Criminal Law, pro se defendants
January-February 2024

Justice delayed by a vociferous defendant

By J. Brett Smith
Criminal District Attorney in Grayson County

On March 21, 2020, 21-year-old Emilia Gunnels left her parents’ house in Sherman to spend an evening with two coworkers. Earlier in the week Emilia had agreed to hang out with Joe Toscano and Ebby Wade at Wade’s apartment to play video games. The three worked together at a FedEx distribution center. At some point in the evening, unknown to Emilia, Joe texted Wade to say he had messed up his schedule and could not make it to their get-together.

            Emilia never came home that night.

            By the early morning hours of the following day, Emilia’s mother was frantically texting and calling both her daughter and Ebby Wade. Emilia never responded to the calls or texts, and her phone went straight to voicemail. Wade told Emilia’s mother that she left his apartment around 9:00 p.m. to return home.

            Emilia’s family contacted the Grayson County Sheriff’s Office to report her missing, and family members began immediately searching for Emilia’s car. A 911 dispatcher contacted Emilia’s cell phone carrier and discovered that Emilia’s phone last pinged at 8:55 p.m. the night she went missing. The ping came from a tower near Ebby Wade’s apartment. Within an hour of the initial call to the sheriff’s office, Emilia’s car was found in a nearby apartment complex, just down the road from Wade’s apartment. When deputies arrived, they immediately began canvassing the complex and located a doorbell camera that captured Emilia’s black Nissan backing into a parking space. The person parking the car appeared to be a man, who exited the car and locked the door. This man had a subtle but distinctive limp.

            Within hours, sheriff’s investigator called a K-9 officer to the scene. A bloodhound scent tracker named Red was given a hairbrush from Emilia’s car to establish a known scent. The K-9 immediately tracked Emilia’s scent and quickly located the fob for Emilia’s car keys on a nearby highway. The keys were in a direct route to Wade’s apartment, just a third of a mile down the road.

            By that evening, investigators contacted Wade and conducted a non-custodial interview. He claimed Emilia has been at his apartment to play video games and that their coworker Joe was supposed to be with them, but he never arrived. Investigators asked about the nature of the relationship between Wade and Emilia. Wade said they were just friends but admitted he was sexually attracted to her. Wade claimed she was not interested in anything more than friendship, and he denied they had ever had sexual relations. 

            The next morning, investigators continued their work: interviewing Emilia’s family, sending preservation orders to Facebook for Emilia’s and Wade’s Facebook records, obtaining search warrants for cell phone records, and obtaining surveillance videos from dozens of nearby businesses. Meanwhile, a street crew working for the city was out checking bridges to clear debris due to recent rain when a worker discovered the partially nude body of a young woman.  The body was positively identified as Emilia.

            Investigators invited Wade to the sheriff’s office for a second non-custodial interview. He again claimed he and Emilia had never had sexual relations and denied having anything to do with her disappearance or death. The investigator’s body camera did, however, capture Wade walking into the interview room with a slight limp. 

            A subsequent autopsy revealed Emilia had died from strangulation. At the request of investigators and per standard practice of the Dallas County Medical Examiner’s Office in a strangulation case, swabs were taken from her vaginal and anal body cavities. Emilia’s Nissan was taken to the DPS Crime Laboratory in Garland, and a latent print was discovered near the trunk release; it was subsequently confirmed to be from Wade’s left index finger.

            In January 2021, the DPS Laboratory confirmed that Wade’s DNA was found on both swabs taken from Emilia’s body. Wade was arrested for murder and placed into custody at the Grayson County Jail. His bond was initially set at a million dollars, but later reduced to $750,000. Wade was unable to post bond and was detained pending disposition of the charge.

The long journey

Shortly after his arrest Wade hired an attorney (Attorney No. 1). We presented the case to a grand jury, and an indictment was returned for murder. Almost immediately after the indictment, Wade’s retained counsel filed a motion to withdraw, which the court granted. The Court appointed another attorney (No. 2) for the defendant. Within months, the defendant began filing pro se motions and complaining about his court appointed counsel. After about a year and following a hearing about the pro se motions and complaints, the court allowed Attorney No. 2 to withdraw and appointed a new attorney (No. 3) for the defendant.

