David Wayne Ford v. the State of Texas ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00689-CR
David Wayne Ford, Appellant
v.
The State of Texas, Appellee
FROM THE 424TH DISTRICT COURT OF BLANCO COUNTY
NO. CR01691, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted David Wayne Ford of both forgery and engaging in organized
criminal activity and after he pleaded “true” to two enhancement paragraphs, assessed punishment
at 20 years’ and 50 years’ imprisonment, respectively. See Tex. Penal Code §§ 32.21(b), (d),
71.02(a)(8), (b). The trial court entered judgments of conviction on the verdicts with the sentences
to run concurrently. In nine appellate issues, Ford contends that (1) Brady violations and
ineffective assistance of counsel entitle him to reversal of his convictions, (2) he was improperly
denied both a continuance and standby counsel’s help with jury selection, (3) the trial court should
have sustained his objection to the State’s giving closing punishment argument after he waived his
own, (4) comments during the punishment argument were objectionable, (5) the evidence was
insufficient to support his convictions, (6) we should “revisit” a decision by the Court of Criminal
Appeals about examining trials, (7) we should “revisit” a decision by the Court of Criminal
Appeals prohibiting calling witnesses who will assert their Fifth Amendment rights not to answer
questions, (8) he was entitled to a mistrial once one or two jurors saw him in handcuffs on a lunch
break, and (9) cumulative error requires reversal. We affirm.
BACKGROUND
On January 18, 2019, Ford entered the Blanco Security State Bank & Trust and
cashed a check for $2,209.11. His name was typed on the check, which was purportedly drawn
by J.T. Drilling, Ltd., on its account with a Fredericksburg bank. The Blanco bank branch vice
president called the Fredericksburg bank to verify funds. Around this time Vincent Smith-Brule
walked in but left about 30 seconds later, when the branch vice president asked Ford questions.
After Smith-Brule left, he got into a white car parked across the street. The branch vice president
finished her call; counted out the $2,209.11 in cash, including four $50 bills; and handed it to Ford,
who took it and walked out. He walked back across the street and got into the same white car.
About eight minutes later and after Ford had left the bank, Smith-Brule got out of
the white car that Ford got in and walked back in the bank but to a different teller line than the one
Ford had used. He handed over his ID and presented for cashing another check, which had his
name typed on it and was also purportedly drawn on J.T. Drilling’s account and looked like Ford’s.
The branch vice president suspected something and reported this to the branch
manager, who called J.T. Drilling. He spoke with its owner, who said that neither check was
authorized. Meanwhile, Smith-Brule quickly left the bank, leaving his ID and the check, and got
back in the same white car, which had changed parking spots. Video surveillance showed both
Ford and Smith-Brule enter the car, and the branch manager phoned a Blanco Police Department
(BPD) sergeant, who drove up in time to spot the car and gave chase.
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He followed for about a minute before the car pulled over near the Old Blanco
County Courthouse. Rasheen Smith was driving, Smith-Brule sat in the front seat, and Ford sat in
the back driver’s-side seat. Not long before the car turned onto the courthouse’s street, the sergeant
radioed a colleague and said, “They’re attempting to hide something.” He thought that Ford and
Smith-Brule “were making furtive movements inside of the vehicle . . . , which led [him] to believe
that they were attempting to hide something or conceal something.” This went on for several
seconds, with both Ford and Smith-Brule “leaning towards the center console area.”
Once the car stopped, other officers, including BPD Detective Ben Ablon, arrived
to assist. The sergeant ordered Smith out of the car and handcuffed him. In the process, Smith’s
legs knocked a bundle of ten checks out of the car and onto the ground. The sergeant picked up
the checks and discovered ten other checks with the recipients’ names typed on them:
a. another purportedly from J.T. Drilling to Ford, for $2,490.21;
b. another purportedly from J.T. Drilling to Smith-Brule, for $2,203.08;
c. two purportedly from Cribley Enterprises Inc. to Ford, for $1,450.88 and
$1,475.04, respectively;
d. two purportedly from Cribley Enterprises to Smith-Brule, for $1,380.17 and
$1,405.78, respectively;
e. two purportedly from Chaparral Cabinetry Inc. to Ford, for $1,403.84 and
$1,475.04, respectively; and
f. two purportedly from Chaparral Cabinetry to Smith-Brule, for $1,350.21 and
$1,369.33, respectively.
Law enforcement later spoke to J.T. Drilling’s, Cribley Enterprises’, and Chaparral Cabinetry’s
owners, and they all stated (i) that they did not know or employ Ford, Smith, or Smith-Brule
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and (ii) that their companies did not authorize the checks. Cribley Enterprises’ and Chaparral
Cabinetry’s owners thought that their checks had been stolen from their mailboxes.
With Smith, Smith-Brule, and Ford detained, officers found $209 in cash on Ford,
including two $50 bills. They also found cash on Smith, including two $50 bills. There was no
other cash either on Smith-Brule or anywhere else in the car.
Det. Ablon borrowed a bodycam and started recording, advised Ford of his
Miranda rights, and asked him if he would tell his side of the story or stay silent. Ford first insisted
that Smith was putting him to work in the oilfield. He said that Smith had handed him “my check”
while they were in a supermarket parking lot across the street from the bank and told him to visit
that bank. When asked if the check was a pre-payment or if instead he had been working the job,
Ford responded that he had “been working” in the oilfield but could not name the location. Ford
said that Smith was paying him for “picking up stuff and hauling like a hotshot driver” but admitted
that he did not have a car and was instead riding in Smith’s.
Ford admitted to cashing the check but said that he gave all the money to Smith.
