Description: Appellant Samson Moses Billiot appeals from his conviction for arson of a
habitation and forty-year sentence. See Tex. Penal Code Ann. § 28.02(a)(2),
(d)(2) (West 2011). Billiot argues that the trial court erred by denying him the
right to represent himself and that the evidence was insufficient to show he
started the fire by igniting a flammable or combustible liquid. Because Billiot first
1See Tex. R. App. P. 47.4.
raised his right to represent himself after the jury was empaneled and sworn, and
even then was equivocal about his desire to do so, the trial court did not err by
not allowing Billiot to represent himself. And because Billiot failed to challenge
on appeal the sufficiency of the evidence to support the alternative commission
means alleged in the indictment—igniting a flammable or combustible material—
the unchallenged means supports his conviction. We affirm.
On August 11, 2016, Billiot was caught on a security camera setting the
front wall of his mother-in-law’s house on fire.2 A woman who had been inside
the house attempted to extinguish the fire with a water hose but had to call the
fire department, which eventually put the fire out. Fire investigators found a
lighter-fluid bottle near where the fire had been set. Billiot later told the
investigators that he used lighter fluid he found at the house and his own
cigarette lighter to ignite the fire. Debris collected from the front of the house
tested negative for ignitable liquids. This absence of ignitable liquids could have
been “due to several factors, including destruction by the inherent nature of fire,
evaporation prior to collection and analysis, fire suppression activities, improper
packaging of sample, or lack of use of ignitable liquids.” Even so, a fire
investigator opined that a flammable liquid was used to start the fire. Billiot was
2The video showed Billiot walking from behind the house to the front and apparently splashing something from a bottle along the front wall while walking back and forth. Billiot then flicked his hand at the wall and ran away shortly before flames began to flicker at the base of the wall.
indicted with arson of a habitation “by igniting a flammable or combustible
material or liquid with an open flame or other ignition source.”
After a jury was selected and sworn, the trial court, outside the presence of
the jury, addressed three motions Billiot had filed pro se.3 Billiot’s counsel
pointed out that the relief Billiot requested in his pro se motion to suppress—
redaction of “extraneous things” from his custodial statement—had been agreed
to by the State, but averred that Billiot’s remaining two motions were meritless.
The trial court informed Billiot that he was not entitled to file motions on his own
behalf unless he wanted to represent himself pro se. Billiot stated he wanted to
represent himself if his counsel did not “adopt” his pro se motions and attempted
to argue the merits of his motion to suppress his custodial statement. After the
trial court questioned him on his education and facility with the rules of evidence,
the trial court then “strongly, strongly urge[d]” Billiot to “follow [his counsel’s]
advice, because at this point I am not convinced that you are knowledgeable
enough of the law to have you represent yourself.” Billiot then requested
“another attorney,” which the trial court denied. After the jury returned and the
trial court asked Billiot for his plea to the indicted offense, Billiot stated, “The plea
is I’m not getting proper representation, so go [expletive] yourself.” After
3Billiot filed a motion to quash the indictment two months before his trial and hand-delivered a motion to suppress the security-camera video and a motion to suppress his custodial statement the day after the jury was impaneled. The hand-delivered motions were neither filed nor ruled on; however, the trial court denied the motion to quash the indictment.
ushering the jury out, the trial court asked Billiot if he did “not wish to participate.”
Billiot affirmed that he would not enter a plea because he was “not getting proper
representation.” The trial court entered a not guilty plea on his behalf.
Billiot now argues that the trial court improperly denied him the right to
represent himself without making “specific findings justifying [the] decision.” We
review the trial court’s factual determination of whether Billiot elected to represent
himself for an abuse of discretion. See DeGroot v. State, 24 S.W.3d 456, 457
(Tex. App.—Corpus Christi 2000, no pet.). Although a defendant is entitled to
represent himself, such a request must be timely and unequivocal. See Teehee
v. State, No. 02-14-00137-CR, 2015 WL 1868868, at *1 (Tex. App.—Fort Worth
Apr. 23, 2015, no pet.) (mem. op., not designated for publication) (citing Ex parte
Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992)). The court of criminal
appeals has clearly held that to be timely, the request must be made before a
jury is empaneled—before the jury is selected and sworn. See McDuff v. State,
939 S.W.2d 607, 619 (Tex. Crim. App. 1997); Winton, 837 S.W.2d at 135;
Blankenship v. State, 673 S.W.2d 578, 585 (Tex. Crim. App. 1984); see also
Lathem v. State, 514 S.W.3d 796, 809–10 (Tex. App.—Fort Worth 2017, no pet.).
Here, Billiot’s actions, even if construed to be a waiver of his right to counsel,
were untimely. We reject Billiot’s appellate contention that we should stray from
the court of criminal appeals’ clear timeliness demarcation.
Additionally, Billiot did not clearly and unequivocally waive his right to
counsel and assert his desire to represent himself. Although Billiot stated that he
wanted to represent himself if his counsel did not “adopt” his pro se motions, he
also requested a different court-appointed attorney. This is insufficient to
constitute a clear and unequivocal assertion of his right to represent himself.
See, e.g., Robinson v. State, 387 S.W.3d 815, 820–21 (Tex. App.—Eastland
2012, no pet.); Livingston v. State, No. 14-06-01031-CR, 2008 WL 2262033, at
*9–10 (Tex. App.—Houston [14th Dist.] May 29, 2008, pet. ref’d) (mem. op., not
designated for publication); Saldaña v. State, 287 S.W.3d 43, 52–56 (Tex.
App.—Corpus Christi 2008, pet. ref’d); Thomas v. State, Nos. 05-04-01289-CR,
05-04-01290-CR, 2006 WL 1624393, at *2 (Tex. App.—Dallas June 13, 2006,
pet. ref’d) (mem. op., not designated for publication). On this record, we cannot
conclude that the trial court abused its discretion, and we overrule point one.
In his second point, Billiot contends that the evidence was insufficient to
show that he used a flammable or combustible liquid to ignite the fire. He mainly
relies on the fact that because the fire debris tested negative for an ignitable
liquid, the fire investigator’s opinion that a flammable or combustible liquid was
used based on the security-camera video and Billiot’s custodial statement was
mere “guesswork.” But as the State argues, Billiot fails to challenge the
sufficiency of the evidence to support ignition by use of a flammable or
combustible material, which was an alternative method alleged in the indictment
and included in the jury charge. Thus, his conviction is supported by this
unchallenged commission method. See Kitchens v. State, 823 S.W.2d 256, 259
(Tex. Crim. App. 1991); Henderson v. State, 77 S.W.3d 321, 327 (Tex. App.—
Fort Worth 2002, no pet.); Moore v. State, 54 S.W.3d 529, 547 (Tex. App.—Fort
Worth 2001, pet. ref’d). We overrule point two.4
Outcome: Having overruled Billiot’s appellate points, we affirm the trial court’s