Johnson v. State

is af- of the trial court judgment The

firmed. J.,

TEAGUE, dissents. J.,

MILLER, participating.

Thomas & Robert Carl JOHNSON Stapp, Appellants,

Darnell Texas, Appellee. STATE

No. 499-83. Appeals Texas, Criminal

En Banc.

Nov.

urge of counsel is not mooted be they in proceeded pro cause se. fact played appellants Because a cru in their the trial cial role trial and court acknowledged pro se, proceeding were agree disagree, with appellants. we We however, with the manner which the appellants arguments rest their State Preston, Dallas, George appellant. A. for on the issue waiver of counsel. When a rights, analy defendant asserts his Sutton, Junction, Atty., Ronald L. Dist. must center sis not on a traditional waiver Huttash, Atty., Robert State’s and Cath analysis, but on whether the Riedel, Austin, Atty., leen R. Asst. State’s dangers aware of the for the State. disadvantages selfrepresentation. Thus the focus of a court’s admonishments wishing of a defendant se is ON APPELLANTS’ PETITION OPINION on the assertion of FOR DISCRETIONARY REVIEW right to selfrepresentation. Such is the selfrepresenta focus because the CLINTON, Judge. pow tion does arise from the accused’s appellants’ dis- petition Before us on er to waive the of counsel assistance but cretionary review are for bur- convictions independently from the Sixth glary, Antonio affirmed the San Court grant personally accused Appeals published opinion.1 in a defend. Faretta v. U.S. appellants’ for dis- granted petition We (1975). cretionary review to whether the determine State, Accordingly, in finding appellants Martin appeals erred in court held (Tex.Cr.App.1982) S.W.2d 952 we Far- knowingly waived their “inquiry does not concern asserting etta mandate right to counsel while education, background, ing appellant’s age, represent themselves.2 previous history” every or mental health State, argues The State Maddox v. expresses instance where an accused a de (Tex.Cr.App.1981)controls be S.W.2d 275 himself, for the record sire representation hybrid of a cause the may for the otherwise be sufficient question no nature and therefore there is “ ‘an to make assessment of en relied of waiver counsel. Maddox ” exercise of the to defend himself.’ Phillips tirely on 604 S.W.2d Faretta, at 95 S.Ct. (Tex.Cr.App.1980)wherein the Court stated Martin, at 954. cited in partially himself in “appellant represented assessment, case, require fully represent To make this we no this was also [but] Thus, questioning[,]” “no question litany, of waiver formulaic ed counsel. no reasoning Blankenship of counsel is involved.” This case, (Tex.Cr.App.1984), apply to the because but defendants must be does not instant represented appellants fully were not “aware Rather, self-representation, so that record appellants put on their defense, what he is as establish that ‘he knows

