Summary
concluding trial court's failure to admonish pro se appellant about applicable punishment range does not, by itself, require reversal (citing Halliburton v. State, 928 S.W.2d 650, 652-53 (Tex. App.—San Antonio 1996, pet. ref'd))
Summary of this case from Gilbert v. State No. 05-03-01282-CR.
Opinion Nunc Pro Tunc Filed May 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F01-563888-MQ.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
Opinion By Justice LANG.
On the court's own motion, we issue this opinion nunc pro tunc to correct a clerical error in our May 5, 2004 opinion. We vacate our previous opinion. This is now the opinion of the court. Larry Don Smith appeals his conviction for the aggravated sexual assault of a child younger than fourteen years of age. After a jury trial, the appellant was sentenced to life imprisonment. The appellant argues that his waiver of appointed counsel and request to represent himself was not "knowingly and intelligently" made. Also, the appellant argues that the trial court erred in denying him a continuance to prepare his pro se defense. In addition, the appellant challenges the legal and factual sufficiency of the evidence proving that the victim was younger than fourteen years of age at the time of the offense. The trial court's judgment is affirmed.
The headings in the appellant's brief state that the "waiver of appointed counsel and [the] request to represent himself [were] not knowingly and voluntarily made." ( italics added). However, the appellant's brief argues that the waiver and request were not knowingly and intelligently made. The appellant does not argue that his waiver of counsel and request to represent himself was involuntary or coerced.
I. FACTUAL AND PROCEDURAL BACKGROUND
Joanne Crooks, a widow, and the appellant lived together as boyfriend and girlfriend for approximately nine years from 1992 to 2001. Crooks' grandchildren, including the victim, intermittently resided with or visited them. During their cohabitation, Crooks' grandchildren began calling the appellant, "Grandpa Larry." When the victim was eleven years old, the appellant began showing her magazine photographs, computer images, and movies of people having sex. One of the movies the appellant showed to the victim was a videotape of the appellant having sexual relations with Crooks, the victim's grandmother. The appellant also began to sexually assault the victim. At the age of thirteen, the victim made an outcry to her mother. The victim's mother contacted the police and took her daughter to the Children's Victim Assessment Center. The physical examination of the victim revealed no evidence of sexual intercourse, but the victim did test positive for Chlamydia, a sexually transmitted disease. The appellant was arrested and indicted for aggravated sexual assault of a child younger than fourteen years of age. This case was set for trial at least six times with at least three announcements of "ready." Immediately prior to voir dire, the appellant requested to represent himself and asked for a continuance to review the evidence and prepare a defense. In response to the appellant's request, the following dialogue took place: COURT: Mr. Smith. Go ahead. You're requesting that you be allowed to represent yourself; is that correct?
DEFENDANT: Yes, sir.
COURT: This is the first time that you have either to — well, the first time you made me aware of it and you never mentioned it to your attorney?
DEFENDANT: No, I have not. He is completely in the dark on this.
COURT: Mr. Stephens [court-appointed defense counsel], you have been on the case since February 2002?
MR. STEPHENS: That's correct, Your Honor.
COURT: I have the date you were appointed February 20, 2002. This is the first time you had any sort of inkling your client wishes to do this, as well?
MR. STEPHENS: Correct, Your Honor.
COURT: Mr. Smith, you feel you have given this serious consideration and [are] prepared to go forward today?
DEFENDANT: Yes, I have.
COURT: [Do] [y]ou want Mr. Stephens to sit and assist you in the event you have questions?
DEFENDANT: Or I would like to have some time to prepare a defense, because I need to see the evidence the prosecutor's using against me so I can have copies of it so I can use it to prepare a case. I need time.
COURT: I can't do that. You have sprung it [on] the day of trial.
DEFENDANT: I asked for a trial and I was moved in time, sir.
COURT: I'm talking about representing yourself.