When Det. Ablon questioned why he would give someone else his money, Ford answered,
“Because I haven’t gotten paid yet,” and added that he had just started the job that day. Det. Ablon
expressed disbelief at that story and asked, “He wrote you that big of a check for one day?” Ford
answered, “I didn’t understand it either.” Ford mentioned setting up the job while getting picked
up in the parking lot of an Austin gas station by two men he did not know, who asked him if he
wanted to make some money. He left in the strangers’ car and was taken to San Antonio, where
he met Smith and Smith-Brule, who brought him to the Blanco bank. Det. Ablon asked him how
much he was supposed to earn for the job, and Ford answered, “He didn’t say yet.”
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The State indicted Ford for forgery and engaging in organized criminal activity and
alleged in two enhancement paragraphs prior felony convictions for assault on a public servant
and possession of a controlled substance. The trial court appointed an attorney to represent Ford.
At the arraignment, Ford, even after admonishments from the court about the risks, demanded
to represent himself. At every hearing afterward and all the way through guilt–innocence and
punishment, the trial court confirmed that Ford was representing himself, with the formerly
appointed attorney present as standby counsel, and Ford proceeded accordingly without objection.
During guilt–innocence, the State established the above facts through witnesses and
exhibits. When cross-examining certain witnesses, Ford tried to elicit testimony that someone else
concocted the check-cashing scheme, for example, the two men who accosted him at the Austin
gas station. In this vein, he elicited from the branch manager that it was possible that Ford could
have been just as “fooled” as bank employees were by the forged check that he cashed, meaning
that he could have thought that it was payment for legitimate labor.
Similarly with Det. Ablon, Ford advanced a theory involving surveillance videos
from the Austin gas station and places where Smith, Smith-Brule, and Ford had stopped before he
entered the bank. He suggested that because any such videos would have shown him approached
by two other men or talking to others, it would exonerate him. His theory, presumably, was that
others stole, altered, and marked the checks, which, he thought, would show that he was not guilty
of forgery. And he suggested that because others recruited him into the scheme, he did not himself
engage in organized criminal activity. Thus, when cross-examining Det. Ablon, Ford asked if
it was possible that surveillance videos from the other locations—a Walmart and a combined
Chicken Express and Stripes gas station—would show that another person gave Smith the bundle
of checks and the one that Ford cashed. Det. Ablon agreed that it was possible. And about the
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Austin gas station, Det. Ablon agreed that it was possible for surveillance video to have shown the
two men who approached Ford and their setting off with him for San Antonio. But Det. Ablon
also repeatedly pointed out to Ford that he never told the detective about any Walmart, Chicken
Express, or Stripes, so that law enforcement never knew where Ford wanted them to investigate.
Ford put on a case-in-chief. He called an investigator who the court had appointed
to work on Ford’s behalf. The investigator explained that by the time he spoke with Ford, any
relevant video footage from the Stripes in Blanco had been overwritten because the store’s DVR
overwrites older video when full. The investigator also discovered that Smith owned a townhome
in Maryland, presumably advancing Ford’s theory that because Smith had money for an expensive
home, Smith was the mastermind while Ford was no more than an unwitting participant.
After closing the evidence, the prosecutor and Ford argued to the jury. Ford argued:
“I don’t see how in the world on God’s green earth that [cash] got put in my wallet. . . . There was
no fingerprints extracted from . . . the money to see who might have . . . put that money in my
wallet. I was completely broke.” He then argued the theory that he could not be guilty of engaging
in organized criminal activity because others concocted the scheme or put him up to it:
The charge did take place in Austin, Texas at the very beginning. The State has
tried to start this case right there at the [supermarket] in Blanco where the bank is
at, but that’s not where it started. Like I said in my opening statement to you guys,
it started in Austin, Texas at a Shell station when two guys picked me up and took
me to Rasheen Smith at a Walmart.
....
. . . They cannot prove that I collaborated with anybody. They cannot prove that I
knowingly and intentionally went into a bank. The banker even said anybody could
have been fooled. They was even fooled with those checks. So when the—if I was
a victim of a scam and I was given a check thinking it was a per diem check to go
into a bank and try to cash it, I wouldn’t have knowingly and intentionally have
done that if I had known it was wrong, but the State tried to make me into a bad
guy that I’m not. And the evidence and the videos and the testimony that you guys
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have heard proves that the jury has a burden of proof in all criminal cases and that
they cannot prove beyond a reasonable doubt that I knowingly and intentionally
went into that bank and cashed that check knowing it to be fraud.
The jury convicted him of both forgery and engaging in organized criminal activity. After he
pleaded “true” to the enhancement paragraphs, the jury assessed 20 years’ imprisonment for
forgery and 50 years’ imprisonment for engaging in organized criminal activity. He now appeals.
DISCUSSION
I. The evidence was sufficient to show (a) Ford’s knowledge that the check he cashed
was forged and (b) that there was a combination.
We take up Ford’s fifth issue first because it would afford him the most relief if
meritorious. In that issue, he contends that the evidence was insufficient to support the convictions
for forgery and engaging in organized criminal activity.
A person commits forgery when the person “forges a writing with intent to defraud
or harm another.” Tex. Penal Code § 32.21(b). The writing at issue was, or purported to be, a
check. See id. § 32.21(a)(2)(A), (d). The definition of to “forge” that the State alleged was to
possess, with intent to issue, transfer, pass, or publish, a writing that was either altered, made,
completed, executed, or authenticated so that it purported to be the act of either J.T. Drilling, Ltd.,
or its owner, who did not authorize the act. See id. § 32.21(a)(1)(A)(i), (B), (C). The State also
alleged that Ford knew the check was forged, and it is that element that he contends was not
supported by sufficient evidence. See Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App.
2015) (State must prove that defendant knew instrument at issue was forged); Okonkwo v.