entire while their will eyes made with them, doing the bal choice is signed to assist conducted ” basis, States, appellants ex trial. On rel. open.’ ance this Adams v. United (Tex.App.— appeals was not called them. The 1. Johnson v. S.W.2d 324 1983). however, neither, matter, San Antonio this to decide therefore, shall we. Lambrecht consider, Further, appellants urge us to as (Tex.Cr.App.1984). S.W.2d 614 error, unassigned they were denied whether assigned to fair trial because assist counsel was consti McCann, (1975),establishing independent Faretta, cited self-representation. 87 L.Ed. Jus tutional 95 S.Ct. at 2541. General- warned us of Blackmun in his dissent tice for the ly, the record must be sufficient the de procedural difficulties and of reviewing court to make an assessment not, He did signs on the road ahead. tour knowingly exercised his appellant however, many. so tell us there would be himself. Admonishments to defend fairly The construction of Faretta pro se proceed who wish to of defendants phase the second smooth and uniform until an effort to ensure that the should include began Although in Texas. of construction practical of the disad- defendant is aware in Texas was early days in construction vantages representing himself. The de- jurisdictions, in most other like that should aware that there are fendant be method, introduction of a new construction procedure, technical rules of evidence and interpretation a new [Martin granted any special and he will (Tex.Cr.App.1982) ], has kept S.W.2d solely consideration he asserted because resulting in raised on occasion the dust Martin, Burton rights. supra; his method of (Tex.Cr.App.1982). silentio return to the former 634 S.W.2d 692 sub Faretta, supra, held, eyes [see, e.g., Funderburg v. As his should be construction that, open to the fact it is undoubted- while State, (Tex.Cr. 641-642 a ly right, he is about to embark on App.1986)]. With the use of Martin risky course. majority engineers this Court’s has thus bumpy, dusty annoy provided a road with bar, the court ex the case at plained range punishment appel ing for the bench and bar to vibrations lants, the added admonishment follow to reach Faretta. signs The road subject life Johnson that he was to a sen during sending erected construction are out, pointed tence. The court also albeit a today signals to all concerned. And mixed indirectly, rights bit there are “certain Martin. again utilizes majority _ non-lawyer a would be unable to ac Although I reach the same result in the complish.” judge The underscored the majority, I reach it instant case as does by insisting present risks counsel be to act However, I reasons. would for different advisory capacity. Appellants in ac overrule Martin progeny, and its and re- Further, quiesced arrangement. to this interpreta- generally turn to the uniform Appellant Stapp court asked if he felt com tion of (regarding the waiver of petent to conduct crossexamination of the admonishments, counsel) witnesses. After these prevails appellants told that no the court evidence throughout nation. following day, would be received until the Stapp sepa- Appellants Johnson and were they hence would have time to contact addi burglary of- rately indicted for the same counsel if so On the tional wished. They jointly tried and convict- fense. were day, appellants following both reiterated Stapp’s jury. jury ed The assessed desire to without counsel. imprisonment. punishment years’ Viewing entirety, in find the record its we found that Johnson had been jury The also appellants knowingly exercised their prior non-capi- previously convicted of two themselves, and, doing, in so to defend punishment alleged. as His by tal felonies relinquished representation benefits imprisonment assessed at life then was the court in accordance with law. judgments are affirmed. Code, 12.42(d)(1974), in V.T.C.A., Penal § MILLER, J., concurs in the result. joint trial. effect at the time ONION, concurring Presiding Judge, urged appellants jointly appeal On both dissenting part. in part alia, briefs, inter separate reflect that trial court fails came Faretta v. 422 “record Along de- and warned the adequately questioned S.Ct. Gillies, 708, 723-724, Moltke v. fendant about his Sixth attorney,” citing [(1948)] to an Faretta. 92 L.Ed. Black, J.). (plurality opinion Although rejected Appeals The Court of this and need not himself have the a defendant appeal and af- points other of error on experience lawyer in order Johnson, skill and of a firmed the conviction. et al. (Tex.App.-San Anto- competently 653 S.W.2d 324 to choose 1983). nio made self-representation, he should be dangers and aware of the discretionary joint petition In their self-representation, that the record so urged appellant in their first review the Ap- ground of review that “The Court establish that ‘he knows what he is will finding an effective peals erred doing and his choice is made with appellants Johnson and of counsel for ex eyes open.’ v. United States Adams petition to deter- Stapp.” granted We McCann, 63 S.Ct. at rel. Appeals erred in mine the Court of whether 242.” finding appellants knowingly and that the it has In the wake of Faretta been intelligently right to counsel waived by the assertion new unanimous view that right represent asserting their to while right self-representa to an accused of his themselves. dependent, part, upon in a waiver of tion is appellants’ It contention that the trial is right his to counsel. In Note: Criminal inadequately questioned and warned Right To Proceed Pro Se: Procedure — The Amend- appellants about their Sixth Gymnastics the Sixth Judicial With right attorney. They rely upon ment to an Amendment, Law 54-2 North Carolina California, Faretta v. U.S. (1975/1976), it stated: Rev. S.Ct. California, made held that the Sixth Amendment as in Faretta