DEFENDANT: Well, I kept thinking we would get to prepare my case and I would get to see the evidence. Not being aware there was any other way, I thought there would be a day he would show me the evidence.
COURT: What evidence is there that — Mr. Stephens, have you discussed this? I'm sure you talked with the prosecutor as far as what evidence might be presented?
MR. STEPHENS: Yes, sir.
COURT: Is there any tangible evidence of any sort, Ms. Wasson [prosecutor], of any consequence?
MS. WASSON: Your Honor, [the] [S]tate would be offering several items of evidence: videotape of the defendant and his spouse engaged in sexual contact that was shown to the victim; a videotape of the victim's interview at the Collin County Children's Advocacy Center; there's other evidence that was seized from the house, including a computer, two computer hard drives, video camera, various floppy disks, photographs taken of the exterior and interior of the home where the offense occurred.
That would be the bulk of the tangible evidence the [S]tate would offer.
COURT: Okay.
DEFENDANT: Your Honor, for me to prepare a defense, I have to see all of this and know. I would be willing to do it on my own to prepare it. I'm not sure he would be willing to do with assisted counsel. Because I haven't discussed it. I got to the point where I realize — I can't get a fair trial this way.
COURT: Are you trying two cases?
MS. WASSON: The [S]tate's proceeding on the aggravated sexual assault, Your Honor.
COURT: All right. We'll take a short recess here.
COURT: Mr. Smith, let me also make sure that you understand I discussed this earlier, but I want to make sure you understand If you represent yourself, you're gonna be basically held to the same standard as any other attorney that comes before me.
DEFENDANT: Yes, sir, I respect that.
COURT: I explained it to you that you not being trained and experienced in law, there may be situations where you may fail to make an objection because you don't know it's proper. Evidence may be admitted because you don't make proper objections. A number of matters could happen to your detriment and I want to make sure you understand fully that these issues may occur and you're going into this with your eyes wide open, understanding.
My advice to you is let your attorney handle it. It's your decision; however, it may — you know, it might not be in your best interest to do that. It's your decision. I want to make sure you understand that.
DEFENDANT: Your Honor, I respect you for that and I appreciate it very much. Obviously there's no easy — no way for this. But I just . . .
COURT: Mr. Stephens will be there if you need to ask him questions. You can ask him. He will be available to advise you if you need any sort of advice as well. . . .
The trial court granted the appellant's request to proceed pro se, but denied his request for a continuance of the trial. In addition, the trial court appointed standby counsel. The trial of this case commenced on August 12, 2003, and concluded on August 15, 2003. At trial, testimony revealed that the victim was currently fifteen years old and that she was thirteen years old during the summer of 2001. There was also testimony that the victim was born on September 16th. However, the year of the victim's birth was not provided in testimony and the victim's birth certificate was not admitted into evidence. At the conclusion of the trial, the jury found the appellant guilty of the aggravated sexual assault of a child. After a hearing on punishment, the jury sentenced the appellant to life imprisonment. The appellant appeals his conviction for the aggravated sexual assault of a child. II. WAIVER OF COUNSEL RIGHT TO SELF-REPRESENTATION
In his first issue on appeal, the appellant claims that the trial court did not make an inquiry into his "knowing and intelligent" waiver of counsel and did not advise him of the punishment range he would be facing. A. Applicable Law
Federal and state case law support the conclusion that the right to waive counsel and the right to self-representation are two separate rights. Eg. Faretta v. California, 422 U.S. 806, 814-34, 95 S.Ct. 2525, 2530-41, 45 L.Ed2d 562 (1975). Accord Johnson v. State, 760 S.W.2d 277, 279-81 (Tex.Crim.App. 1988) (en banc) (plurality opinion); Martin v. State, 630 S.W.2d 952, 954 (Tex.Crim.App. 1982) (en banc). See also Johnson, 760 S.W.2d at 280 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.); Williams v. State, 774 S.W.2d 703, 705 (Tex. App.