Allen Michael Pena v. the State of Texas

NUMBER 13-25-00300-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG ALLEN MICHAEL PENA, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 347TH DISTRICT COURT OF NUECES COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Silva and Cron Memorandum Opinion by Justice Silva After a bench trial, the trial court found appellant Michael Allen Pena guilty of two counts of aggravated assault with a deadly weapon, Counts One and Two, second- degree felonies, and one count of unlawful possession of a firearm by a felon, Count Three, a third-degree felony. See TEX. PENAL CODE §§ 22.02(a)(2), (b), 46.04(e). The trial court originally imposed a ninety-nine-year sentence but subsequently held a second sentencing hearing. At the second sentencing hearing, the trial court found the State’s enhancement allegations true and sentenced Pena to fifty years’ imprisonment for Counts One and Two, and ten years’ imprisonment for Count Three. The trial court ordered all the sentences to run concurrently. By two issues, which we reorganize and renumber, Pena argues (1) the trial court violated his due process rights by permitting Pena to represent himself at trial without providing “full Faretta warnings,” see Faretta v. California, 422 U.S. 806, 807 (1975), and (2) the evidence was legally insufficient to support his aggravated assault convictions. We reverse and remand for a new punishment hearing but affirm the judgment in all other respects. I. BACKGROUND 1 On April 4, 2024, a superseding indictment charged Pena with two counts of aggravated assault with a deadly weapon, Counts One and Two. See TEX. PENAL CODE § 22.02(a)(2). Count One alleged that Pena committed the offense “by pointing a firearm at Sylvia Davila.” Count Two alleged that Pena committed the offense “by pointing a firearm at Manuel Hernandez III.” The superseding indictment also charged Pena with unlawful possession of a firearm by a felon, Count Three. Furthermore, the superseding indictment alleged that Pena committed all the charged offenses on February 9, 2024. On April 9, 2024, Pena’s first court-appointed trial counsel filed a motion to withdraw. Two days later, the trial court granted the motion and appointed Pena new trial counsel. On May 17, 2024, the State filed its notice of its intent to enhance the applicable 1 We limit our background discussion to those facts necessary to resolve the issues in this appeal. 2 punishment range for Pena’s punishment as to Counts One and Two “with two prior felony convictions.” See TEX. CODE CRIM. PROC. art. 12.42(d) (providing for the enhancement of the applicable punishment range for a non-state jail felony offense if defendant has two previous, sequential convictions for non-state-jail felonies). The notice also indicated the State intended to enhance the applicable punishment range of Count Three “with one prior felony conviction.” See id. art. 12.42(a) (providing for the enhancement of the applicable punishment range of a third-degree felony to that of a second-degree felony if defendant has a previous conviction for a non-state-jail felony). On May 23, 2024, the trial court held a hearing on appellant’s motion to reduce bond. During the hearing, appellant was arraigned on all the charges in the superseding indictment. Appellant was informed by the trial court of the degree of offense for each count and that they were “enhanced.” Appellant waived the reading of the indictment and entered a plea of not guilty. After hearing testimony and argument, the trial court denied appellant’s motion to reduce bond. On the same day, the trial court appointed Richard Zapata as Pena’s new trial counsel. 2 A bench trial was set for June 28, 2024. On June 28, 2024, the trial court called Pena’s case to proceed with a bench trial. The State announced it was ready; however, Zapata stated, “Defense is not ready” and that he was making an oral motion to withdraw. The following exchange occurred: THE COURT: All right. [Pena], it looks like your attorney is having some conflicts in the case and can’t represent you. What do you want to do on the case? 2 The record contains no motion to withdraw filed by Pena’s second court-appointed counsel, nor an order by the trial court granting such a motion. 