Rudolph Ignatius Baker v. the State of Texas

Affirmed and Memorandum Opinion filed January 25, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00042-CR

RUDOLPH IGNATIUS BAKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1641222

MEMORANDUM OPINION

In this appeal from a conviction for aggravated assault, appellant argues in a
single issue that the trial court erred by not allowing him to withdraw his request for
self-representation. The State responds that appellant never made such a request, and
that rather, appellant had requested different appointed counsel, to which he was not
entitled. We agree with the State.

The record establishes that appellant was appointed two separate lawyers. The
first lawyer, Mary Conn, moved to withdraw from the case, citing irreconcilable
differences. The judge (Hon. Lori Chambers Gray) granted that motion, and then
appointed Thomas Martin as substitute counsel.

Early into Martin’s representation, appellant informed the judge that he
wished to proceed pro se. The judge conducted a Faretta hearing, during which
appellant’s complaints largely focused on Conn, the first lawyer who was no longer
representing him. After the judge emphasized several times that Conn had
withdrawn from the case and that “we’re not walking down a path that doesn’t exist
anymore,” appellant shifted his focus to Martin, with whom he said he was
comfortable “as of now, as of this moment.” The hearing ended with Martin
remaining on appellant’s case.

Two years later (following a moratorium for the COVID-19 pandemic),
appellant moved to represent himself again, and a different judge (Hon. Marc
Brown) conducted another Faretta hearing. Appellant explained that he was
dissatisfied with Martin for a number of reasons. He believed, for instance, that
Martin either had not reviewed certain pro se motions or he had reviewed them but
refused to take any action on them. He believed that Martin was not communicating
with him effectively, or that Martin was ignoring certain text messages. He also
believed that Martin was more inclined to advocate for the prosecution than for the
defense.

The judge warned appellant of the dangers and disadvantages of self-
representation. The judge also specifically said that the trial date would not be
postponed if appellant’s request were granted, and that, unlike the practice in some
other courts, standby counsel would not be permitted. Appellant responded, “I would
prefer to have another standby,” but the judge advised him again that standby
counsel would not be allowed whatsoever.

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Appellant asserted that he felt “forced” to represent himself, but the judge
again emphasized that appellant had the option of proceeding with Martin as court-
appointed counsel. The judge also stated that appellant had the right to represent
himself, but the judge cautioned that if appellant elected that right, “there will be no
one else representing you.” Appellant asserted that he understood. The judge then
granted his request for self-representation and allowed Martin to withdraw from the
case.

Three days after that Faretta hearing, appellant appeared before another judge
(Hon. Denise Bradley). This appearance was on the emergency response docket, and
before any substantive matters were addressed, the judge sought to confirm that
appellant had recently desired to represent himself. Appellant responded, “Not
exactly,” but rather than continue with any points about the status or history of his
representation, appellant began to discuss certain facts concerning the complainant
in the charged offense. The judge interrupted appellant, stating, “What I don’t want
to do on the record in open court is discuss the facts of your case.” The judge then
asked again, “So is it your desire to represent yourself?” That led to the following
exchange:

APPELLANT: Your Honor—
THE COURT: That’s a simple yes-or-no question.
APPELLANT: If I may—with all due respect to the Court and to
Your Honor, if I’m—what I’m speaking on is not
factual for the case in terms of—
THE COURT: The only question that I have for you while we’re
on the record in this matter is whether or not you
would—you still desire to represent yourself. “Yes”
or “no”?
APPELLANT: I will desire, Your Honor—as I said, if you would
please, please, Your Honor, just allow me even just
one minute. I will not discuss any facts—

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THE COURT: Do not—here’s what I don’t want you to do. Do not
mistake this for a conversation. I am not here to
have a conversation with you. I am here to
administer justice in this courtroom and to proceed
over your—or preside over your trial if that’s what
we’re going to do. Understood?
APPELLANT: Yes, to a degree, Your Honor, I understand that.
THE COURT: That concludes this hearing. The case is set for trial.
Judge Brown did make a finding that you were
competent to represent yourself. That’s how we will
proceed.
Appellant then began to discuss how he was concerned that his investigator
was out of the country. The hearing ended with the judge simply advising appellant
to draft a motion for continuance.