State, 398 S.W.3d 689, 695 (Tex. Crim. App. 2013) (same). Proof that the defendant knew the
instrument at issue was forged suffices to prove the intent to defraud or harm another required by
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the statute. See Johnson v. State, 425 S.W.3d 516, 520 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d); Palmer v. State, 735 S.W.2d 696, 699 (Tex. App.—Fort Worth 1987, no pet.).
As for engaging in organized criminal activity, a person commits that offense if
the person, with intent to establish, maintain, or participate in a combination or in the profits of a
combination, commits any forgery that is a felony. See Tex. Penal Code § 71.02(a)(8). As relevant
here, “combination” means three or more persons who collaborate in carrying on criminal
activities, although the participants may not know each other’s identity and although membership
in the combination may change from time to time. See id. § 71.01(a)(1), (2). Ford challenges the
sufficiency of the evidence to prove a combination. He argues that no evidence showed that he
and Smith-Brule ever communicated or that he knew about any other checks in Smith-Brule’s or
Smith’s possession, much less that any such checks were forged.
When reviewing the sufficiency of the evidence, “evidence is considered sufficient
to support a conviction when, after considering all of the evidence in the light most favorable to
the prosecution, a reviewing court concludes that any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.” Hernandez v. State, 556 S.W.3d 308,
315 (Tex. Crim. App. 2017). We are to consider “the combined and cumulative force of all
admitted evidence” and remember that “[d]irect evidence and circumstantial evidence are equally
probative” and that “circumstantial evidence alone may be sufficient to uphold a conviction so
long as the cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Ramsey, 473 S.W.3d at 808–09, 811.
The jury is the exclusive judge of the evidence’s credibility and weight, which
allows the jury to draw any reasonable inference from the evidence, and resolve any conflicts in
it, so long as the inferences or resolutions find support in the record. See id. at 809–10. The jury
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may use common sense and apply common knowledge, observation, and experience gained in
ordinary affairs. See Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
We begin with Ford’s knowledge that the check he cashed was forged. That
knowledge may be proven by circumstantial evidence, including the defendant’s conduct. See
Parks v. State, 746 S.W.2d 738, 740 (Tex. Crim. App. 1987); Young v. State, 591 S.W.3d 579, 588
(Tex. App.—Austin 2019, pet. ref’d); Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston
[1st Dist.] 2016, no pet.). But it cannot be inferred merely from possession, presentment, or
passing of the forged instrument. See Parks, 746 S.W.2d at 740; Leroy, 512 S.W.3d at 543.
For several reasons, “the combined and cumulative force of all admitted evidence”
reasonably supported the necessary finding. See Ramsey, 473 S.W.3d at 808. First, Ford’s acts
and words suggested his consciousness of his guilt. See Torres v. State, 794 S.W.2d 596, 598
(Tex. App.—Austin 1990, no pet.) (consciousness of guilt “is perhaps one of the strongest kinds
of evidence of guilt” and is “a circumstance tending to prove that [defendant] committed the act
with which he is charged”). The BPD sergeant testified that he saw Ford and Smith-Brule trying
to conceal something near the car’s center console during the chase. Trying to suppress evidence
shows consciousness of guilt. See id. at 598–99. The jury could have reasonably believed
that Ford’s changing statements to Det. Ablon included lies intended to conceal his guilt. See
Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1999, pet. ref’d) (defendant’s
lying about facts underlying offense shows consciousness of guilt). Ford told Det. Ablon that he
met Smith and Smith-Brule that day and that they were paying him over $2,200 upon first meeting
him and on someone else’s behalf to help them pick up and haul items from oilfields. The jury
was within its rights to disbelieve these self-serving statements and instead believe J.T. Drilling’s
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owner that Ford never did any work for him. See Bustamante v. State, 106 S.W.3d 738, 741 (Tex.
Crim. App. 2003) (jury may disbelieve “self-serving” statements).
Second, the check was for a large amount of money, but J.T. Drilling’s owner did
not know and had never employed Ford. The owner described his company as a family business
that has no payroll because only his family members work for the company. This evidence
“ma[de] it suspicious that appellant would be given such a large check by a stranger,” suggesting
that Ford knew it was forged. See Huntley v. State, 4 S.W.3d 813, 815 (Tex. App.—Houston
[1st Dist.] 1999, pet. ref’d) (en banc); accord Palmer, 735 S.W.2d at 698.
Third, Ford had a motive to cash the forged check. See Nisbett v. State, 552 S.W.3d
244, 265 (Tex. Crim. App. 2018) (“While motive is not by itself enough to establish guilt of a
crime, it is a significant circumstance indicating guilt.”); Russo v. State, 228 S.W.3d 779, 794
(Tex. App.—Austin 2007, pet. ref’d) (evidence of motive helps prove guilt). Not only did he tell
Det. Ablon that he was hundreds of dollars behind on his rent, but he gave that as justification for
agreeing to ride with two unknown men from Austin to San Antonio and then with Smith and
Smith-Brule, whom he met only that day, from San Antonio to Blanco and then entering the bank
that Smith told him to enter with the check that Smith gave him.
Fourth, the other unauthorized checks in the car constitute evidence of extraneous
forgeries, which makes it more likely that Ford committed forgery with the check that he cashed.
See Parks, 746 S.W.2d at 740 (evidence of extraneous forgeries helps prove forgery intent). His
story to Det. Ablon about oilfield work is made that much more unbelievable by the presence of
the other unauthorized checks, some of which were made out to Ford, including two for four-figure
amounts from a cabinetry company. The checks fell out of the car that Ford had ridden in from
San Antonio to Blanco and in which he was trying to conceal something alongside Smith-Brule.
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With these four reasons shown by the evidence, we conclude from the totality of
the evidence that the jury reasonably could have found that Ford knew that the check he cashed
was forged. This resolves Ford’s appellate arguments about the forgery conviction, so we turn to
his arguments about evidence of a “combination” as part of organized criminal activity.