3  [Pena]: Proceed pro se right now. THE COURT: Pro se? All right. Then [Zapata’s] withdrawal is granted. We will proceed pro se and I’ll get back to you. I don’t know that we’re starting today. Are we starting next week; is that right? [Prosecutor]: Judge, the State has all of its witnesses today. It was my understanding that we were going to do it today. ... [Prosecutor]: There was some back and forth, Judge, on possibly getting a reset. We were waiting on a copy of the transcript. We thought it wouldn’t come until today, but we got it yesterday. THE COURT: Well, the only issue, or one of the issues I see is that if [Pena] is going to represent himself, he needs to be able to look at the discovery and be ready for trial. [Pena]: I’m ready, Your Honor. THE COURT: You’re ready? [Pena]: I’m ready. THE COURT: Okay. All right. We’ll call the case and we’ll get started here today. I don’t know if we’ll finish today, but we’ll at least get started. [Zapata]: Am I dismissed, Judge? THE COURT: You are dismissed. The trial court then advised Pena that it could appoint him another attorney, provide him more time to prepare, “go forward today,” allow him to withdraw his bench trial request and go forward with a jury trial, or even appoint an attorney “to sit with [him] and advise [him] without necessarily being [his] attorney.” When the trial court asked what Pena wanted to do, Pena stated, among other things, that his previous attorneys were “working 4 with the DA,” that he had been previously in a trial when “there’s been [prosecutorial] misconduct,” that he had “fought for a long time [in] the Fifth Circuit trying to overturn [his] conviction,” that his former counsel had told him “the best thing to do is go by the judge because it’s insufficient evidence,” and that he was only asking for a bench trial, for the trial court to be “fair, constitutional fairness,” and for the trial court to “see the evidence as it is.” When the trial court asked if he wanted to “go forward today,” Pena responded, “Yes, sir. I want to go forward today if I could—[Zapata], before he left, said he was going to give a copy of transcripts and stuff that I could just make notes.” The trial court then stated that it was going to “follow what [Pena] want[ed] to do,” but advised him that, “[u]sually, a person has time to review the documents against them, . . . when you represent yourself, I have to hold you up to the same standards that I would had you had a law degree because that’s fair.” The trial court also advised Pena that: And normally, let’s say a new attorney came on, I would give that attorney time to prepare. Just like if you represent yourself, I will order that you be given certain discovery for you to review in preparation for trial. But if you want to waive that, you can waive that. Just—you know, I do have to tell you, I still have to hold you up to same rules of evidence. If you’re going to try to admit evidence, you have to follow the rules of evidence. If you’re going to try to get witnesses, [those witnesses have] got to be here. You have [to] follow the rules on hearsay and all of those other rules that we have in court. And, you know, I hear that you want to get your case done today, but I have to tell you, you know, without at least being able to look through the discovery and spend some time with the discovery, I don’t know if you’re going to be prepared or not. In response to the trial court’s concern about his lack of preparation, Pena stated, among other things, “there’s no way . . . the alleged victim could twist and turn their statement. 5 There’s no way I can twist and turn my statements. It’s all—it’s just there. I mean, we were all there.” Pena then asked for transcripts “from the first bond reduction,” and the State responded that it could give him a copy. Thereafter, the trial court again advised Pena that it could provide him more time to prepare: I can start your bench trial now. I can start your bench trial next week. I can give you the weekend to look through the transcripts. I don’t want you to feel rushed. I mean, again . . . I want to make sure that you have every opportunity to prepare and be ready for trial because, just like what you said, you want me to be fair, I’m going to be fair to the State, I’m going to be fair to you. And I’m going to consider . . . guilt/innocence and then I’m go[ing] to consider the full range of punishment and I don’t want you, as a defendant representing himself, to feel like you’re unprepared going into that because it is a big deal. In response, Pena stated “I just want to go home, get back to work. I feel it’s a strong case of reasonable doubt.” The trial court then indicated it would permit Pena to review the transcripts “now,” but offered Pena the weekend to review them and start the bench trial on Monday. However, the trial court also told Pena, “If you want to do it now, we’ll start the case now.” In response, Pena stated “I’m ready now.” Pena then inquired about proceeding on the bench trial that day with “substitute counsel.” In response, the trial court stated, “That . . . would be very difficult. I would have to find somebody and then have that counsel ready to go today. I don’t know that that would be possible. I don’t know that a lawyer would be willing to do that.” The trial court also advised Pena that if he wanted substitute counsel, it would “have to appoint counsel and reset the case.” In response, Pena stated “All right, then I guess continue. Just waiting on the other part of the transcript.” The trial court again inquired if Pena wished to “continue today,” and Pena stated, “I just wish to continue today.” Thereafter, the State 6 and Pena, acting pro se, agreed to waive their right to a jury trial. 