Goffney v. State
843 S.W.2d 583
Tex. Crim. App.
1992
Check Treatment

*1 Cr.App.), denied, ques appear cert. 107 son to nervous detained (1986), by police overruled tioned officers. Glass (Tex.Cr.App.1984). other grounds, on Juarez v. 758 681 n. (Tex.Cr.App.1988). appellant’s There is no evidence particularly Such conduct is not odd in likely an significantly behavior to be is airport people running where are often drug gen exhibited traffickers late, may be uncertain as Crockett, population. eral be, appropriate gate may or concourse or at 313. might planned to they have meet someone is may may or appel not know. The fact that reversed cause is and this remanded did not at the stop lant ticket does counters trial court. apart not set him from pass other innocent J., dissents, CAMPBELL, believing that engers.10 appellant officers, told the the initial dеtention this ease constituted expected he to meet someone who was to pursuant no more than an “encounter” arrange have his ticket. While such an — Bostick, U.S.-, Florida v. unusual, ment be there was no evi (1991), thus the arrangement dence such is indica petition improvidently granted in was drug trafficking. is certainly

tive It first instance. to stop airport within norm and ask WHITE, J., Campbell’s joins Judge note. personnel gate flight in directions or average passen formation.

ger may wearing heavy not have been morning,

coat on that it was not so out of clearly norm conclusively as to or set

appellant apart from passen an innocent Crockett,

ger. See at 311.

Airport passengers are in transit to a mul varying

titude destinations with cli GOFFNEY, Larry Appellant, mates. A departing passenger wearing a may simply preparing coat be for colder STATE time during stay weather at some their their destination. The fact that 699-91, ‍​​​​​‌​​​​‌​​​‌‌​​‌​​‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌​​‌‌‌‌‍Nos. bag companion handed his his traveling Court of Criminal placе conveyer magnetome on the at the anything ter not indicate out of the ordinary may merely ges have familiarity. Although appellant ture traveling

stated that he Antonio to San though

on Airlines Northwest even no flights Northwest Airlines to San possi

Antonio at it day, that time is

ble that had confused Northwest Airlines,

Airlines with Southwest appellant’s

San Antonio was not immediate

destination, but was his destina ultimate single appel

tion. This inconsistency questions responses

lant’s to the officers’ drug trafficking.

does not indicate It is beyond per norm for

not an innocent bypassing boarding pass, they One of the officers testified that whether need to check in suspect the ticket counter was because “most luggage, plane their on time or counter, passengers approach try- will the ticket departed.” whether or not has they find out whether need obtain a

OPINION ON FOR STATE’S PETITION DISCRETIONARY REVIEW BENAVIDES, Judge.

Appellant driving was convicted of while unlawfully carrying intoxicated and a See, weapon. TEX.REV.CIV.STAT.ANN. (Vernon Supр.1991); V.T.C.A., art. 6701Í-1 Code, Appellant Penal Section 46.06. counsel ‍​​​​​‌​​​​‌​​​‌‌​​‌​​‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌​​‌‌‌‌‍and and was tried convicted by jury. punish The trial court assessed days ment of 90 confinement and a $100 fine for еach offense. The Waco Court of Appeals Goffney reversed the conviction (Tex.App. 812 S.W.2d 351 — Waco 1991). granted (1) We review to determine whether the erred in hold- that, ing when represents a defendant him- self, reversible error will result if the rec- appeal ord on does not include statement substantially sug- in the same form as that gested by V.A.C.C.P., 1.051(g), Article (2) whether the Court of erred in failing presumption regular- ity judgments to these and to conviction proceedings. The sole represеntation references to the Appellant appear the docket and the sentence. The dock- merely ap- et sheet states the defendant se, peared pro waived counsel and waived the record. The and the sen- “knowingly, tence state that the defendant voluntarily question to counsel.” The before this language Court is whether this is sufficient requirements to meet the of Faretta v. California, 95 S.Ct. (1975) or of We language hold the insuffi- cient and affirm the In order to sеlf-repre- invoke the sentation, a defendant “should be made aware of the Waco, Jaynes (court-appointed), Mark self-representation, sо that the record will appellant. establish that ‘he knows what he is Segrest, Atty., Lyle John W. Dist. V. and his eyes open.” choice is made with his Waco, Gripp, Atty., Asst. Dist. Robert Hut- Farettа, 422 U.S. at 95 S.Ct. at 2541. tash, Austin, Atty., State’s for State. we stated in v. State: does not in- mandate an quiry concerning appellant’s age, edu- cation, background previous prior any finding know mental history in every health instance expresses represent accused a desire to recog analogy fails to dant. State’s himself, Martin v. inquiry of nize thе fundamental *3 (Tex.Crim.App.1982), 954 the record Supreme The of the and the Court. focus must contain admonishments analysis when a defendant asserts concerning pro representation and se rights solely on of is not any necessary inquiries of the defendant of the actual was an the so that make an as- court counsel, right instеad whether the to but knowing sessment of his exercise the of dangers defendant was aware the Faretta, supra, defend to himself. self-representation. disadvantages of 836, 422 at 95 at U.S. S.Ct. 2541. agree unable ... is] [This 578, 673 (Tex.Crim.App.1984) 583 recog- applied there should be “the well added).

