                           NUMBER
                        13-12-00554-CR
                        13-12-00555-CR
                        13-12-00556-CR

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI – EDINBURG

RICKIE L. MOORE,                                       Appellant,


                               v.


THE STATE OF TEXAS,                                    Appellee.


             On appeal from the 24th District Court
                  of Jackson County, Texas.


                   MEMORANDUM OPINION
       Before Justices Rodriguez, Benavides, and Longoria
           Memorandum Opinion by Justice Longoria
       By two issues, appellant, Rickie L. Moore, appeals his convictions for indecency

with a child by sexual contact, sexual assault of a child, and aggravated sexual assault

of a child. We affirm.

                            I. RIGHT TO SELF-REPRESENTATION

       In his first issue, appellant contends that the trial court erred in denying his

request to represent himself at trial.

A. Applicable Law

       “Under the Sixth Amendment, an individual may choose to represent himself so

long as he makes the decision to do so intelligently, knowingly, and voluntarily.”

Degroot v. State, 24 S.W.3d 456, 457 (Tex. App.—Corpus Christi 2000, no pet.) (citing

Godinez v. Moran, 509 U.S. 389, 400–01 (1993)). “This right is also protected by

statute and by the Texas Constitution.” Id. (citing TEX. CODE CRIM. PROC. ANN. art.

1.051(f); TEX. CONST. art. 1, § 10).     “There are two prerequisites that need to be

addressed in order to determine whether this right has attached.” Id. “First, this right

does not attach until a defendant clearly and unequivocally asserts it.” Id. (citing Faretta

v. California, 422 U.S. 806, 835–36 (1975); Scarbrough v. State, 777 S.W.2d 83, 92

(Tex. Crim. App. 1989); Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App.

1986)).   “Secondly, the Sixth Amendment right to self-representation may not be

exercised simply to delay the orderly procedure of the courts or to interfere with the fair

administration of justice.” Id. (citing Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim.

App. 1977); Parker v. State, 545 S.W.2d 151, 156 (Tex. Crim. App. 1977)).




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B. Standard of Review

       “We review the denial of a defendant’s request for self-representation for an

abuse of discretion.” Alford v. State, 367 S.W.3d 855, 861 (Tex. App.—Houston [14th

Dist.] 2012, pet. ref’d).

C. Proceedings

       On the day of trial, counsel for appellant informed the trial court of the following:

       Your Honor, we’re here outside the jury’s presence during the qualification
       process. My client handed over some documents to Mr. Weiser. Mr.
       Weiser went on to file them on his behalf and I have copies here. He filed
       them with Ms. Mathis. He has filed his own motion to remove [attorneys]
       Bill White . . . [and] Keith Weiser from said causes and if I understand
       correctly from reading this, he wishes to represent himself and he’s also
       asking, I think, for some sort of assistant.

       I don’t know that necessarily it’s an attorney, but some sort of assistant to
       help him with that in his self-representation. He has also filed – and these
       are handwritten – a motion for change of venue.

Later in the day, immediately before the jury was empanelled, but without holding a

hearing, the trial court made the following announcement:

       The Defendant has filed pro se a motion to transfer venue and a motion to
       dismiss his attorneys and, based on the history of this case and the prior
       proceedings that we have undergone in getting this case ready for trial,
       including the appointment of Mr. Weiser, I am making a finding that these
       two motions are brought for the purpose of delay and I will take no action
       on them at this time.

D. Discussion

       Appellant contends that the trial court was required to conduct a Faretta hearing

on his request for self-representation.      See Faretta, 422 U.S. at 806.         The State

maintains that the trial court was not required to conduct a Faretta hearing to find that

the motion was brought for the purpose of causing delay. We agree with the State.