3 The parties then provided opening statements, and then the State proceeded to call witnesses. Davila testified that on February 9, 2024, she was inside her home in Corpus Christi when her son, Hernandez, called her from outside and told her to call 911. Hernandez had been cutting the grass at the time. Davila then ran to the door to look outside and saw Pena standing by the front-passenger door of a maroon-colored car parked “in between” her and her neighbor’s driveway, which were “connected.” According to Davila, Pena pulled a black gun from behind his back and aimed it at Hernandez. Davila then told Pena to leave and noticed three people inside the car. According to Davila, Pena got into the car’s front-passenger seat. As the car took off, Pena rolled a window down and aimed the gun at her face. Davila testified that she did not see who was in the driver seat but stated there was a boy in the back of the car. When asked if she saw a woman in the back of the car, Davila stated, “No.” Davila called the police after the car and its occupants left. On cross-examination, the following exchange occurred: [Pena]: . . . [D]o you actually know that he had a gun for sure? That I—I mean, basically me, [Pena]? [Davila]: It was pointed at my face, so I saw the gun. [Pena]: Yes, ma’am, but do you actually know for certain that it was an actual firearm he had? Could it be a—perhaps a BB gun, a water gun? [Davila]: If it’s pointed at my face— [Pena]: A lighter? [Davila]: —I would think it was a gun. 3 Pena signed a pro se waiver of jury trial. 7  [Pena]: Okay. [Davila]: But I don't know if it was real or not. Hernandez testified that in the morning of February 9, 2024, he received several phone calls and text messages from Ashley Andrade’s phone, his ex-girlfriend. Hernandez stated that he texted Andrade’s phone back stating, “Just leave me alone.” He admitted he said some un-kind words. Hernandez testified that Andrade’s brother’s vehicle was parked at Davila’s home, but the vehicle was not operable. When asked if Andrade had said anything about picking up her brother’s vehicle that day, Hernandez replied, “No.” Hernandez received a video to his phone from Andrade’s phone around 5 p.m., which was admitted into evidence. The video depicts Pena stating, among other things, “you don’t call my b[***] no more,” “I know where you live,” and “f[***] with my car, n[****], you f[***] with me.” Hernandez stated he was at home cutting the grass when he received the video and did not reply. Not long after the video was sent, Hernandez noticed a maroon vehicle parked in front of his neighbor’s home. Hernandez stated Pena stood outside the vehicle shirtless and his hand behind his back, yelling at him. Hernandez stated he had never seen the vehicle before, and he did not know who Pena was at the time. Hernandez also stated he did not understand what Pena was yelling because the lawnmower was on. Hernandez turned off the lawnmower and then saw Andrade’s son, Jose, get out from the backseat of the vehicle. Hernandez also stated he believed he saw Andrade in the driver’s seat. According to Hernandez, Pena “talk[ed] a lot of noise to [him],” and Hernandez “cussed [Pena] out.” Hernandez then started walking towards Pena and told Davila “to call the cops,” when “[Pena] pulled his right hand and he pointed” a black gun at 8 Hernandez’s face. In response, Hernandez pulled out a knife that he used for weeding. Hernandez stood approximately 10 to 15 feet away from Pena. Hernandez also testified that Pena claimed that he was “Mexican Mafia,” which Hernandez stated was a prison gang. Hernandez stated that Davila yelled at Pena to leave, and Pena then went inside the vehicle. As the car drove off, Pena pointed the gun at Davila. Hernandez stated that he ran towards Davila to protect her because he thought Pena was going to kill her. Hernandez also testified that he had experience with guns. When asked why he thought it was a real gun, Hernandez stated, “Just the barrel alone, you can tell it was big enough to not be fake.” Hernandez also indicated that it did not look like a pellet or water gun. On cross-examination, Hernandez indicated he did not know if there were real bullets inside the gun Pena held, or whether it was “loaded or not loaded.” Hernandez also admitted that he had not held the gun Pena held. On redirect, Hernandez testified he received text messages from Andrade’s phone after he had contacted police. Screenshots of these text messages were admitted into evidence, which stated “snitch shyt or ima let it be known yr a rat,” “La Mexican mafia deals with. Rats. Ain’t no concern,” and “If a c/ pulls up…yr da 1 in da wrong…I’ll let it be known.” Investigator Vince Guiterrez with the Corpus Christi Police Department (CCPD) testified that Pena had been previously identified as a member of the Mexican Mafia. Crystal Reyes, Pena’s ex-girlfriend, testified that Pena picked her up and they went for a “cruise” along with Andrade and Jose. She stated that at some point, they arrived at a house, and a man was outside. Reyes observed Pena get out of the vehicle and exchanged words with the man. However, Reyes testified she did not know what was said because she was wearing her headphones at the time. According to Reyes, the man 9 then ran towards the vehicle and threw a knife at Pena. Reyes stated that the man started throwing rocks at Pena and Pena then grabbed an object from Jose and told the man “to back up and what have you, and I think somebody came out of the home.” When asked if Pena had an actual gun or not that day, Reyes replied, “No.” On cross-examination, Reyes admitted that she had sat directly behind Pena in the vehicle but did not know what was in his hand. On redirect, Reyes clarified that the object “wasn’t even shaped like a gun.” On the second day of trial, Hernandez testified again over Pena’s objection and stated he obtained surveillance footage of the incident from his neighbor across the street. Hernandez recorded the footage on his personal cell phone, and the cell phone video was admitted into evidence as an exhibit. The cell phone video depicted a man standing outside a maroon vehicle without a shirt, twice extending his right hand in front of him. 4 Hernandez testified while the video was played before the trial court. He indicated the man in the video was Pena and that Pena had a gun in his hand when he raised his hand in the cell phone video. The following exchange occurred: [Prosecutor]: Okay. As he’s driving away, what was he doing? [Hernandez]: Right there, I was— [Prosecutor]: Let me take this frame by frame. [Hernandez]: Right there to the left, I’m looking at him and he’s already looking at [Davila], pointing the gun at that moment. [Davila] sees it. If you look, [Davila] starts running right there. Running for her life and I’m running to run to her. Running to—I’m literally going to take a bullet in the back 4 We note it is not clear whether the person in the cell phone video is holding an object in his hand due to the quality of the footage. 10  for [Davila] because I didn’t know if he was going to pull the trigger. Andrade testified she drove Pena’s maroon vehicle to Hernandez’s house with Pena and Jose. Andrade stated that Reyes was not in the car. According to Andrade, Pena got out of the car and exchanged words with Hernandez. Then Andrade’s son got out of the car, and “[Pena] turned around and . . . grabbed a BB gun from [Jose].” Andrade explained that Jose had gotten the BB gun for Christmas. On cross-examination, Andrade affirmed that she had never mentioned a BB gun when discussing the case with the prosecutor. Madilyn Biediger testified that she was an intern with the Nueces County District Attorney’s Office and was present during a telephone conversation between Andrade and the prosecutor. The following exchange occurred: [Prosecutor]: Okay. Do you recall me asking [Andrade] about whether [Pena] had a gun that day? [Biediger]: I do. [Prosecutor]: What she did say? [Biediger]: Yes. [Prosecutor]: Did she ever reference a BB gun? [Biediger]: No. Pena testified in his own defense and stated that he “pointed” at Hernandez after Hernandez threw a knife and rocks at him but did not have a toy gun or BB gun. Pena stated that one of the rocks fell into the car and that he intended to throw it out of the car’s window. According to Pena, “[Davila] got scared and [Hernandez] ran to go and cover her,” but Pena “didn’t mean to throw it anywhere in their direction” and that he “just threw 11 it out the car.” Pena further stated that he grabbed a “little lighter gun” Jose used to smoke marijuana, “threw that back in the car,” got in the car, and drove off. When the trial court asked Pena what he had grabbed, Pena stated It was basically—what it looks like—I don’t know. It’s kind of shaped like a gun to me. It ain’t no gun, though. [Jose] . . . smokes marijuana out of it, the little 15-year-old. I grabbed it out of his hand and I threw it back in the car, but I guess [Hernandez] thought it was a gun or whatever it was. It wasn’t. As you can see, there’s no gun on video whatsoever. After Pena presented the testimony of his stepmother, the parties rested and provided closing arguments. The trial court initially pronounced Pena guilty of “both” counts and then indicated it was “not going to proceed with sentencing” and was “going to order a [pre-sentence investigation (PSI) report].” The trial court then asked Pena if he wished to waive the PSI report. The following exchange occurred: [Pena]: You can waive it, Your Honor. I just ask that you give me [ninety-nine]. You might as well—go ahead and give me the [ninety-nine]. I’m asking for the [ninety- nine]. .... [Pena]: I’m already 30—I’m already 36 years old. I got found guilty of a crime that had absolutely no evidence and then I just ask that you give me [ninety-nine]. THE COURT: I wouldn’t do that. I still need to base my sentence on what the evidence is. [Pena]: Your Honor, you convicted me without . . . no evidence. .... [Pena]: Even—I mean, a paralegal could have beat this case, so I’m going to go ahead and just ask for [ninety-nine] years in prison, Your Honor, because I was railroaded from the beginning. 