-Dallas 1989, pet. ref'd). In Faretta, the U.S. Supreme Court established the independent right of self-representation, in addition to the previously recognized right to waive the assistance of counsel. Faretta, 422 U.S. 806, 95 S.Ct. 2525. See also Johnson v. State, 760 S.W.2d at 279 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). In the wake of Faretta, it has been generally accepted that a defendant's assertion of his right of self-representation is dependant, in part, upon a waiver of his right to counsel. Johnson v. State, 760 S.W.2d at 280 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). Federal courts have determined that the right of self-representation necessarily entails a waiver of the constitutional right to be represented. Id. at 281 citing eg. Chapman v. United States, 553 F.2d 886, 892 (5th Cir. 1977). Accord Webb v. State, 533 S.W.2d 780, 785 (Tex.Crim.App. 1976) (the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself). Cf. Burgess v. State, 816 S.W.2d 424, 429 (Tex.Crim.App. 1991) (en banc) (implicit in a defendant's assertion of the right to self-representation is a valid waiver of the right to counsel); Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim. App. 1992) (en banc) (the focus of the analysis when a defendant asserts his right of self-representation is not solely on whether there was an actual waiver of the right to counsel, but instead whether the defendant was aware of the dangers and disadvantages of self-representation). The Texas Court of Criminal Appeals analyzed Faretta in Martin and concluded that in order to represent himself, the accused must "knowingly and intelligently" forgo the traditional benefits associated with the right to counsel. Martin, 630 S.W.2d at 954. See also Johnson v. State, 760 S.W.2d at 287 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). In his concurring opinion in Martin, Judge Davis cautioned that "although the particular inquiry is no longer essential in every case, the record must affirmatively reflect that the accused made a knowing and intelligent waiver of his Sixth Amendment right to counsel . . ." Martin, 630 S.W.2d at 957 (Davis, J., concurring). See also Johnson v. State, 760 S.W.2d at 287 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). However, the case law does not offer any "bright lines" of guidance as to what must appear in the record to support a waiver of the right to counsel and an election to exercise the right of self-representation. As Presiding Judge Onion observed in 1988, this area of the law is a "bumpy, dusty road with annoying vibrations [and] road signs erected during construction [that] are sending mixed signals." Johnson v. State, 760 S.W.2d at 279-91 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). Today, the "road" remains "bumpy," "dusty," and the signs continue to send mixed signals. 1) waiver of the right to counsel
The Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution provide a criminal defendant with the right to assistance of counsel. U.S. Const. amend. VI and XIV § 1; Tex. Const. art. 1 § 10. However, that right may be waived. Eg. Tex. Const. art. 1 § 10 ("[an accused] shall have the right of being heard by himself or counsel, or both . . ."); Faretta, 422 U.S. at 814-15, 95 S.Ct. at 2530-31; Collier v. State, 959 S.W.2d 621, 625-26 (Tex.Crim.App. 1997) (en banc), cert. denied 525 U.S. 929, 119 S.Ct. 335, 142 L.Ed.2d 276 (1998); Geeslin v. State, 600 S.W.2d 309, 313 (Tex.Crim.App. 1980). To be constitutionally effective, a defendant's decision to waive counsel must be made: (1) competently; (2) knowingly and intelligently; and (3) voluntarily. Eg. Collier, 959 S.W.2d at 625; Goodman v. State, 591 S.W.2d 498, 499 (Tex.Crim.App. 1979) (en banc). Accord Godinez v. Moran, 509 U.S. 389, 400-01, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 813, 95 S.Ct. at 2531 (a defendant in the exercise of a free and intelligent choice may competently and intelligently waive his Constitutional right to assistance of counsel). The purpose of the "knowing and voluntary" inquiry is to determine whether a defendant actually understands the significance and consequences of his decision. Godinez, 509 U.S. at 401 n. 12, 113 S.Ct. at 2696 n. 12. A defendant "knowingly and intelligently" waives his right to the assistance of counsel when he intelligently, with a full understanding of the right, relinquishes or abandons his known right to counsel. See Collier, 959 S.W.2d at 626; Goodman, 591 S.W.2d at 499. The constitutional right of a defendant to be represented by counsel invokes the protection of the trial court and, this protecting duty imposes serious and weighty responsibility upon the trial judge in determining if there is an intelligent and competent waiver of that right. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) overruled on other grounds by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). A trial judge can make certain that a defendant's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). Accord Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App. 1984) (en banc). The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. To decide whether a defendant's waiver is "intelligent and voluntary" the trial court should inquire into his background, age, education, and experience. Geeslin, 600 S.W.2d at 313. See also Williams, 774 S.W.2d at 705. However, Faretta does not mandate an inquiry concerning a defendant's age, education, background, or previous mental health history in every case where a defendant expresses a desire to represent himself, for the record may otherwise be sufficient for the court to make an assessment of his knowing exercise of the right to defend himself. Goffney, 843 S.W.2d at 584-85; Johnson v. State, 760 S.W.2d at 278; Martin, 630 S.W.2d at 954. See also Williams, 774 S.W.2d at 705. Further, there is no required formula of questions necessary to establish that a waiver of the right to counsel is "knowing and intelligent." Eg. Burgess, 816 S.W.2d at 428; Johnson v. State, 760 S.W.2d at 278; Blankenship, 673 S.W.2d at 583. See Martin, 630 S.W.2d at 954 (a court is not required to ask particular questions). The record must show, or there must be an allegation and evidence which show, that a defendant was offered counsel, but intelligently and understandingly rejected the offer. A waiver of counsel will not be presumed from a silent record. Eg. Ex Parte Auten, 458 S.W.2d 466, 469 (Tex.Crim.App. 1970); Webb, 533 S.W.2d at 785 n. 8; Goffney, 843 S.W.2d at 585. Accord Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). A heavy burden rests upon the prosecution to demonstrate an intelligent, voluntary, and knowing waiver of the right to counsel, particularly as it is applied to the right to retained or appointed counsel. Eg. Johnson v. State, 760 S.W.2d at 286 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.); Geeslin, 600 S.W.2d at 313; Goodman, 591 S.W.2d at 499; Barbour v. State, 551 S.W.2d 371, 373 (Tex.Crim.App. 1977); Ex parte Bird, 457 S.W.2d 559, 560 (Tex.Crim.App. 1970). Yet, a waiver of the right to counsel will not be "lightly inferred" and the courts will indulge every reasonable presumption against the waiver. Johnson v. State, 760 S.W.2d at 286 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.); Martin, 630 S.W.2d at 957 (Davis, J., concurring); Geeslin, 600 S.W.2d at 313; Goodman, 591 S.W.2d at 499; Barbour, 551 S.W.2d at 373; Ex parte Bird, 457 S.W.2d at 560-61. Accord eg. Carnley, 369 U.S. at 514, 82 S.Ct. at 889 (the courts will indulge every reasonable presumption against the waiver of counsel); Von Moltke, 332 U.S. at 723, 68 S.Ct. at 323; Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. See also eg. Lawson v. State, 604 S.W.2d 91, 92 (Tex.Crim.App. 1979) (the courts will indulge every reasonable presumption against the waiver of counsel); Thomas v. State, 550 S.W.2d 64, 67 (Tex.Crim.App. 1977); Webb, 533 S.W.2d at n. 7. Neither the trial court nor the reviewing court can use hindsight to state that the appellant has validly waived his right to counsel. Geeslin, 600 S.W.2d at 314. Nevertheless, implicit in the assertion of the right of self-representation is a valid waiver of the right to the assistance of counsel. Burgess, 816 S.W.2d at 429. Further, although a careful trial court should do so, an inquiry into a waiver of counsel is not mandated for the trial court to assess the independent constitutional right of self-representation in every instance. Williams, 774 S.W.2d at 705. 2) right of self-representation
A defendant may choose to proceed pro se by exercising his right of self-representation. Eg. Tex. Const. art. 1 § 10 ("[an accused] shall have the right of being heard by himself . . ."); Faretta, 422 U.S. at 818 820, 95 S.Ct. at 2533; Moore v. State, 999 S.W.2d 385, 396 (Tex.Crim.App. 1999), cert. denied 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000); Collier, 959 S.W.2d at 625; Geeslin, 600 S.W.2d at 313. When Faretta established the right of self-representation, it stated that "[a]lthough a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation . . ." 