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      Even when a defendant has properly asserted his right to self-representation, the

trial court has discretion to deny the request if it is made “to disrupt or delay the

proceedings.” Ex parte Winton, 837 S.W.2d 134, 136 (Tex. Crim. App. 1992); see also

Steele v. State, No. 03-06-00669-CR, 2007 Tex. App. LEXIS 5954, at *4 (Tex. App.—

Austin July 26, 2007, no pet.) (mem. op., not designated for publication) (“The

defendant’s assertion of his right to self-representation may be denied if the district

court makes a determination that it is being asserted for the purpose of disruption or

delay of the proceedings.”). “In deciding whether a timely request was made for the

purpose of delay, the court must examine the events preceding the request to

determine if they are consistent with a good faith assertion of the Faretta right and

whether the defendant could reasonably be expected to have made the request at an

earlier time.” United States v. Smith, 780 F.2d 810, 821 (9th Cir. 1985). This is a

different inquiry than that undertaken in a Faretta hearing in which the trial court must

admonish the defendant about the dangers and disadvantages of self-representation

and make an assessment of the defendant’s “knowing exercise of the right to defend

himself.” Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984) (citing

Faretta, 422 U.S. at 836).

      Although the trial court is required to conduct a Faretta hearing to create a record

that establishes a knowing and intelligent waiver of the right to counsel, we have found

no precedent requiring the trial court to conduct a hearing to determine if the request is

made for the purpose of delay. Appellant cites an unpublished case from the Tyler

Court of Appeals in support of his position. See Johnson v. State, No. 12-02-00165-CR,

2003 Tex. App. LEXIS 4638 (Tex. App.—Tyler May 30, 2003, no pet.) (not designated



                                            4
for publication). There, the court of appeals stated that “[i]t is axiomatic that if a court

does not conduct a hearing, it cannot determine if the request was for purposes of

delay, nor can it make a record which would establish that appellant knows what he is

doing and his choice is made with eyes open.” Id. at *8. We have carefully reviewed

the decision of the Tyler Court of Appeal, and for the reasons set forth below, we

decline to follow its statement of the law in this regard.

       First, the statement is non-binding dicta because unlike the trial court in this

case, the trial court in Johnson did not make a finding that the request was made to

disrupt or delay the proceedings. See id. at *6. In Johnson, the trial court said it was

unwilling to delay the trial in order to conduct a Faretta hearing:

       Well, this comes a bit late. The jury has already been qualified. The
       panel is being seated at this time. I am not inclined to delay the trial while
       I conduct a Faretta vs. California hearing. And I may consider that after
       the voir dire, but at the present I’m not—I am not willing to delay the trial
       long enough to conduct that kind of a hearing. So you are going to voir
       dire the jury and then we will see where we are.

Id. In Johnson, the trial court found that conducting a Faretta hearing would cause a

delay in the trial, but the court did not find that the defendant had made the request for

self-representation for the purpose of delay, as the trial court did in the case at bar. See

id.

       Second, as set forth above, the issue in Johnson was whether the trial court

could refuse to hold a Faretta hearing simply because doing so would cause delay,

whereas the issue in this case is whether the trial court was required to hold an

evidentiary hearing to determine that the request for self-representation was made for

the purpose of delay.      The issue in Johnson is well-settled because “although an

exercise of the right of self-representation may cause some inconvenience or even

                                              5
disruption in the trial proceedings, so long as it is not a calculated obstruction, this delay

cannot deprive the accused of the right once properly asserted.” Birdwell v. State, 10

S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). In Johnson, the trial

court denied the request merely because it would cause delay, see Johnson, 2003 Tex.

App. LEXIS 4638, at *6, which was error. See Birdwell, 10 S.W.3d at 77. In this case,

in contrast, the trial court denied the request because it found that appellant had made

the request for self-representation for the purpose of delay, which was not error. See id.

       Third, the Johnson court failed to distinguish between a hearing to create a

record that establishes a knowing and intelligent waiver of the right to counsel and a

hearing to determine if the request for self-representation is made to disrupt or delay the

proceedings. See Johnson, 2003 Tex. App. LEXIS 4638, at *8. The former is required

by Faretta, while the latter is not. See Faretta, 422 U.S. at 806.

       Fourth, although the Johnson court stated that it is “axiomatic” that the trial court

must conduct a hearing to determine if the request was for the purpose of delay, it cited

no authority in support of that statement. See Johnson, 2003 Tex. App. LEXIS 4638, at

*8. Furthermore, we have been unable to locate any binding precedent that requires

the trial court to conduct an evidentiary hearing to determine if the request was for the

purpose of delaying or disrupting the proceedings.