12  .... THE COURT: All right. State, argument. [Prosecutor]: Judge, we are ready to proceed with sentencing today. If the Court’s inclined to give him [ninety-nine], the State’s certainly not going to oppose that. We believe that his history justifies that. We believe his actions during this trial justify that. The actions in the underlying case justify that. THE COURT: I don’t believe that, but, [Pena], if—I mean, I’m going to follow what you’re asking me to do, but that’s not what I believe. [Pena]: I—I’m 36 years old. If you give me five—another five, I’m going to be 40. I’m going to be 46. THE COURT: Well, you— [Pena]: I’m damn near dead already. THE COURT: Let me at least explain this to you. If we start—we’re just going to start the punishment phase. You have the right to present any witness you want in regards to punishment. I’ll give you all the time you need to prepare. .... [Pena]: A paralegal could have beat this, Your Honor. There was no gun on video, no gun in evidence. They couldn’t even—I couldn’t even have an expert witness do the fingerprint analysis to tie me to the gun, if I had an actual gun, or I couldn’t have an expert witness— firearm expert witness say there’s actual ammunition, there’s actual—I’m just getting railroaded, Your Honor. Every attorney I got, they quit on me because they knew that I’ve had all these cases beat. THE COURT: Do you want an attorney appointed for the punishment phase? [Pena]: I would like to claim a mistrial, Your Honor. 13 THE COURT: I’m going to deny that at this time. [Pena] Based upon the fact that it’s been constitutionally unfair that I had . . . absolutely no defense, Your Honor. I was clearly outnumbered by the State. I mean, . . . at the time I said that I still wanted to proceed, I should have still been given sub[stitute] counsel. THE COURT: Are you asking for counsel at the punishment phase? [Pena]: No, I’m saying I should have been given sub[stitute] counsel. .... THE COURT: Okay. At this point, we’re going to move forward with punishment and you can do a couple of things. I will allow . . . you call any witnesses that you want that are relevant to punishment, present any evidence that you want. I will also give you the opportunity to have a lawyer work with you for the punishment phase. If you want to go to sentencing, I will grant your request for PSI. I will—or we can proceed forward with sentencing now. Whatever you want to do. [Pena]: So you’re finding me guilty, like, that’s it? These are the actual charges I’m being charged with, or can I ask to be considered of lesser included charges? THE COURT: No, there weren’t any lesser included. So I found you guilty of the three counts in the indictment. [Pena]: You said you found me guilty of two. THE COURT: Well, that was the—there is an amended indictment. So under the re-indictment, I’m going to find you guilty of the three; agg[ravated] assault with a deadly weapon, second count of agg[ravated] assault with a deadly weapon, and unlawful possession of a firearm by a felon. Do you want some time to think about it before? [Pena]: Just go ahead and just—I mean, what’s all to think about? I got railroaded. That’s what I’m saying. I mean, 14  I don’t got no more life. Might as well just give me the [ninety-nine]. I’m never going to come home again. Nobody knows what prison is like. THE COURT: I would—I will tell you— [Pena]: Just give me the [ninety-nine], that way I can just—I mean. THE COURT: All right. [Pena]: Y’all made me to be the bad person that I am. .... [Pena]: Bro, I’m never coming home again. THE COURT: Hold on, guys. All right, [Pena], I’m going to grant your request. I’m going to—I find you guilty on those three counts. I’m going to sentence you to [ninety-nine] years confinement. The trial court did not sign a written judgment memorializing its oral pronouncement. On July 10, 2024, Pena was appointed new trial counsel. On July 16, 2024, Pena’s fourth court-appointed counsel filed a motion to reconsider punishment, requesting the trial court to vacate its original sentence. The trial court did not enter a written order granting or denying this motion. On August 23, 2024, Pena filed a pro se motion for acquittal challenging his three convictions and sentences. Pena alleged in the motion, among other things, that the superseding indictment was invalid, that the trial court was without jurisdiction to convict and sentence him, and that his convictions and sentences violated principles of double jeopardy and his rights to due process. On December 11, 2024, Pena’s fourth court-appointed trial counsel filed a motion to withdraw, which was granted by the trial court on December 19, 2024. On February 24, 15 2025, Pena was appointed new trial counsel. On March 3, 2025, Pena’s fifth court- appointed trial counsel filed a motion to withdraw. On March 31, 2025, Pena was appointed new trial counsel. 