Under this element, the evidence needed to show that three or more persons
collaborated in carrying on criminal activities, although the participants may not know each other’s
identity and although membership in the combination may change from time to time. See Tex.
Penal Code § 71.01(a)(1), (2). We have already concluded that the evidence sufficed to show
Ford’s knowledge that the check he cashed was forged, and he does not otherwise challenge the
sufficiency of the evidence to show forgery. We thus have a jury finding that Ford was involved
in criminal activities. The evidence also showed that Smith and Smith-Brule collaborated in those
criminal activities because they drove Ford from San Antonio to Blanco, Smith gave him the
forged check and told him which bank to use, Smith-Brule tried to cash a forged check in the same
bank shortly after but left apparently after hearing the branch vice president question Ford, and
Smith-Brule and Ford both tried to conceal something during the police chase. See Ford v. State,
282 S.W.3d 256, 263 (Tex. App.—Austin 2009, no pet.) (acts sufficient to prove combination need
not themselves be criminal acts). All this suffices to support the jury’s finding of a combination.
Our conclusion does not depend on any evidence that Smith-Brule and Ford talked to each other
(although the jury would have been reasonable to so conclude—they rode from San Antonio to
Blanco together and simultaneously tried to conceal something) or on Ford’s knowledge of the
rest of the checks in the car. We therefore reject Ford’s arguments and overrule his fifth issue.
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II. Brady obligations did not attach to videos that the prosecution never possessed, and
Ford has not shown that the videos could reasonably have changed his case’s outcome.
Ford’s first issue comprises two distinct sub-issues. In the first, he contends that
he is entitled to reversal of his convictions because law enforcement did not “seek out” and
“acquire” several “store videotapes” even though he alerted the State to the tapes’ potential
existence and potential exculpatory effect. A month before he was indicted, he says, he made
the State aware of surveillance videos likely recorded at the Austin gas station, Walmart, and
combined Chicken Express and Stripes. He adds that he later learned that any such videos
depicting him probably no longer existed because they were recorded over. Because the
potentially exculpatory videos no longer exist and, Ford says, the State had a duty to collect the
videos, he argues that he is entitled to a reversal of his convictions.
In the second sub-issue, he contends that he received ineffective assistance from
appointed trial counsel because counsel did not secure the videos or an investigator’s help to secure
them. In January 2019, the trial court appointed the attorney to represent Ford, but he “mo[ved]
to waive counsel and represent [him]self” in a motion that he signed on March 13 and that was
filed about a week later. At the April 5 arraignment, the court granted his request to represent
himself, kept appointed counsel as merely “standby” counsel, and confirmed that counsel no longer
represented Ford. Ford’s second sub-issue complains about counsel’s pre-arraignment assistance.
A. Brady and the surveillance videos
The prosecution violates Fourteenth Amendment due process when it suppresses
evidence favorable to the defendant that is material either to guilt–innocence or to punishment,
regardless of the prosecution’s good faith or bad faith. See Kyles v. Whitley, 514 U.S. 419, 432–
34 (1995); Brady v. Maryland, 373 U.S. 83, 87 (1963); Harm v. State, 183 S.W.3d 403, 406 (Tex.
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Crim. App. 2006). To show a Brady violation, a defendant must show all three of the following:
(1) the State suppressed evidence, (2) the suppressed evidence is favorable to the defendant, and
(3) the suppressed evidence is material. Harm, 183 S.W.3d at 406. Under Brady, “prosecutors
have a duty to learn of Brady evidence known to others acting on the state’s behalf in a particular
case.” Id. (citing Kyles, 514 U.S. at 437–38). But this duty arises only for evidence that is
“unknown to the defense.” See Kyles, 514 U.S. at 437. So if the defendant knows about the
Brady material and its content, the State cannot be said to have “suppressed” it. See Pena v. State,
353 S.W.3d 797, 810–11 (Tex. Crim. App. 2011); Havard v. State, 800 S.W.2d 195, 204–05 (Tex.
Crim. App. 1989) (defendant failed to make out Brady claim for statement that he had given to
sheriff because defendant “knew of both the existence and the content of his statement, as a matter
of simple logic”), withdrawn in part on other grounds on reh’g, 800 S.W.2d at 206 n.*, 213–18.
The prosecution “suppresses” evidence only if certain predicate conditions exist.
One such condition is that it or its agents possess the evidence. Harm, 183 S.W.3d at 406–07.
Because of this condition, the State “is not required to seek out exculpatory evidence independently
on appellant’s behalf, or furnish appellant with exculpatory or mitigating evidence that is fully
accessible to appellant from other sources.” Id. at 407. Thus, even when Child Protective Services
once had records that a defendant could have used to impeach a prosecution witness, the defendant
did not establish her Brady claim in part because she had “the CPS records before the state did”
and CPS was not “working with the prosecution or at its behest.” Id. at 405–08.
Ford does not suggest that the prosecution or its agents possessed any surveillance
video from the Austin gas station, Walmart, or combined Chicken Express and Stripes or that the
stores were ever working with the prosecution or at its behest. Indeed, he presents his first issue
based on a supposed “affirmative duty to seek out video evidence.” He relies on Kyles, but the
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duties addressed there attach only to evidence “unknown to the defense.” See 514 U.S. at 437.
Ford, however, knew about the videos before trial. See Pena, 353 S.W.3d at 810–11; Havard,
800 S.W.2d at 204–05. He also relies on cases in which the prosecution possessed Brady material.
See Arizona v. Youngblood, 488 U.S. 51, 52–53 (1988) (samples taken at hospital for police
sexual-assault kit and later analyzed by police criminologist); United States v. Bagley, 473 U.S. 667,
671 (1985) (written agreements between government and prosecution witnesses); California v.