       Fifth and finally, as an unpublished opinion, Johnson has no precedential value.

See TEX. R. APP. P. 47.7(a). For these reasons, we do not follow it. Accordingly, we

cannot conclude that the trial court abused its discretion in failing to hold a hearing to

determine whether the request was made for the purpose of delay. Furthermore, we

note that appellant’s complaint is limited to the trial court’s failure to hold a hearing.



                                              6
Appellant does not contend that the trial court’s finding was unsupported by the record

or that the trial court otherwise abused its discretion in basing its decision on the history

of the case and prior proceedings. See TEX. R. EVID. 201(f) (“Judicial notice may be

taken at any stage of the proceeding.”). Accordingly, because we have concluded that

the trial court did not abuse its discretion in failing to conduct a hearing, appellant’s first

issue is overruled. See TEX. R. APP. P. 47.1.

                                       II. CPS RECORDS

       In his second issue, appellant contends that the trial court erred in admitting

State’s Exhibits 1 and 10 because they contained hearsay statements.

A. Applicable Law

       “Hearsay is an out-of-court statement ‘offered in evidence to prove the truth of

the matter asserted.’” Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011)

(quoting TEX. R. EVID. 801(d)). “Whether hearsay is admissible at a criminal trial is

determined by the Texas Rules of Evidence and the Sixth Amendment to the federal

Constitution.”   Id.1   “Generally, hearsay statements are not admissible unless the

statement falls within a recognized exception to the hearsay rule.” Pena v. State, 353

S.W.3d 797, 814 (Tex. Crim. App. 2011). The parties agree that the State laid a proper

foundation for admission of the CPS as business records. See TEX. R. EVID. 803(6).

       Nevertheless, “[w]hen hearsay contains hearsay, the [Texas] Rules of Evidence

require that each part of the combined statements be within an exception to the hearsay

rule.” Sanchez, 354 S.W.3d at 485–86 (citing TEX. R. EVID. 805). Thus, “[t]he [CPS]

records themselves were admissible, but that does not mean that all information, from


       1
          In this case, however, no objection was made based on the Sixth Amendment, so we consider
only the objection appellant made under Texas law. See TEX. R. APP. P. 33.1(a).

                                                7
whatever source or of whatever reliability, contained within those business records is

necessarily admissible.” Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004).

“When a business receives information from a person who is outside the business and

who has no business duty to report or to report accurately, those statements are not

covered by the business records exception.”              Id.   “Those statements must

independently qualify for admission under their own hearsay exception - such as

statements made for medical diagnosis or treatment, statements concerning a present

sense impression, an excited utterance, or an admission by a party opponent.” Id. at

926–27.

B. Standard of Review

       The Texas Court of Criminal Appeals has explained the standard of review as

follows:

       In determining whether a trial court erred in admitting or excluding hearsay
       evidence under such an exception to the hearsay rule, a reviewing court
       looks to see whether the trial court clearly abused its discretion; before the
       reviewing court may reverse the trial court’s decision, it must find the trial
       court’s ruling was so clearly wrong as to lie outside the zone within which
       reasonable people might disagree.

Taylor v. State, 268 S.W.3d 571, 578 (Tex. Crim. App. 2008). “Of course, the trial

court’s discretion must be informed by a proper understanding of the law.” Id.

C. Proceedings

       At trial, the State called Cheri Denney, an investigator with Child Protective

Services (“CPS”) in Ohio, as a witness. She authenticated nineteen pages of CPS

records from 1990 as business records. The records were then offered into evidence

as State’s Exhibit 1. Appellant objected, stating, “Judge, we’re going to object even

though there’s a business predicate that has been laid, there’s hearsay in the document

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itself. We would object on those grounds.” The objection was overruled, and State’s

Exhibit 1 was admitted into evidence.