Five days later, appellant filed a motion for continuance, and appeared before
yet another judge (Hon. Denise Collins). This hearing was very brief. The judge
stated:

It says here you admitted to being unqualified to represent yourself. I
find that very difficult to believe that the Court would allow you to do
that without standby counsel if you said, “I’m not qualified to represent
myself.” Okay. I’m going to stop you right there.
The hearing concluded with an off-the-record discussion.

On the very next day, appellant reappeared before the same judge who had
originally granted his request for self-representation (Hon. Marc Brown). The
hearing began with a discussion about a motion for continuance, which the judge
granted. The judge then returned to the matter of appellant’s self-representation:

THE COURT: Now, I want to make sure I understand that you still
wish to proceed to represent yourself in this matter.

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APPELLANT: On—under one condition, Your Honor. If in
between now and the time when—the continuance
I can find another attorney—
THE COURT: You can certainly hire a lawyer to represent you.
APPELLANT: Yes. In between now and—if the Court grants it,
whatever time that is, I could get another attorney,
then would I be allowed—
THE COURT: You are free to hire whomever you want.
APPELLANT: All right. Thank you, Your Honor.

The trial date occurred two months later. The record began with the judge
(Hon. Reagan Clark) confirming that appellant had requested self-representation:

THE COURT: All right. It is my understanding that you requested
to be your own counsel to represent yourself; is that
right?
APPELLANT: No, Your Honor. What happened was I was pretty
much forced to do it. So I have to do it.
THE COURT: Well, no one is forcing you to represent yourself. It
is my understanding that one of the other judges
conducted what we call a Faretta hearing to make a
determination as to whether or not you could be
allowed to represent yourself in this case; is that
right, or no?
APPELLANT: A hearing was held, Your Honor, but if you would
give me a moment to speak on what happened, then
I could make it clear as to what happened and why
I believe that I am being forced and compelled to
defend myself.
THE COURT: Well, I don’t want to hear anything about the facts
of the case. The only thing that I want to know at
this point is whether or not you are going to
represent yourself. As I understand it, the Judge said
it was okay for you to represent yourself.
APPELLANT: Well, Your Honor, it is nothing about the facts of
the case.

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THE COURT: Just tell me yes or no, did the Judge say it was okay
for you to represent yourself?
APPELLANT: Yes, he did, Your Honor.
THE COURT: Okay. So that’s all in the past, right? We have got a
jury that’s coming over here this morning ready to
hear your case. You understand that, don’t you?
APPELLANT: Yes, but as I said, I will state it on the record again
that I do believe that I am being forced and
compelled. I have no choice. I am ill-equipped and
ill-qualified to represent myself. And I am not
allowed to speak. I have never been allowed to
speak, Your Honor. Each time I tried to speak and
make clear what’s going on in this case and to
defend myself, I am being told I can’t speak.
THE COURT: Well, I am going to let you talk, but I am not going
to let you talk to me a lot about the facts of the case.
The only thing I want to know at this point is
whether or not you are going to represent yourself
in this case. The Judge has already decided it and
had a hearing on it and the Judge has made a
decision that you are competent to represent
yourself and that you are requesting to represent
yourself.
APPELLANT: I did not request it, Your Honor. I never requested
it.
THE COURT: See, I didn’t hear all of this, so I don’t have a clue
about what is going on. The record will be clear as
to what’s happened in this case.
APPELLANT: Yes, sir.
THE COURT: All I know is a little bit that I have been told about
it. And what I have been told about it is the Judge
has allowed you, after a hearing, to represent
yourself in this case. Is that yes or no? Without
regard to saying you were forced to and all that, just
yes or no?
APPELLANT: Yes, Your Honor.

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THE COURT: All right. That’s what I needed to know.

The discussion briefly shifted to the existence of a plea offer, and then it
returned to the matter of appellant’s self-representation, with additional input from
the prosecution.