422 U.S. at 835, 95 S.Ct. at 2541. Accord Blankenship, 673 S.W.2d at 583; Martin, 630 S.W.2d at 954; Collier, 959 S.W.2d at 626. Once a defendant asserts his right of self-representation, a trial court is obligated to advise the accused of the dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d 134, 135 (Tex.Crim.App. 1992) (en banc); Williams, 774 S.W.2d at 705. The admonishment of a defendant who wishes to proceed pro se should include an effort to ensure that the defendant is aware of the practical disadvantages of representing himself; that there are technical rules of evidence and procedure; and that he will not be granted any special consideration because he asserted his pro se rights. Johnson v. State, 760 S.W.2d at 279. Accord Von Moltke, 332 U.S. at 724, 68 S.Ct. at 323. See Geeslin, 600 S.W.2d at 314. Cf. Blankenship, 673 S.W.2d at 583 (requiring the penetrating examination described in Von Moltke). However, Faretta does not mandate an inquiry concerning a defendant's age, education, background, or previous mental health history in every case where a defendant expresses a desire to represent himself, for the record may otherwise be sufficient for the court to make an assessment of his knowing exercise of the right to defend himself. Goffney, 843 S.W.2d at 584-85; Johnson, 760 S.W.2d at 278; Martin, 630 S.W.2d at 954. See also Williams, 774 S.W.2d at 705. Further, the failure of a trial court to admonish a defendant about the possible punishment range in his case does not require automatic reversal. Halliburton v. State, 928 S.W.2d 650, 652-53 (Tex. App.-San Antonio 1996, pet. ref'd). The record must contain proper admonishments concerning pro se representation and any necessary inquiries of a defendant so that the trial court may make an assessment of his knowing exercise of the right to defend himself. Burgess, 816 S.W.2d at 428; Blankenship, 673 S.W.2d at 583. Accord Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (a defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open'). See eg. Goffney, 843 S.W.2d at 585; Martin, 630 S.W.2d at 954; Lawson, 604 S.W.2d at 92. The record must be sufficient for the reviewing court to make an assessment that the defendant was made aware of the dangers and disadvantages of the self-representation. Johnson v. State, 760 S.W.2d at 279; Goffney, 843 S.W.2d at 585. See also Collier, 959 S.W.2d at n. 8 (the record must reflect that the trial court thoroughly admonished the defendant); Geeslin, 600 S.W.2d at 314 (the facts demonstrating the defendant's awareness must affirmatively appear in the record). When reviewing the exercise of a defendant's right of self-representation, the reviewing court must look at the record as a whole or to the totality of the circumstances. Martin, 630 S.W.2d at 954; Johnson v. State, 760 S.W.2d at 279. See generally Johnson v. State, 760 S.W.2d at 287 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). B. Application of the Law to the Facts
In his first issue on appeal, the appellant specifically complains that: (1) the trial court failed to inquire into the waiver of his right to counsel by examining his background, age, education, experience or any other characteristic or accomplishment which would indicate that he had the capacity to fully appreciate the consequences of his actions; and (2) the trial court failed to properly admonish him of dangers and disadvantages of the exercise of his right of self-representation by warning him of the punishment range he was facing. The State responds that the trial court's inquiry into the appellant's "knowing and intelligent" waiver of his right to counsel was sufficient and is not constrained by a litany or specific formula of questions. Further, the State asserts that the trial court adequately advised the appellant of the dangers and disadvantages of self-representation. As to the appellant's complaint that the trial court was required to inquire into his age, background, education and experience to determine if his waiver of the right to assistance of counsel was "knowing and intelligent," we note that there is no evidence in the record that the trial court made such an inquiry or knew this information at the time the appellant waived his right to counsel. A careful trial court should inquire into a defendant's age, educational background, experience, and any other characteristics or accomplishments prior to permitting the waiver of counsel. Geelsin, 600 S.W.2d at 313; Williams, 774 S.W.2d at 705. See also Johnson v. State, 760 S.W.2d at 286 (Onion, J., concurring in part and dissenting in part, joined by Davis and Campbell, JJ.). However, there is no required formula of questions to establish that a waiver of the right to counsel is "knowing and intelligent." Eg. Blankenship, 673 S.W.2d at 583. The record demonstrates that the trial court asked the appellant if he had given his decision serious consideration and the appellant answered, "Yes, I have." The appellant then proceeded to tell the trial court he needed additional time to prepare his defense and