      Subsequently, the State began to elicit testimony about contents of the record,

and appellant again objected:

      Ms. Denney:         Okay, this is a copy of the intake sheet, if you will, that
                          we would get that would tell us what the allegations
                          were, what the concern was. And it states that
                          mother went to the shelter last Friday night due to
                          domestic violence. Mother claims oldest child –

      [Defense Counsel:] Judge, I’m going to object again. Now we’re getting
                         into hearsay.

      The Court:          Overruled. I can give you a running objection as we
                          go through these.

      [Defense Counsel:] All right, Judge. So I have a running objection?

      The Court:          Yes, yes.

      Later in the trial, another fifteen pages of CPS records were offered as State’s

Exhibit 10, prompting the following exchange:

      The State:          Your Honor, at this time we would offer into evidence
                          State’s Exhibit 10.

      Defense Counsel:    Judge, we would object on the grounds that there
                          does appear to be hearsay in here even though they
                          have established the business predicate, the business
                          records predicate. We’ve got remarks from other
                          people told me this, or other people told a friend,
                          somebody this – that kind of thing so we would object
                          on the grounds of hearsay.

      The State:          That’s why it’s an exception to the hearsay rule.

      The Court:          State’s [Exhibit] 10 is admitted.




                                           9
D. Discussion

       In his second issue, appellant contends that the trial court erred in admitting

State’s Exhibits 1 and 10, a combined thirty-four pages of CPS records. As set forth

above, at trial, appellant conceded that the State had laid a proper foundation for

admission of the CPS documents as business records.           See TEX. R. EVID. 803(6).

Nevertheless, appellant contends that the trial court erred in admitting State’s Exhibits 1

and 10 because they contained inadmissible hearsay not covered by the business

records exception. See id.

       “When an exhibit contains both admissible and inadmissible evidence, the

objection must specifically refer to the challenged material to apprise the trial court of

the exact objection.” Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).

Furthermore, the objecting party must request that the objectionable portions “be

deleted or covered.” Wintters v. State, 616 S.W.2d 197, 202 (Tex. Crim. App. 1981).

Otherwise, an “objection directed toward the report as a whole [i]s properly overruled.”

Id.

       For instance, in Wintters, the defendant objected to a police report on the basis

that it contained a specific hearsay statement and mentioned an extraneous offense.

See id. at 201. The defendant “made no request that any portion of the report be

deleted or covered which allegedly constitute hearsay or a reference to an extraneous

offense.” Id. at 202. Therefore, the objections were construed to be “directed toward

the entire exhibit.” Id. at 202. The Texas Court of Criminal Appeals held “that since

portions of the report were admissible, appellant’s objection directed toward the report

as a whole was properly overruled.” Id.



                                            10
       Similarly, in Foster, the defendant objected to an affidavit on the basis that it

contained hearsay statements. See Foster v. State, 779 S.W.2d 845, 858 (Tex. Crim.

App. 1989). The defendant “failed to request specific deletions of specific items in the

affidavit . . . .” Id. Accordingly, “[t]hese were objections directed toward the entire

exhibit, as in Wintters . . . .” Id. The Texas Court of Criminal Appeals held that the

defendant “preserved nothing for review” and that “[t]he trial court properly overruled his

objections.” Id.

       In this case, as in Wintters and Foster, appellant failed to request specific

deletions of specific items in the exhibits. See Foster, 779 S.W.2d at 858; Wintters, 616

S.W.2d at 202.     Instead, the only relief appellant requested was exclusion of both

exhibits, which is also what he argues on appeal. Since portions of the exhibits were

admissible, appellant’s objections directed toward them as a whole were properly

overruled. See Foster, 779 S.W.2d at 858; Wintters, 616 S.W.2d at 202; see also

Pinkney v. State, 848 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1993, no pet.)

(“Here, once the trial court overruled the appellant’s objection to the entire document,

the appellant should have objected to the specific parts of the document that were

inadmissible hearsay and ask[ed] the court to delete those parts of . . . [the] statement.

The appellant, therefore, waived the error concerning the admission of the statements.”)

(emphasis added). Appellant’s second issue is overruled.




                                            11
                                     III. CONCLUSION

       The judgment of the trial court is affirmed.


                                                    /s/ Nora L. Longoria
                                                 NORA L. LONGORIA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of September, 2013.




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