v. a divided “... without counsel when he intelligently elects to do so. applicable and that he constitutional a state In tual defense, fits associated with himself, For this quished “When an accused Faretta, matter, many of the traditional bene- ^[458] [82 intelligently’ criminal trial has an benefits. Johnson to the states he reason, L.Ed. 1461 may proceed guarantees that a defendant in relinquishes, right supra, 464-465, accused must in order to of the Court wrote: forgo those relin- by self-representation (1938)]. his own manages to defend right as a voluntarily and the Fourteenth independent Zerbst, purely fac- ‘knowingly to ^[1019] Cf. counsel. himself Von (1976), it was written: gent resentation is a counsel. United States right In Recent cating tached have a constitutional er cally held that state criminal defendants basis (Emphasis supplied.) “The absolute se in the fundamental counsel.” upon a the exercise 4 Hofstra Law Rev. This odd representation Developments free Supreme Court prerequisite to (Emphasis knowing and intelli- right of one constitutional of another—finds circumstance— right knowledge waiv- to assistance importance at- — Faretta by supplied.) to unequivo- counsel.” 449, 453 self-rep- predi- its quote representation The for pro se via dictum. observed that all three cases 1. It should be here right quote the above dealt with known is as follows: "But cited in which Adams is best of counsel. Johnson v. lawyer upon waive the assistance Zerbst, does not force a the Constitution leading supra, case on the waiver is the may He waive his Constitutional defendant. right The main issue in to counsel. right of counsel if he knows what to assistance validity of the waiver of Adams was the eyes doing and his choice is made with right, e.g., trial affirmative constitutional 458, 468, 469, Zerbst, open. Johnson jury, of counsel to absence of the assistance 1461.” Clear- 82 L.Ed. consequences of advise the defendant of the Zerbst, supra, ly upon Johnson v. Adams relied Court, however, Supreme such a waiver. support statement. of its now well-known right outlined its views on nevertheless In participation Recent Cases: Criminal La w —De ed the unsolicited of stand- Has Right Constitutional To De by opinion In counsel. the Court fendant Himself, 41 Missouri Law Review wrote: fend 431, 434, it was written: “In Faretta the Court considered the case “Although of a the decision in criminal defendant Faretta who was present rests on a substantial constitutional foun- his defense exclusive- opinion unquestiona- dation the Court’s ly through counsel. The Court held that bly pro- deficient in its discussion of the an accused has a right Sixth Amendment aspects cedural a defendant’s to conduct his provided own defense reason, defend himself. For this a sub- only that he knowingly intelligent- impact stantial may well be ly forgoes to counsel and that procedural difficulties entailed he is willing able and to abide rules of judicial right. administration of this procedures and protocol.” courtroom procedural problem “The initial will (Emphasis supplied.) undoubtedly involve a determination interpretation Federal courts in their that the has ‘knowingly and concluded Faretta have that a defendant intelligently’ waived his a criminal case is entitled to assistance counsel.... clearly if he self-repre- asserts his “Past Supreme decisions of the knowingly sentation after guidance offer some as to the standards waiving Thus, to counsel. applied to be when a defendant wishes to constitutional waive his Johnson necessarily a entails waiver of the constitu- 458, 1019, v. Zerbst U.S. 58 S.Ct. 82 [304 right represented tional to be counsel. (1938) L.Ed. 1461 the Court enunciated ] States, See, v. 553 e.g., Chapman United knowing a test of intelligent waiver, 886, (5th Cir.1977); Meeks v. Cra- F.2d 892 require but it did not that the defendant 465, (9th Cir.1973); ven, Rich- 482 F.2d 467 be made of specific aware difficulties Lucas, 753, (5th v. 741 F.2d 756 ardson attendant particular his defense. Cir.1984). In 708, Moltke Von v. Gillies U.S. [332 Estelle, 171, In Moreno v. 717 F.2d 174 316, 68 (1948) S.Ct. 92 L.Ed. (Opinion 309 (5th Cir.1983), the Court wrote: Black, J.) Justice Black offered a more ] grants “But while Faretta the defend- specific standard that a defense, right ant the to conduct his own apprehension defendant have an of such it cautions that such a decision necessar- specific elements as lesser included of ily requires relinquish the accused to fenses, range punishments, of possi ‘many of the traditional benefits associat- ble defenses in order to make a valid right Faretta, ed with the to counsel.’ However, waiver. because the Von 835, supra, 422 at 2541. U.S. 95 S.Ct. at opinion Moltke adopted by only a Thus, proceed the defendant’s decision to plurality Court, some courts have pro clearly unequivocally se must be chosen not to adhere to specificity expressed after a and intelli- which it (Emphasis supplied.) dictates.” gent right proceed of waiver to See also Note: Faretta v. The California: (Emphasis the assistance of counsel.” Helps Law Help Themselves, Those Who supplied.) Hastings 28 (1976); Law Journal 283 Com- quoted The Moreno Court further from ment: Faretta v. An Exami- California: 607, Wainwright, Brown v. 665 F.2d 610 Deficiencies, nation Its Procedural 7 (5th Cir.1982) (en banc): Rights Columbia Human Law 553 Review “ (1975). right ‘Whilethe to counsel is in force waived, right self-representa- until Subsequently, in Wiggins, McKaskle v. 948, tion does 944, not attach until asserted. In 104 S.Ct. 79 (1984), represent L.Ed.2d 122 order for defendant him- the Court held that a a pro self, right “knowingly se defendant’s Sixth intelligent- Amendment he must counsel, conduct his own ly” forego request defense was not violat- and the must