THE COURT: And could you enlighten me?
PROSECUTOR: For the purpose of—
THE COURT: At least tell me what is going on in the past with
regard to the Faretta hearing and the Judge making
a decision for the Defendant to represent himself.
PROSECUTOR: Yes, Your Honor. And so previously, Judge, the
Defendant has been—has had two appointed
attorneys, a Ms. Mary Conn at the outset of the case
and then later on a Mr. Tom Martin. As recently as
October, the Defendant was represented by Mr.
Martin. We appeared in court on 10/25, I believe,
and Mr. Martin was representing him. At that point
is where the Defendant stated that he had some
issues with Mr. Martin’s representation, stated that
he believed that he was colluding with the State and
assisting the State in withholding evidence against
him, and he asked that Mr. Martin be taken off of
his case. At that point, Judge, I believe it was Judge
Marc Brown stated that he would not appoint
another attorney to him.
THE COURT: He would not appoint another attorney to him?
PROSECUTOR: Correct.
THE COURT: Did he ask for another court-appointed lawyer at
that time? Did you ask for court-appointed at the
time? Did you ask for court-appointed attorney back
in October when Judge Brown heard this motion?
APPELLANT: I’ve asked for an attorney since January 10th of
2022, Your Honor. And as I said repeatedly, the
Prosecution has been allowed to speak freely. And
each time I tried to express myself and defend

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myself, I was given a limited amount of time. And I
am asking you—
THE COURT: Well, I think—I hate to keep interrupting you, sir,
but I think you want to talk to me about the facts of
your case and that’s not why I am here.
APPELLANT: No, I am trying to speak on what you just asked.
THE COURT: Okay. Well, just tell me without going into great
detail, did you ask, back in October, for the Judge
to appoint you another lawyer since he allowed—
was it Miss Conn at the time, to withdraw?
PROSECUTOR: It was Mr. Martin, Judge.
THE COURT: Oh, Mr. Martin. Did you ask for court-appointed
lawyer at that time?
APPELLANT: Since January 10th—
THE COURT: No, did you ask in October when the Judge—
APPELLANT: Yes. Yes, sir.
***
THE COURT: So in October of 2022, when Judge Brown allowed
Mr. Martin to withdraw from the case—and is he
the one that heard the Faretta hearing as well?
PROSECUTOR: Yes, Your Honor.
THE COURT: So he went forward with the Faretta hearing, which
tells me that you wanted to represent yourself;
because, he wouldn’t have conducted that hearing
on that issue unless you stated that you wanted to
represent yourself. Is that—did you tell him you
wanted to represent yourself?
APPELLANT: I never tell him that, Your Honor.
THE COURT: Did you ask for another court-appointed lawyer to
replace Mr. Martin?
APPELLANT: Several times, Your Honor, on that day and
previously. Also, Mr. Martin, himself, on several
occasions, requested to be removed because of
disagreement.

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THE COURT: Well, I understand Mr. Martin is out of the case.
That is not the issue; but, I am just wondering, that
was October, here it is January the 10th [of 2023],
and nothing has been done about getting you
another lawyer. Which tells me you have not
requested to be appointed another counsel and that
you wanted to represent yourself.
APPELLANT: At each court appearance and several times on the
record in front of several judges I have stated
consistently that I am ill-qualified and ill-equipped
to represent myself. And since January 10th of
2022, I have repeatedly, each time I have come to
court, on the record or without it being on the
record, requested that I be appointed another
attorney and tried my best to explain the reason
why. And as I said, Your Honor, I am never allowed
to speak.
THE COURT: I am letting you talk. Am I not letting you talk? Am
I not letting you speak? Tell me.
APPELLANT: Well, Your Honor, you have limited my ability to
speak.
THE COURT: But you’re talking to me about the facts of the case
and that is not what I am concerned about right now.
APPELLANT: I was not speaking about the—Your Honor, how do
you know what I am going to speak on, when I am
not allowed to at least attempt to speak on it?
THE COURT: Because I can tell where you are going with all of
this. You are going with all—trying to get into the
facts of this case and I am not concerned about that
now. Let me just say this about what you said about
not being equipped to represent yourself. That
motion that Judge Brown heard, he made a finding
that you were qualified to represent yourself. That’s
required in a Faretta motion. The Judge has to make
that decision that it’s okay for you to represent
yourself, that you have the wherewithal and your
ability to do that. So I am not going to change that,
okay?
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PROSECUTOR: Sorry to interrupt, Judge, but—however, I believe
one reason that Judge Brown did not appoint new
counsel is because this case has been on the trial
docket since January 10th of 2022 and Judge
Brown’s stance on the issue was that it [was] either
going to be Mr. Martin who was going to try the
case or it was going to be the Defendant. And
however—the Defendant, whenever he asked if he
was going to have standby counsel, Judge Brown
said that it was going to be Mr. Martin if he decided
to appoint him standby counsel. At that point, the
Defendant stated he did not want Mr. Martin at all
as standby counsel or to have any part of the case.
And so that’s why Judge Brown did not appoint
standby counsel for him.
THE COURT: So since this case has been filed, Mr. Baker, you
have had two court-appointed lawyers, correct?
APPELLANT: Yes, Your Honor.
THE COURT: And you did not want either one of them, right?
APPELLANT: We had differences, Your Honor.
THE COURT: You didn’t want them to represent you regardless of
the reason—
APPELLANT: Yes, Your Honor.
THE COURT: —you did not want either of those lawyers to
represent you?
APPELLANT: Yes, Your Honor.
THE COURT: We are going to go forward with you representing
yourself.