            A few months into the new representation—because trial was nearing and discovery was voluminous—the trial court appointed a second-chair attorney (No. 4) to represent Wade. The case proceeded and discovery was, once again, delivered to the new attorneys. (The defendant continued to request by handwritten motion to represent himself.)  Following a hearing and the proper admonishment under Faretta v. California,[1] the defendant’s request was granted. The defendant represented himself for six weeks, during which time the State provided all his discovery on an external hard drive, along with a computer in the jail. In addition, the State arranged on several occasions to permit the defendant to inspect the autopsy and crime scene photographs at our office. Eventually, the defendant requested his attorneys be put back on the case.

            Despite the new counsel, the defendant continued to file pro se motions. The handwritten motions were often mailed to the court and not served on the State or even filed with the district clerk’s office. Wade filed motions challenging the legality of many issues, including his arrest, the issuance of search warrants, the subsequent Facebook search warrants, etc. He also filed a multimillion-dollar lawsuit in federal court (also pro se) claiming his arrest was unlawful and unjustified and that his civil rights were violated by the sheriff’s office, the Texas Rangers, several judges who signed numerous search warrants and his arrest warrant, and the prosecutors handling his case. However, because the defendant failed to serve any of the defendants, the civil suit did not proceed. (The suit had no impact on the prosecution of his case.)

            One of his new attorneys filed a Motion to Suppress Evidence and a Motion to Recuse the District Attorney’s Office from the case. The defense was seeking to suppress evidence that the State had already told them would not be presented to a jury. The court set the matter for a hearing, which became very heated, particularly when defense counsel accused both the prosecutor and lead investigator of violating the defendant’s rights as it related to a defense request to inspect the defendant’s cell phones. Almost immediately after the court’s ruling, which denied both the suppression and recusal motions, one of his court-appointed attorneys filed a Motion to Withdraw. The State had prepared the case for trial in January 2023. The trial was continued and Attorney No. 4 was allowed to withdraw from representation.  Appointed counsel (No. 3) was still hanging on and another attorney (No. 5) was appointed to assist No. 3.

            The State announced ready in May 2023; however, the defense was granted a continuance. By June, Wade once again requested to represent himself and, following a subsequent Farretta hearing, the request was granted. Our office continued to provide discovery, filings, and motions to both the defendant and his attorneys. Arrangements were also made for the defendant and his counsel to inspect evidence in our office if requested. We provided defense counsel with all communications from the defendant, including those to our office, the court, and anything filed with the district clerk. These communications were handwritten letters, often in the form of motions and requests for and complaints about discovery. Our goal was to ensure defense counsel was kept abreast of all the defendant’s filings and any responses from our office.

            The defendant filed additional pro se motions, including a Motion to Continue the third pending trial setting, complaining that because he now elected to represent himself, he should be granted a continuance to review discovery and develop trial strategy. But on September 6, 2023, the Court of Criminal Appeals handed down a decision in Huggins v. State.[2] The Court noted that appellant Noel Huggins did not have the right to repeatedly alternate his position on the right to counsel and to delay the trial; Huggins did not meet his burden of showing that the withdrawal would not interfere with the orderly administration of court business, result in unnecessary delay or inconvenience, or prejudice the State.

            The timing of the Huggins decision was perfect. During our final pretrial hearing, we cited Huggins and reminded the court that “an accused’s right to represent himself or select his own counsel cannot be manipulated so as to obstruct the orderly procedures in the courts or to interfere with the fair administration of justice.”[3] The Court agreed with the State’s position and denied the defendant’s last-minute request for a continuance. 