Trombetta, 467 U.S. 479, 481–82 (1984) (breathalyzer samples taken by officers). But here,
nothing in the record suggests that the prosecution or its agents ever acquired the videos. Ford
has not pointed to any authority that required the prosecution to have acquired the videos;
instead, Brady disclosure requirements attach only once the prosecution or its agents possess the
material.1 See Harm, 183 S.W.3d at 406–07 (prosecution need not “seek out exculpatory evidence
independently on appellant’s behalf”). Ford thus has not shown a Brady violation.
B. Ineffective assistance and the surveillance videos
To succeed on an ineffective-assistance claim, the appellant must show both that
(1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.
Garza v. State, 213 S.W.3d 338, 347 & n.18 (Tex. Crim. App. 2007) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To show deficient performance, the appellant must prove
by a preponderance of the evidence that counsel’s representation fell below the standard of
professional norms. Id. at 347–48 & n.19 (citing Strickland, 466 U.S. at 688). To show prejudice,
the appellant must show a reasonable probability that but for counsel’s unprofessional errors, the
1
The American Bar Association Criminal Justice Standards that Ford quotes at length in
his reply brief recognize this limitation. The Standards that he quotes apply to “all information in
the possession of the prosecution or its agents.”
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result of the proceeding would have been different. Garza, 213 S.W.3d at 348 & n.20 (citing
Strickland, 466 U.S. at 694). To show prejudice from a purported failure to investigate the facts
of a case, the appellant must show that the results of the investigation not undertaken “reasonably
could have changed the result of th[e] case.” See Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim.
App. 2007); accord Stokes v. State, 298 S.W.3d 428, 432–33 (Tex. App.—Houston [14th Dist.]
2009, pet. ref’d). Absent either showing—deficient performance or prejudice—a reviewing court
must deny relief because it cannot conclude that the conviction resulted from a breakdown in the
adversarial process that made the result unreliable. See Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009); Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993). The
standards for ineffective assistance during the guilt–innocence and punishment phases are
generally the same. West v. State, 474 S.W.3d 785, 794 (Tex. App.—Houston [14th Dist.] 2014,
no pet.) (citing Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999)).
Appellate review of trial counsel’s representation is highly deferential and
presumes that counsel’s actions fell within the wide range of reasonable and professional
assistance. Garza, 213 S.W.3d at 348. Counsel’s performance is evaluated not in hindsight
but from counsel’s perspective at the time. See Strickland, 466 U.S. at 689; Ex parte Kunkle,
852 S.W.2d 499, 505 (Tex. Crim. App. 1993). If the reasons for counsel’s conduct do not appear
in the record and if there is at least the possibility that the conduct could have been grounded in
legitimate trial strategy, the reviewing court defers to counsel’s decisions and denies relief on an
ineffective-assistance claim on direct appeal. Garza, 213 S.W.3d at 348. Counsel usually should
be allowed to explain their actions; without such an opportunity, the reviewing court should not
find deficient performance unless the challenged conduct was so outrageous that no competent
attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
15
2005). Absent an evidentiary hearing, the ineffective-assistance burden is difficult to meet on
direct appeal: “Rarely will a reviewing court be provided the opportunity to make its determination
on direct appeal with a record capable of providing a fair evaluation of the merits of the claim
involving such a serious allegation.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999); Blevins v. State, 18 S.W.3d 266, 271–72 (Tex. App.—Austin 2000, no pet.).
Here, we assume that the videos would have shown everything that Ford suggests—
that two unknown men recruited him to leave the Austin gas station with them, that either of those
men or Smith or Smith-Brule organized the scheme to cash forged checks, and that Smith or
Smith-Brule and not Ford received the checks. We also assume that Ford did not make any
markings or alterations on the check that he cashed, save for indorsing the back. Even so, Ford
has not shown facts from which we could conclude that the surveillance videos reasonably could
have changed the result of the case in guilt–innocence. See Cooks, 240 S.W.3d at 912; Stokes,
298 S.W.3d at 432–33. Even if he did not concoct the forgery scheme or mark or alter the check
himself, he was still guilty of forgery because he gave the check to the teller to cash it, the check
was not authorized by the purported drawer, and he knew it was forged. Those actions constitute
forgery under the statute. See Tex. Penal Code § 32.21(a)(1)(B), (C), (2)(A), (b), (d); Johnson,
425 S.W.3d at 520; Palmer, 735 S.W.2d at 699. And even if someone else concocted the entire
scheme, Ford still collaborated in it, which supports his part in a combination engaging in
organized criminal activity. He took the forged check from Smith; cashed it at the bank that Smith
told him to; tried to conceal something alongside Smith-Brule during the chase; and rode with both
men with other forged checks, including several made out to Ford in large amounts and at least
some of which were from a cabinetry company, which was inconsistent with the oilfield-work
16
story that he told Det. Ablon. See Tex. Penal Code §§ 71.01(a), 71.02(a)(8). He thus has not
shown that the jury would have found him not guilty instead of guilty for either offense.
As for punishment, Ford pleaded “true” to the two enhancement paragraphs, which
alleged that he had previously committed felony assault on a public servant and felony possession
of methamphetamine, both in Texas. The State presented testimony from an investigator, who
testified about the two prior Texas convictions and about another from Virginia. In Virginia, Ford
was sentenced to 15 years’ confinement, probated, for abduction. While on parole from his Texas
sentence for possession of methamphetamine, Ford committed the charged forgery and engaging
in organized criminal activity. The State then rested its punishment case, and Ford declined to
put on any evidence of his own or offer any closing argument. In this context, Ford has not
shown that the surveillance videos would have changed the outcome of his sentences. See Cooks,
240 S.W.3d at 912; Stokes, 298 S.W.3d at 432–33. We thus overrule his first issue.
III. Ford’s contention about denied help with jury selection is without merit, and the one
about a denied continuance was not preserved for review.