5 On May 28, 2025, the trial court conducted a sentencing hearing. Pena was represented by his sixth court-appointed counsel. The parties presented testimony and evidence to the trial court, including the judgments of Pena’s two prior felony convictions. Regarding the State’s enhancement allegations, the trial court pronounced that it was going to “make the findings that there are two priors which makes th[ese] cases for the two aggravated assaults 25 to life, and then felon in possession, a 2 to 20 case.” The trial court then sentenced Pena to fifty years’ imprisonment for Counts One and Two, and ten years’ imprisonment for Count Three. On the next day, Pena’s sixth court-appointed counsel filed a notice of appeal. This appeal followed. II. APPELLATE JURISDICTION “A timely notice of appeal is necessary to invoke appellate jurisdiction.” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (citing Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988)). In criminal cases, a defendant must file a notice of appeal within thirty days after the day the sentence is imposed or suspended in open court. See TEX. R. APP. P. 26.2(a). However, if a defendant timely files a motion for new trial, a notice of appeal must be filed within ninety days after the day sentence is imposed or suspended in open court. See id. R. 26.2(b). On July 16, 2024, Pena’s counsel filed a motion to reconsider punishment 5 The record does not contain an order by the trial court granting Pena’s fifth court-appointed trial counsel’s motion to withdraw. 16 requesting his sentences be set aside. We conclude the motion to reconsider punishment was the functional equivalent of a timely filed motion for new trial on punishment. See State v. Davis, 349 S.W.3d 535, 537–39 (Tex. Crim. App. 2011); TEX. R. APP. P. 21.1(b) (“New trial on punishment means a new hearing of the punishment stage of a criminal action after the trial court has, on the defendant’s motion, set aside an assessment of punishment without setting aside a finding or verdict of guilt.”); R. 21.4(a) (providing that a defendant may file a motion for new trial no later than thirty days after the date the trial court imposes or suspends sentence in open court). However, the trial court did not sign an order granting or denying Pena’s motion to reconsider punishment. Therefore, Pena had ninety days from the pronouncement of his sentence on June 28, 2024, to file a notice of appeal that invoked our appellate jurisdiction. See TEX. R. APP. P. 26.2(b). The Texas Court of Criminal Appeals has instructed us to liberally construe rules related to the perfection of an appeal. See Harkcom v. State, 484 S.W.3d 432, 433 (Tex. Crim. App. 2016); Few v. State, 230 S.W.3d 184, 190 (Tex. Crim. App. 2007); see also Vinson v. State, No. 13-19-00204-CR, 2019 WL 3368090, at *1 (Tex. App.—Corpus Christi–Edinburg July 25, 2019, no pet.) (mem. op., not designated for publication). Pena’s August 23, 2024 pro se motion for acquittal was filed within ninety days of June 28, 2024. We liberally construe Pena’s pro se motion for acquittal as a timely filed notice of appeal. See Harkcom, 484 S.W.3d at 433; Few, 230 S.W.3d at 190; Vinson, 2019 WL 3368090, at *1; TEX. R. APP. P. 26.2(b). Accordingly, we have jurisdiction over this appeal. III. WAIVER OF RIGHT TO COUNSEL In his first issue, Pena argues the trial court violated his due process rights by permitting Pena to represent himself at trial without providing “full Faretta warnings.” 17  The Sixth Amendment guarantees the fundamental right to be represented by counsel at a criminal trial. U.S. CONST. amend. VI, XIV; see Faretta, 422 U.S.at 807; see also Williams v. State, 252 S.W.3d 353, 355–56 (Tex. Crim. App. 2008). Therefore, an indigent defendant is entitled to appointed counsel, unless the defendant competently, intelligently, and voluntarily waives the right to counsel. Williams, 252 S.W.3d at 356 (citing Gideon v. Wainwright, 372 U.S. 335, 340–45 (1963)). The Sixth Amendment also contains the reciprocal right to self-representation, where the defendant voluntarily and intelligently requests to represent himself. Faretta, 422 U.S. at 807, 818–20, 835; Williams, 252 S.W.3d at 356. A defendant who has chosen to proceed pro se should be admonished about “the dangers and disadvantages of self- representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). In other words, for a waiver of counsel to be made voluntarily and intelligently in this context, it must be made “with a full understanding of the right to counsel, which is being abandoned”; generally, the record must reflect that the trial court “thoroughly” warned and admonished the defendant about proceeding pro se. Collier v. State, 959 S.W.2d 621, 626 & n.8 (Tex. Crim. App. 1997). “For example, defendants must be aware ‘that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights.’” Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022) (quoting Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988)). However, “a trial court need follow no formulaic questioning or particular script to assure itself that an accused who has asserted his right to self-representation does so with eyes open.” Id. (citation 18 modified). Furthermore, “a defendant need not have the skill and experience of a lawyer ‘to competently and intelligently choose self-representation.’” Id. (quoting Faretta, 422 U.S. at 835). “The focus is on whether the defendant is competent to choose to proceed pro se, not whether he is equipped to represent himself at trial.” Id. (citing Godinez v. Moran, 509 U.S. 389, 400–01 (1993)). The Texas Court of Criminal Appeals has “recognized that when the record does not affirmatively show that the defendant was sufficiently admonished as required by Faretta, it is reversible error, not subject to a harm analysis.” Williams, 252 S.W.3d at 357 (first citing Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App. 1992); then citing Powell v. State, 632 S.W.2d 354, 355 (Tex. Crim. App. [Panel Op.] 1982); then citing Johnson v. State, 614 S.W.2d 116, 117–19 (Tex. Crim. App. [Panel Op.] 1981); and then citing Lisney v. State, 574 S.W.2d 144, 145–47 (Tex. Crim. App. 1978 [Panel Op.])); see TEX. R. APP. P. 44.2(a). Pena argues that the trial court erred because it failed “to advise [Pena] of the dangers and disadvantages of self-representation.” He also argues that the trial court failed to inquire into his “background, experience, or ability to understand the consequences of proceeding without counsel before accepting the purported waiver.” He contends that the trial court’s “failure to advise [him] of the dangers and disadvantages of self-representation, together with its failure to ascertain [his] understanding, undermines any conclusion that [he] knowingly and intelligently waived counsel.” We disagree. The record reflects the trial court advised Pena that he was going to be held to the “same standards . . . had [he] had a law degree,” that Pena would “have to follow the rules of evidence,” and that “the rules on hearsay and all of those other rules that we have 19 in court.” The trial court also advised Pena that if he was “going to try to get witnesses, [those witnesses have] got to be here” and expressed concern about whether Pena was “going to be prepared or not” in proceeding with the bench trial pro se “without at least being able to look through the discovery and spend some time with [it].” After providing these warnings, the trial court repeatedly suggested to Pena that he could be provided more time to prepare for the case or be appointed new counsel; but Pena repeatedly stated he wished to proceed to a bench trial, pro se, that day. We conclude the trial court’s admonishments sufficiently warned Pena of the dangers and disadvantages of self- representation. See Faretta, 422 U.S. at 835; Osorio-Lopez, 663 S.W.3d at 757. Regarding his contention that the trial court failed to ascertain his understanding regarding the dangers of self-representation, we note that courts consider the totality of the circumstances when determining whether waiver is effective and “must examine ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’” Williams, 252 S.W.3d at 356 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). “But a trial judge has no duty to inquire into an accused’s ‘age, education, background or previous mental history in every instance where an accused expresses a desire to represent himself[.]’” Id. (alteration in original) (quoting Goffney, 843 S.W.2d at 584–85). The record demonstrates that the trial court did not formally question Pena regarding his background or experience, but it was not required to do so. See id. Based on the totality of the circumstances, including Pena’s responses and conduct in response to the trial court’s other inquiries, the trial court could have reasonably concluded that Pena’s waiver of his right to counsel was effective. See id. 20  Pena further argues that the record does not establish a knowing and intelligent waiver of his right to counsel because the trial court did not admonish him regarding the super