expressed concern over his inability to see the State's evidence in advance. This showed that he understood the significance and consequences of his decision. Godinez, 600 S.W.2d at 401 n. 12. The appellant also complains that the trial court failed to admonish him of the punishment range he would be facing so that he was aware of the dangers and disadvantages of proceeding pro se. The record does not reflect that the appellant was admonished as to the general nature of the charge against him and the possible penalties that may be imposed. A cautious trial court should admonish a defendant desiring to exercise his right of self-representation so that he has an apprehension of the nature of the charges and the range of allowable punishments. See Geeslin, 600 S.W.2d at 314. However, the failure of the trial court to admonish him of the possible punishment range, by itself, does not require reversal. Halliburton, 928 S.W.2d at 652-53. The record reflects that the appellant asserted his right of self-representation prior to voir dire. Blankenship, 673 S.W.2d at 585 (assertion of the right to defend pro se is timely if asserted before the jury is empaneled). The record also reflects that the trial court admonished the appellant that he would be held to the same standard as any attorney; that because he is not trained and experienced in law there may be situations where he fails to make an objection; that evidence may be admitted because he does not make the proper objection; and that it may not be in his best interest to represent himself. Johnson v. State, 760 S.W.2d at 279. In addition, the trial court had the prosecution describe, in general terms, the tangible evidence it planned to present. We conclude that the appellant "knowingly and intelligently" waived his right to counsel and exercised his right of self-representation. After indulging every reasonable presumption against the validity of the appellant's waiver of counsel, we conclude that the record reflects that the appellant "knowingly and intelligently" waived his right to the assistance of counsel. In addition, because the appellant asserted his right of self-representation, a valid waiver of his right to counsel is implied. Burgess, 816 S.W.2d at 429. See also Williams, 774 S.W.2d at 705. Further, although a cautious trial court should inquire into a defendant's age, educational background, legal experience, and knowledge of the rules of evidence and trial procedure prior to permitting a waiver of the assistance of counsel, those inquiries were not made here. However, the independent constitutional right of self-representation does not mandate such inquiries in every instance when there is other evidence in the record that allows the trial court to evaluate a knowing waiver of the right to counsel and defend himself. Williams, 774 S.W.2d at 705. Here, the record contains sufficient information upon which the trial court could determine that the appellant knowingly waived counsel and chose to represent himself. We decide the first issue on appeal against the appellant. III. RIGHT TO A CONTINUANCE TO PREPARE PRO SE DEFENSE
In his second issue on appeal, the appellant argues that the trial court erred by refusing to grant him a continuance of the trial so that he could prepare his pro se defense. Specifically, the appellant complains that because his court-appointed attorney did not show him the prosecution's evidence, he was not afforded the ability to assist in his defense and, therefore, needed additional time to prepare his pro se defense. The State responds that the appellant fails to present authority in support of his claim and that pro se defendants are required to follow the procedural rules applicable to lawyers. The gravamen of the appellant's second issue on appeal is, in reality, that the trial court abused its discretion by failing to grant his motion for a continuance of the trial. A. Standard of Review
Granting or denying a motion for a continuance of a trial is within the discretion of the trial court. Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000), cert. denied 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). See Tex. Code Crim. Proc. Ann. art. 29.06(6) (Vernon 1989). In order to establish an abuse of the trial court's discretion, an appellant must show that the denial of his motion resulted in actual prejudice. Wright, 28 S.W.3d at 532. B. Applicable Law
Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Points of error are waived if an appellant fails to support his contention by citations to appropriate authority, or cites only to a single non-controlling case. See Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000), cert. denied 523 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027; Garcia v. State, No. 05-01-01013-CR, 2002 WL 959993 *2 (Tex. App.-Dallas 2001, no pet.) (not designated for publication). See also Sunnyside Feedyard, L.C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.-Amarillo 2003, no pet.); Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 647 (Tex. App.-Dallas 2000, no pet.). This rule does not prohibit an appellant from making a novel argument for which there is no authority "directly on point." See Garcia, 2002 WL 959993 at *2. However, a novel contention must be grounded in analogous case law or provide a relevant jurisprudential framework for evaluating the claim. See Tong, 25 S.W.3d at 710; Garcia, 2002 WL 959993 at *2. A motion for continuance in a criminal case is regulated by statute. Wright, 28 S.W.3d at 532. "A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). Further, "[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance." Tex.Crim. Proc. Code Ann. art. 29.08 (Vernon 1989). A criminal defendant who waives his right to counsel and chooses to proceed pro se is held to the same standards as any attorney who would represent him. Johnson v. State, 760 S.W.2d at 279; McCray v. State, 861 S.W.2d 405, 408-09 (Tex. App.-Dallas 1993, no pet.). See generally Burgess, 816 S.W.2d at 427 (affirming for other reasons a case where after being admonished, a pro se defendant's objection to going to trial immediately because he needed time to prepare was overruled by the trial court). The courts do not make allowances merely because a defendant waives his right to counsel and chooses to represent himself. McCray, 861 S.W.2d at 408. A defendant's right to represent himself cannot be manipulated so as to obstruct orderly procedure in the courts or to interfere with the fair administration of justice. Webb, 533 S.W.2d at 784. C. Application of the Law to the Facts
The appellant has not presented a clear and concise argument with appropriate citations to authority to support his contention that the trial court erred in refusing to grant him a continuance of the trial. Also, the appellant fails to support his contention in analogous case law or provide the relevant jurisprudential framework for evaluating his claim. Tong, 25 S.W.3d at 710. Nevertheless, we decline to conclude that the appellant waived this point on appeal. We will address the merits of the issue. Regardless of the fact that the appellant was representing himself, he is held to the same standards as any attorney who would represent him. Johnson v. State, 760 S.W.2d at 279; McCray, 861 S.W.2d at 408-09. See generally Burgess, 816 S.W.2d at 427. The appellant chose to represent himself after at least six prior trial settings and at least three announcements of "ready." There was no prior notice to the appellant's counsel or the trial court of his desire to proceed pro se. It is clear that the case was minutes away from proceeding with jury selection and trial when the appellant raised his desire to proceed pro se and made his oral motion for continuance. We conclude that the trial court did not abuse its discretion in refusing to grant the appellant's request for a continuance of the trial. We decide the second issue on appeal against the appellant. IV. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
In his third and fourth issues on appeal, the appellant challenges the sufficiency of the evidence to sustain his conviction for aggravated assault. Specifically, he argues that the evidence is legally and factually insufficient to prove that the victim was a minor younger than fourteen years of age at the time of the offense. A. Standards of Review
Differences exist between a factual sufficiency and legal sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Further, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id. 1) legal sufficiency of the evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). Cf. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed. 560, 573 (1979) (legal sufficiency of the evidence will be viewed in the light most favorable to the prosecution). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim. App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and non-favorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim. App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). 2) factual sufficiency of the evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim. App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be re-weighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation since the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim. App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 2004 WL 840786, at *4. See Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim. App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 2003). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 2004 WL 840786, at *7. Cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. B. Applicable Law