In his second issue, Ford contends that his “constitutional right to effectiveness of
counsel was denied” because the trial court refused to let standby counsel “assist [Ford] with the
questions” during jury selection and because it had earlier denied a continuance. Ford’s arguments
on appeal are equivocal: at times he says that the trial court denied him a right to hybrid
representation, and at others he says that his request when voir dire began constituted a waiver of
his right to represent himself and thus a request for appointed counsel to take over the defense.
The history of Ford’s demands to represent himself here is instructive. Though
appointed an attorney, he sought to “waive counsel and represent [him]self,” offering as a reason
disagreements with appointed counsel about procedural strategy. At the arraignment, the trial
17
court admonished Ford that although he enjoyed the right to represent himself, doing so is
“almost always a terrible idea” and he likely lacked necessary legal training, to which Ford
responded that he had decades of experience as a paralegal. After the admonishments and at
Ford’s request, the court granted his motion to represent himself and kept the appointed attorney
on as “standby” counsel only. Then at every hearing between the arraignment and voir dire, the
trial court confirmed that Ford wanted to represent himself without counsel’s assistance and that
the appointed attorney was present only as “standby” counsel, often telling Ford that the appointed
attorney “does not represent” him. Ford proceeded with this understanding in place.
Just before voir dire, Ford signed a “Waiver of Right to Representation by Counsel,”
which says that he knew about his right to appointed counsel and that he “waive[d] that right and
request[ed] the Court to proceed with my case without an attorney being appointed.” Later that
morning, after the court sat and instructed the venire panel before the prosecutor’s voir dire, the
court asked the prosecutor and Ford to approach, and Ford said: “I’m not really prepared for the
voir dire. Can [appointed counsel] assist me with the questions?” The court refused.
If this request was for hybrid representation—for example, appointed counsel
would conduct some of the voir dire and then Ford the trial defense—Ford had no right for it to
be granted. There is no constitutional right to hybrid representation. See McKaskle v. Wiggins,
465 U.S. 168, 182–83 (1984); Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989);
Figueroa v. State, 250 S.W.3d 490, 514 & n.115 (Tex. App.—Austin 2008, pet. ref’d). A trial
court may permit hybrid representation in its discretion. Scarbrough, 777 S.W.2d at 92; Figueroa,
250 S.W.3d at 515. A trial court abuses that discretion only when its decision lies outside the “zone
of reasonable disagreement.” Figueroa, 250 S.W.3d at 515; Ganther v. State, 187 S.W.3d 641,
648 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
18
During its pre-voir dire instructions to the venire panel, the trial court explained
that Ford represented himself and that appointed counsel could only explain to Ford procedure and
evidentiary predicates while Ford would make all the decisions for his defense, leaving appointed
counsel “simply there in an advisory capacity.” Given these instructions, we cannot conclude that
the trial court abused its discretion by refusing a request for hybrid representation. Ganther,
187 S.W.3d at 648–49 (“[A]fter explaining hybrid representation was not allowed, the trial court
did not act outside the zone of reasonable disagreement by remaining consistent with the procedure
it had explained to the venire panel.”); see also Figueroa, 250 S.W.3d at 515 (hybrid representation
“has great potential for chaos” (quoting Ganther, 187 S.W.3d at 648)).
If instead Ford’s request was to withdraw his waiver of his right to counsel, so that
appointed counsel would take over the defense, such a withdrawal “may be found if it reasonably
appears to the court that defendant has abandoned his initial request to represent himself.”
Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). But the withdrawal may be
denied when granting it would obstruct orderly procedure or interfere with the fair administration
of justice. See Calamaco v. State, 462 S.W.3d 587, 592 (Tex. App.—Eastland 2015, pet. ref’d);
Medley v. State, 47 S.W.3d 17, 23 (Tex. App.—Amarillo 2000, pet. ref’d); see also United States
v. Taylor, 933 F.2d 307, 311 (5th Cir. 1991) (“A defendant is not entitled to choreograph special
appearances by counsel, or repeatedly to alternate his position on counsel in order to delay his
trial or otherwise obstruct the orderly administration of justice.” (internal citation and quotation
omitted) (quoting McKaskle, 465 U.S. at 183)); Culverhouse v. State, 755 S.W.2d 856, 861 (Tex.
Crim. App. 1988) (“A request for change of counsel cannot be made . . . so as to obstruct orderly
procedure in the courts or to interfere with the fair administration of justice. A defendant may not
use his right to counsel to manipulate the court or to delay his trial.” (internal citation omitted)).
19
We therefore review the trial court’s denial of Ford’s attempted withdrawal as a
decision about the “control of the business of the [trial] court,” which is reviewed for an abuse of
discretion. Medley, 47 S.W.3d at 23–24 (quoting and citing Marquez v. State, 921 S.W.2d 217,
223 (Tex. Crim. App. 1996)). To prevail, Ford must show facts entitling him to relief. Id. at 24
(citing Marquez, 921 S.W.2d at 223). If the trial court had before it a conflicting record about
whether to grant or deny the withdrawal, then it did not abuse its discretion by denying the
withdrawal. See id. (citing Marquez, 921 S.W.2d at 223). Ford must show that granting the
withdrawal would not have (1) interfered with the orderly administration of the business of the
court, (2) resulted in unnecessary delay or inconvenience to witnesses, or (3) prejudiced the State.
See Calamaco, 462 S.W.3d at 592–93; Medley, 47 S.W.3d at 24.