A defendant can assert his right to self-representation and then subsequently
withdraw it. See Tex. Code Crim. Proc. art. 1.051(h). Magic words are not required
to withdraw the right; rather, the record must reasonably appear to the trial court that
the defendant has abandoned his initial request to proceed pro se. See Funderburg v.
State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986).

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Appellant claims that he withdrew his right to self-representation on three
occasions. We discuss each of these in turn.

For the first occasion, appellant asserts that he “unequivocally” advised Judge
Collins that he did not want to represent himself. Appellant supports this assertion
with a citation to a hearing, but appellant did not actually discuss the issue of his
representation with Judge Collins during that hearing. Rather, Judge Collins recited
from the written motion for continuance that appellant claimed to be unqualified to
represent himself. And Judge Collins was expressly skeptical of that claim.

Appellant’s written motion for continuance appears in our record, and in
material part, appellant wrote as follows:

Both Defendant and Mr. Martin appealed to the Court for new [counsel]
to be assigned to the case. Each time such request was denied. With no
other choice the Defendant requested a [Faretta] Hearing. On October
25th the Court ruled that the Defendant must either keep Mr. Martin as
counsel or represent himself. Although Defendant admit to being
unqualified and ill equipped to represent himself, Defendant was forced
to choose the latter.

This was plainly a recitation of past events. Nothing in this written motion can
be construed as an unequivocal request to withdraw appellant’s right of self-
representation.

For the second occasion, appellant asserts that he “asked again for an attorney
from Judge Brown in a hearing after the initial Faretta hearing.” But no such request
appears in the record. Rather, appellant asked if he would be allowed to have another
attorney if he were to “find” one, and Judge Brown responded affirmatively,
provided that the attorney were hired, not appointed.

For the third occasion, appellant asserts that “he unequivocally told Judge
Clark he wanted an appointed attorney.” This assertion is slightly more accurate than

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the other two, but appellant omits a critical detail. He stated on the record that he
requested the appointment of “another attorney.”

A criminal defendant has the right to hire any attorney of his choice, or to have
the appointment of counsel if he cannot afford an attorney, but he has no right to
appointed counsel of his own choosing. See United States v. Gonzalez-Lopez, 548
U.S. 140, 151 (2006) (“The right to counsel of choice does not extend to defendants
who require counsel to be appointed for them.”); Ibarra v. State, 456 S.W.3d 349,
354 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“Appellant had no right to
be represented by a court-appointed lawyer of his choosing.”). Thus, insofar as
appellant requested the appointment of a different attorney, his request was not valid.

For all of the foregoing reasons, appellant has not shown that he requested the
reappointment of counsel, or that the trial court erred by not allowing him to
withdraw his right of self-representation.

The trial court’s judgment is affirmed.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).

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