Texas Penal Code Section 22.021(a)(2)(B) states that a person commits aggravated sexual assault if the victim of the sexual assault is younger than fourteen years of age. Testimony is sufficient to prove the age of the minor victim of aggravated sexual assault. See generally Jason v. State, 589 S.W.2d 447, 449 (Tex.Crim.App. 1979). C. Application of the Law to the Facts
In his third and fourth issues on appeal, the appellant argues that the evidence adduced at trial was legally and factually insufficient to prove that the victim was younger than fourteen years of age at the time of the offense. Specifically, the appellant argues that the evidence of the victim's age is insufficient due to the State's failure to introduce the victim's birth certificate into evidence or to obtain testimony regarding the year of her birth. The State responds that the testimony of the victim and her family was legally and factually sufficient to prove the victim was younger than fourteen years of age at the time of the offense. The trial took place from August 12, 2003 to August 15, 2003. At trial, the testimony of the victim, her grandmother, her mother, and two non-family members revealed that: (1) the victim's date of birth was September 16th; (2) the victim would be sixteen years old in September 2003; (3) the victim was fifteen years old at the time of the trial; (4) in the summer of 2001, the victim was thirteen years old; (5) the victim was thirteen when she made her outcry to her mother; (6) in August 2001 the licensed professional counselor began seeing the victim who was thirteen years old at the time; and (7) on August 21, 2001, the supervisor for Child Protective Services interviewed the victim who was thirteen years old at the time. In addition, State's Exhibit 24, the business record affidavit of the Children's Assessment Center, includes a child biography form that lists the victim's date of birth as September 16, 1987. Viewing the evidence in the light most favorable to the verdict, there was testimony that the victim was younger than fourteen years of age at the time of the offense. During the trial, the victim, her grandmother, her mother, and two non-family members testified regarding the victim's age. A reasonable fact finder could believe the testimony, calculate the victim's age based upon the information provided in testimony, or infer that the victim was younger than fourteen years of age at the time of the offense. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that the victim was younger than fourteen years of age at the time of the offense. The appellant provides no contrary evidence, but instead argues that the evidence was factually insufficient because the State failed to introduce evidence of the victim's birth certificate and elicit testimony of the victim's year of birth. It is clear that the appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The jury's verdict was neither so contrary to the evidence that it is clearly wrong and unjust, nor the State's failure to admit into evidence the victim's birth certificate or elicit testimony of the year of the victim's birth sufficient to create reasonable doubt as to the victim's age at the time of the offense. After reviewing all of the evidence under the appropriate standards of review, it is clear that the evidence is legally and factually sufficient to support the appellant's conviction for aggravated sexual assault of a child younger than fourteen years of age. The appellant's third and fourth issues on appeal are overruled. V. CONCLUSION
The trial court made a sufficient inquiry to ensure that the appellant "knowingly and intelligently" waived his right to the assistance of counsel. The trial court also satisfied its minimum obligation to admonish the appellant of the dangers and disadvantages of exercising his right of self-representation. The appellant's complaint that the trial court erred by refusing his request for a continuance to prepare his pro se defense was lacking in merit since a pro se defendant is held to the same standards as any attorney who would represent him. Finally, the evidence is legally and factually sufficient to support the jury's conviction of the appellant for aggravated sexual assault of a child younger than fourteen years of age. The trial court's judgment is affirmed.