Here, the trial court did not abuse its discretion by denying Ford’s attempted
withdrawal of his waiver of his right to counsel because the court had before it a mixed record
about whether Ford was abandoning his right to represent himself, see Funderburg, 717 S.W.2d
at 642, and under the three Medley requirements. Ford’s request was only that standby counsel
“assist me with the questions” during voir dire—not that he take over the entire defense. Given
Ford’s earlier repeated acquiescence after the court began every hearing, and even the trial itself,
by confirming that Ford was voluntarily representing himself, the trial court could have reasonably
concluded from the record that Ford’s voir dire request was not an abandonment of
self-representation. See Funderburg, 717 S.W.2d at 642. Similarly, Ford has not shown that his
attempted withdrawal would not have (1) interfered with the orderly administration of the business
of the court or (2) resulted in unnecessary delay. See Medley, 47 S.W.3d at 24. He made his
request in the moments between the court’s pre-voir dire instructions to the already-seated venire
panel and the start of the prosecutor’s voir dire. Before that point, the record shows that standby
20
counsel had been operating for over four and a half months under instructions from the trial court
that standby counsel was “not going to proactively do anything” and could do no more than “assist”
Ford. These features of the record allowed the trial court reasonably to conclude that Ford failed
to meet the first two of Medley’s requirements. Thus, under both Funderburg and Medley, we
conclude that the trial court did not abuse its discretion by denying Ford’s attempted withdrawal
of his waiver of his right to counsel (if that was his intention).
As for the continuance, 17 days before trial, Ford, the prosecutor, and the trial court
were discussing subpoenas for Smith and Smith-Brule. During that discussion, Ford said,
I’m going to need more time, Your Honor, because I’m in the process of getting
with an attorney as a pro bono in this case because I am not allowed to get access
to a law library or anything like that to be able to represent myself adequately, so
I’m asking for a continuance in that case.
The court denied the continuance. Because Ford’s request for a continuance was oral and unsworn,
he has not preserved this issue for appellate review. Blackshear v. State, 385 S.W.3d 589, 591
(Tex. Crim. App. 2012); see Tex. Code Crim. Proc. arts. 29.03, 29.08.
To sum up, we reject or cannot review Ford’s arguments about the trial court’s
actions that he thinks infringed his constitutional right to counsel.2 We overrule his second issue.
2
His appellate briefs also make nonspecific references to “Faretta violations.” If he is
complaining about actions by the trial court that we have not addressed, his reliance on Faretta is
misplaced. There, the Court reviewed a procedure that forced on an unwilling defendant appointed
counsel. See Faretta v. California, 422 U.S. 806, 807, 819, 832, 835–36 (1975). No such forcing
exists here: when Ford rejected assistance of counsel, the trial court let him represent himself.
21
IV. The trial court did not abuse its discretion by allowing the prosecutor further
punishment argument after Ford refused to give any argument.
In his third issue, Ford challenges the order of argument that the trial court used at
the end of the punishment phase. The prosecutor gave a closing argument and reserved time for
rebuttal, but Ford refused to give any closing argument, so he contends that the court should not
have allowed the prosecutor to argue any further.
“The order of argument may be regulated by the presiding judge; but the State’s
counsel shall have the right to make the concluding address to the jury.” Tex. Code Crim. Proc.
art. 36.07. This statute “gives broad discretion to the trial court regarding the general order of
arguments with the caveat that the State” gets the last argument. Dang v. State, 154 S.W.3d 616,
619–20 (Tex. Crim. App. 2005). We thus review a trial court’s decision about the order and format
of closing arguments for an abuse of discretion. See id.; Threadgill v. State, 146 S.W.3d 654, 673
(Tex. Crim. App. 2004). Specifically, “[t]he question of whether, when the defendant’s counsel
declines to address the jury, the court shall permit more than one argument to be made by state’s
counsel, is one of discretion in the trial court.” James v. State, 563 S.W.2d 599, 603 (Tex. Crim.
App. [Panel Op.] 1978) (quoting Walker v. State, 141 S.W. 243, 244 (Tex. Crim. App. 1911)).
James involved an issue similar to Ford’s. The prosecutor there ended punishment
argument without “ask[ing] for a specific sentence,” and when the “appellant declined argument
and objected to any further argument by the prosecutor,” the trial court sustained the objection. Id.Outside the jury’s presence, the prosecutor asked to reopen closing argument, and the trial court
again sustained the defendant’s objection. Id. But then within the jury’s hearing, the prosecutor
asked to reopen closing argument “so that [the State] might ask the jury for a life sentence.” Id.The defendant objected again, but the trial court overruled this objection and refused to grant a
22
mistrial or instruct the jury about the life-sentence request made within their hearing. Id. The
Court of Criminal Appeals, though disapproving “of the prosecutor’s improper disregard of” the
sustained objection, concluded that the trial court “would not have abused its discretion if he had
permitted the prosecutor to argue to the jury after the appellant declined to argue.” Id.That reasoning controls this case. Before arguing, the prosecutor asked to split her
time, and the trial court said it would let her. She discussed the charge and punishment ranges and
ended with: “I’m going to save the rest of my time to come back and speak with y’all in a second.”
She, like the James prosecutor, had not yet asked for a sentence. When the trial court let her argue
again, over Ford’s objection, she asked the jury to “[s]end a message”—“a very strong” one—with
a sentence that would speak “to people that are thinking about coming here and preying on
your banks and your small[-]business owners.” We conclude that the trial court did not abuse
its discretion by “permit[ing] the prosecutor to argue to the jury after the appellant declined to”
and without yet asking for a specific sentence. See id.; accord Martin v. State, 623 S.W.2d 391,
396–97 (Tex. Crim. App. [Panel Op.] 1981). We overrule this issue.
V. Ford forfeited appellate review of the comments from punishment argument that he
argues were objectionable.
In his fourth issue, Ford contends that portions of the punishment argument were
“improper and inflammatory,” denying him Fourteenth Amendment due process. As the State
points out, and Ford acknowledges, he did not object to any of the comments that he now says
were objectionable. A defendant forfeits the right to complain on appeal about jury argument—
even argument so prejudicial that an instruction to disregard could not have cured it—when the
defendant fails to object. Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002);
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (citing Marin v. State, 851 S.W.2d 275,
23
279 (Tex. Crim. App. 1993)); accord Tex. R. App. P. 33.1(a). “[E]ven constitutional errors,” like
denial of due process, “may be waived by failure to object at trial.” Broxton v. State, 909 S.W.2d
912, 918 (Tex. Crim. App. 1995). Because Ford did not object, he forfeited this issue.