            The State announced ready on October 16, and the case proceeding to a jury trial. The court had Attorneys Nos. 3 and 5 attend as standby counsel. We conducted voir dire and spent a significant amount of time on the issue of self-representation. It is common practice for our office to spend a few minutes of every voir dire discussing the various rights of the defendant (right to remain silent, right to confrontation, right to a trial, etc.), which allows the State to control some of the narrative regarding the defendant’s constitutional rights. In this case we discussed the defendant’s constitutional rights to self-representation in detail. We did so in the context of explaining that I, lead counsel, have more than 20 years’ experience as a prosecutor and my second chair, Kerye Ashmore, has been a prosecutor for over 40 years. We asked the jury if they would expect us to conduct the trial of this case any differently simply because the defendant chose to represent himself. We also explained that despite the fact the defendant made a decision to represent himself, the State still had the burden of proof and still had would still be calling nearly 40 witnesses and presenting nearly 300 trial exhibits. Jurors overwhelmingly agreed that the defendant was making a poor decision to represent himself and that the State should prosecute the case just like any other trial.

            Following jury selection, we began presenting our evidence. By the end of third day, the defendant told the judge he no longer wanted to represent himself, and his standby counsel took over. We believe the defendant finally realized exactly what we had promised all along: a very strong circumstantial evidence case that was starting to stick like Super Glue. Standby counsel took over and the case proceeded for another day and a half. The State appreciated the court’s position of having standby counsel attend the entire trial and ordering them to assume the job of lead counsel once the defendant threw in the towel on representing himself.

            The trial lasted just over four days. After closing arguments, the jury deliberated for about six hours before returning a verdict of guilty on the murder charge. The defendant immediately requested, once again, to represent himself during the punishment phase of the trial, and the judge granted his request. The State had very little evidence in punishment, other than reminding the jury of the horrific nature of this crime. Just like we told Emilia’s family from day one, this case was always about a guilty verdict. We had no doubt what a Grayson County jury would do if we got to punishment. The defendant, however, got up during his opening argument and told the jurors they “got it wrong”—an assertion that allowed the State to follow up: We pointed to all 13 jurors (included an alternate) and reminded each person, “You got it right, and you got it right, and you got it right …” until we had confirmed that every juror reached the correct verdict of guilty. Following a much shorter deliberation, the jury sentenced him to life in prison. 

            In a subsequent hearing, the defendant advised the court he desired to represent himself on appeal. That appeal is pending.


Emilia Gunnels came from a very large and close-knit family. Her mother and father raised six other siblings, and all eight members, plus a few friends and in-laws, attended each and every day of trial. Upon the guilty verdict and subsequent life sentence, we could sense a tremendous burden has been lifted from the family—at long last, their 31⁄2-year wait for justice had arrived.  During the course of more than three years, we had meetings with the family to discuss the defendant’s arrest, his indictment, pretrial hearings and procedures, and just general meetings to discuss trial strategy. We also spent a significant amount of time preparing this family for each and every trial setting, as we called at least four family members as witnesses during the trial. The testimony of Emilia’s mother, father, sister, and brother were extremely emotional parts of the trial. There was even one point where the judge had to dismiss the jurors while the Emilia’s mother started crying during my direct examination about the night her daughter didn’t come home. She had to take a minute to compose herself.

            A very wise prosecutor once told me to “think with my head and not my heart.” It is good advice to avoid both emotional decision-making and empathy fatigue, but that advice was hard to follow in this case. Despite what I knew was best for me as a prosecutor, my heart simply could not help but hurt for this family and what they had been through. Our whole trial team developed a relationship with the Gunnels family, which we anticipate will continue forever. 

            The ruling in Huggins had a direct impact on our ability to finally move this case to trial. The decision is important for courts, prosecutors, and defense counsel. No longer will vociferous defendants be allowed to delay justice, so long as their rights are properly safeguarded.


[1]  422 U.S. 806, 835 (1975).

[2]  Huggins v. State, No. PD-0590-21 (Tex. Crim. App. Sep. 6, 2023).

[3]  Huggins citing Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976).