(Emphasis rule court nized that the actions of a trial Clеarly, presumed are to be valid.” Su- mandatory,1 is not “record preme Court insistence that the must reviewing be sufficient for the court repre- one will establish” that who would to make an assessment that the defendant himself sent “knows what he is dangers was made aware of the and disad open” eyes and his choice is made with vantages of the self-representation. John charges responsi- the trial court with the State, 277, (Tex. son v. 760 S.W.2d 279 bility making a record. Faretta, Crim.App.1988); supra. also, Martin, 954; 4 630 S.W.2d ‍​​​​​‌​​​​‌​​​‌‌​​‌​​‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌​​‌‌‌‌‍n. at Presuming waiver from a silent record State, supra. Johnson v. show, impermissible. record must responsi The State also contends is the allegation or there must be аn and evi bility party request the a record show, dence which must that an accused proceedings the Rule under TEX.R.APP.P. was offered counsel but true, prior 11. this is act of understanding^ rejected Any the offer. defendant, self-representation by the the thing is not less a waiver. record should reflect that the admonish Cochran, 516, Carnley v. 369 U.S. 82 givеn the ments were defendant. Had 884, 890, (1962). S.Ct. 8 L.Ed.2d 70 appropriately giv the admonishments been absence of evidence of admonishments be en, complain the defendant could not now ing given to the defendant fails to the meet appeal. of a record on Haw absence requirements of Faretta Johnson. State, (Tex. kins v. State, nevertheless, contends State, Crim.App.1981); Martin v. “presumption regularity at 956. The of evidence of absence judgment” trial court’s should being to the just pre cases of waiver of counsel as the requirements of dant fails to meet the sumption applies in jury trial. Faretta, Supreme Court. U.S. at When a recites that a defendant 2541; Johnson, at writing has in and in open court waived a 279. trial, jury presumed recital is sufficient Because record not contain validly to establish that thе defendant dangers admonishments of the disad- by jury, absent vantages required of self-representation as showing contrary. Vega affirmative to the Faretta, we аffirm State, (Tex. v. 707 S.W.2d 558-559 Rehearing). Crim.App.1986) (Opinion on argues judge State that because the MILLER, Judge, dissenting. found the defendant and intelli counsel, gently ad As the author of this Court’s (Tex. presumed monishments should be to have S.W.2d 578 (Tex. Burgess Crim.App.1991). 424, 431 comments, Crim.App.1984), compelled I respectfully feel to com We these dis- “[bjecause ment. The majority holds that sent.

the record does not contain the admonish WHITE, ments of the and disadvantages J., opinion. joins required by California, 422 [v. (1975)],” defendant is p.

entitled to a At new triаl. adhere pronouncements in Blankenship, opinion, even the that a defen

dant must be admonished as to the in CHAVEZ, Appellant, Edward Munoz order to make an in rеgard. this cause dissent in because I adequately believe reflects such ‍​​​​​‌​​​​‌​​​‌‌​​‌​​‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌​​‌‌‌‌‍STATE of given. admonishments were No. judgment case in this reflects that Criminal intelligently to counsеl ...” That con- judge, my opinion, clusion in

implicitly incorporates the notion that the properly

defendant was admonished before

waiving attorney. to an In other

words, the waiver was made

because the defendant was warned of the

risks of and consciously

weighed them. expressed by concerns the majority

opinion would be satisfied somewhere in record, judg- be it the docket

ment, etc., (rather expressly it was stated reflectеd) implicitly

than that the admonish- given.

ments majority appears were something want a recitation “intelligent” in

of the trial court. I find the recitations in judgment ‍​​​​​‌​​​​‌​​​‌‌​​‌​​‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌​​‌‌‌‌‍adequately reflect properly admonished and his Sixth

Amendment protected. however, reiterate, judges Blankenship,

should follow the rules judge in

apparently did the trial this cause. only question

It becomes of whether the

wording sufficient to

specifically reflect under the au-

were mind, today. my only pur-

thored In

pose reciting “intelligently knowingly”

waiver was

made is to reflect the admonishments given.