VI. Ford’s disagreement with Salinas is unavailing because it is still binding authority.
In his sixth issue, Ford “requests this Court to revisit [State ex. rel Holmes v.
Salinas, 784 S.W.2d 421 (Tex. Crim. App. 1990),] which effectively eliminates the right to an
examining trial afforded by Article 16.01, Texas Code of Criminal Procedure.” In Salinas, the
Court of Criminal Appeals explained the interplay of Article 16.01 examining trials and indictments
returned by a grand jury. Id. at 424–25. A grand-jury indictment extinguishes the need for any
examining trial because examining trials put the State to its burden to prove probable cause to
accuse a defendant of an offense. Id. Because an indictment returned by a grand jury supplies
the same determination that probable cause exists that an examining trial would, “the reason or
justification for the [examining trial] ceases at the time the grand jury returns its own probable
cause determination via the indictment,” “even in the case where the [examining trial] is pending
or is due to resume at a later date.” Id. at 425. The Court of Criminal Appeals has not overruled
Salinas and has cited it with approval most recently in 2003. See Galloway v. State, No. 73766,
2003 WL 1712559, at *4 (Tex. Crim. App. Jan. 29, 2003) (op., not designated for publication).
We are thus bound by it and overrule Ford’s sixth issue.
VII. Ford’s disagreement with Ellis is unavailing because it is still binding authority.
In his seventh issue, Ford asks us to “revisit” Ellis v. State, 683 S.W.2d 379 (Tex.
Crim. App. 1984), which he contends prevented him from calling Smith and Smith-Brule as
witnesses over their insistence that they would assert their Fifth Amendment rights to refuse to
24
answer every question that they might be asked. As the State notes, “[w]hatever the merits or
demerits of Ellis, [Ford] alleges no error by the trial court or harm resulting from any erroneous
ruling.” Because Smith and Smith-Brule, on voir dire outside the jury’s presence, said that they
would refuse to answer every question and instead assert their Fifth Amendment rights, Ellis
forbade the trial court from letting Ford call them before the jury. See id. at 382–83. The Court
of Criminal Appeals has not overruled Ellis, citing it with approval as recently as 2003. See Son Vu
Khai Tran v. State, No. 74040, 2003 WL 1799013, at *5 n.5 (Tex. Crim. App. Apr. 2, 2003) (op.,
not designated for publication). We are thus bound by it also and overrule Ford’s seventh issue.
VIII. Ford has not carried his burden to show that one or two jurors’ seeing him in
handcuffs merited a mistrial.
In his eighth issue, Ford contends that he is entitled to a new trial because one
or two jurors saw him in handcuffs on a lunch break. The facts underlying this issue show an
inadvertent, momentary exposure to jurors instead of a continuous one. Compare Clark v. State,
717 S.W.2d 910, 918–19 (Tex. Crim. App. 1986) (overruling appellate issue about “inadvertent
and fortuitous” exposure of handcuffed defendant), with Wiseman v. State, 223 S.W.3d 45, 47, 52
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (reversing and remanding for new trial when
defendant was “shackled for the duration of his trial”). After Ford and the bailiff brought the
exposure to the trial court’s attention and explained what happened, the court summarized: “[Ford]
was escorted to the car to go to eat lunch because there’s no—there’s no food facilities in
this courthouse and that, according to Mr. Ford, he believes possibly two jurors observed him
in handcuffs being escorted to the car.” The court then asked the bailiff if the exposure was
intentional, and the bailiff said it “was completely unintentional.” Ford declined to question the
bailiff, put on any other evidence about the issue, or respond to the trial court’s summary.
25
When a similar exposure arose in Clark, the Court of Criminal Appeals concluded
that the appellant had not carried his burden to show evidence that the inadvertent exposure
influenced or affected any juror. 717 S.W.2d at 919. So too here because Ford says only that
“[a]rguably this could have prejudice[d]” him with any juror and does not offer proof that any
juror discussed him in handcuffs or that the exposure influenced or affected any juror. Although
“all efforts should be maintained to see that” no juror sees the defendant in handcuffs, a mistrial
was not required. See id. at 918–19. We overrule Ford’s eighth issue.
IX. There is no “cumulative error” warranting a new trial.
In his ninth issue, Ford requests “cumulative error” review and reversal and remand
as a result. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is
conceivable that a number of errors may be found harmful in their cumulative effect.”). But the
only error or abuse of discretion that we have determined might have occurred based on his
appellate issues is the one or two jurors’ seeing him in handcuffs. Otherwise, we have not
overruled any other issue by a harm analysis, holding instead that none of Ford’s other issues
present any error or abuse of discretion or are reviewable, as the case may be. Thus, because the
handcuffs exposure did not merit a mistrial, we overrule Ford’s ninth issue. See id. (“[W]e are
aware of no authority holding that non-errors may in their cumulative effect cause error.”).
26
CONCLUSION
We affirm the trial court’s judgment. We deny all pending motions as moot.3
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Baker and Kelly
Affirmed
Filed: August 4, 2021
Do Not Publish
3
Ford has also filed several letters in this Court, which we construe as attempted
supplemental appellate briefing. Because Ford is represented by appellate counsel, who filed an
appellant’s brief and a reply brief on Ford’s behalf, we do not consider any of the briefing in Ford’s
several letters because he is not entitled to hybrid representation, or to represent himself, on
appeal. See Marshall v. State, 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006); Scheanette v.
State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004).
27