custody go to weight, and not
admissibility, of the evidence. See Druery, 225 S.W.3d at 503–04.
Appellant’s second issue is overruled.
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IV. CONCLUSION
The judgment of the trial court is affirmed.
_______________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
28th day of February, 2013.
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