282 Procunier, Faretta, Wiggins v. 1987); F.2d unequivocal.” “clear 753

be ” (5th Cir.1985).3 835, (Em- 1318 422 U.S. at 95 S.Ct. at 2541.’ opinion.) phasis original Fair, Tuitt v. (1st In 822 166 Cir. F.2d — Weninger, 1987), —, See also United States 108 S.Ct. 624 cert. den. 333, (10th Cir.1980), recently con 163 cert. 98 L.Ed.2d 360 the Court F.2d den. 449 U.S. that all (1980);2 cluded federal courts construe 66 L.Ed.2d 470 Rylander, 714 F.2d 996 Constitution to United States v. to ef require a (9th right before Cir.1983), fectively den. 467 U.S. waive his counsel cert. granted United (1984); being right self-representat S.Ct. McDowell, (6th States con F.2d ion.4 factors to be Cir. And the various 2. phasis supplied.) 1320, wrote: rience and conduct or accused ascertain whether a defendant court must ing assertion ta had held that a defendant tional fend In circumstances the State ly petition petition fairly established L.Ed.2d 562 right to counsel issue on the merits. whether decline to gently. lation between the two tion ly must 756 must, to his assertion resentation was tary, have never theless, Wiggins urges that we cannot be cer court; ‘bright-line’ right a defendant and tain that the waiver was and the court with court ligently method of individual "... “Wiggins’sargument is founded “We are waived, Weninger, Wiggins waive liberally against issue right being given to knowing, do so that intelligent contains it is therefore, counsel was was filed the made, Richardson proceeding. Cir. of his consider Accordingly, the under the his assertion do so now. ascertaining that a convinced clear that voluntarily, principle that in order a criminal test right (1975). case required such a read, supra, 1984). Wiggins Procunier, proper inquiry is to of right right raised the issue waived no as the record from the state in cases of this each the Sixth a trial to counsel has been pro se and including background, expe- unequivocal his we believe that colloquy "the total circumstances to counsel. See Faretta is conditioned intelligent. respect to to clearly voluntary. Due to the close interre- Wiggins that a case as well as the back- A attempt charge pro se knowingly, we judge of his In order to determine counsel, Lucas, supra, rights necessary knowingly fact shall colloquy had between should therefore noted that Faret- right concedes, waiver is volun- is the did person.” has and considera- that colloquy of this issue. 741 F.2d to in the state However, type, consider the to counsel a the constitu- a defendant evaluate the on to effective prerequisite raise his Court, and that to and intelli to himself waive his knowingly and intel Wiggins’s preferred Wiggins’s effective- the well- between a know- effective Wiggins self-rep right and we but below None to de- as he (Em- as a 753, we to p. 4.Since Id. 422 U.S. at McKaskle v. explained 95 self-representation, quoted without an affirmative 753, necessarily ard in stant discussion and illustrates the Cir. (9th Cir.1973); Chapman choice is made with resentation, that ceed relinquished benefits. Johnson v. L.Ed. 1461 J.). Although a defendant need not himself in order to must equivocally "A. ter, many of fense, self-representation, order "The have 332 ed ground L.Ed. 309 exist a United States ing Wash.App. supplied.) S.Ct. 1977); "When 756 the with the [63 F.2d it ^[458] Pro constitutional Whether An allowing 'he knows what on the record the skill and ‘knowingly the conclusion 2525, competently and he (5th recognized v. United States 553 F.2d in Faretta v. only S.Ct. portion of the Tuitt Meeks v. relinquishes, length entails a Se an accused (1948) (plurality opinion of represented the Wiggins, U.S. defendant. of the traditional benefits at (1938) Cf. Von Moltke v. Cir. right 45 L.Ed.2d 562 See and cf. State v. so May rarely ex rel. represent 464-65 Richardson v. a defendant to 835, 95 S.Ct. 2541. See also 723-24 and (1984) 1984). that the record will establish Right from 822 F.2d at ] and Accused to ]. Be waiver of (5th Cir.1976)." (Emphasis Craven, the constitutional experience he should be made absent a will McCann, counsel. For P.2d intelligently’ Required [58 is aas eyes open.’ Adams v. waiver of the manages [68 To As (defendant 87 himself, adequate important S.Ct. Ford v. Who Wants the Counsel purely waiver of S.Ct. L.Ed. 482 F.2d is the constitutional v. Fair colloquy Lucas, Supreme doing of a To Waive potential haz- 422 his 268]. the information factual mat Wainwright, this forgo Zerbst, of the has ‘Sixth opinion Smith, lawyer to the in- to choose 741 F.2d U.S. See, own de 174-177: associat and his counsel. self-rep accused right to show ^[269] reason, indicat To Pro- case in Gillies, Black, aware Court those 806, e.g., 304 Un- 92 82 in to judge urge defendant should not impossible that a defendant’s demand to which which to rights. He waiver of the to mand least, rights F.2d rights are defendant F.2d or do so easily at 611 mand defendants refuse waive criminals would effect until election, constitutional tion stated, ly (9th Cir.1973). sel and has unequivocal. Meeks v. provided only attorney is alternative constitutional Chapman v. United States ex rel. Maldonado upon defendant waives defendant is “Recognizing attack that the denial without asserts his the waiver was Lest there be a clearly such sequences sel. Hence the conditioned on relinquishment “When defendant refuses to waive waiver "The (so being counsel, forgoes trial court will find it hard to know which "A trial “The that was for a ^[12] that there sufficiently is confronted to makes it reasonable to favor the inferred). is (‘In judge a clash reflection, waived, equivocally, which, a proceed pro he defendant, explaining did not a asserts election upset unskilled clearly waiving at 15-16 helpless. See asserted. while situation_ judge trial the had opted should in effect until right to conduct his own United right should right of rights that he collision, his trial se, quite likely right absence (5th Cir.1982). the burden on trial courts right defending pro se. The reason an remains adverse verdicts after trials if especially should improperly to been court. The Fifth Circuit understand what he was these demanding always clear that if it is be right the to defend is to conduct his own to and with new is case denied, with in the law has waived coun- not States, to can create a difficult situa- [2nd Cir.1965]. engage while also that, his to be right Ninth Circuit has Brown v. given being knowingly try se 'knowing represented counsel’). or two the nature of the some a conflict between able to turn about be Craven, should in which has right right his own case. Wainwright, right An to mount a collateral otherwise, plea, a clear represented self-representation is to defend since asserted, quickly leaves a presented denied mutually in waived, a pro se to proceed pro se be ‘unequivocal’ question ready problem 'unequivocal’ de would be right to Wainwright, asserting right a to him the con- Where the proceed pro claiming F.2d at 892. be, to counsel.... 482 F.2d 465 dialogue intelligent), a a by counsel.... granted the Denno, infer at the se is right entails to intelligent- and which intelligent’ pro while ‘convicted defendant tool with The exclusive is not in counsel.’ defense’; with whether defense, average when a counsel Later, that a error) either doing se coun- when to an more right very F.2d trial and two two and two has the the de (so an se, to unconstitutionally nied. In court, The Fifth Circuit this case the had been ant’s but after all the evidence closing arguments, proceed pro se because he was not satisfied with grant his counsel. that he and the defendant quest difficulties. Cir.1982), prior to voluntary fore ascertaining to trial court faces the difficult The D.C. Circuit permission nett, ter defendant, (D.C.Cir.1982). See two viable ant must deprived sel because 'the District Court failed to elicit an defendant’s] effective waiver district on the claim Circuit has sought, against quent Meeks, ant United States “In vide counsel if defendant’s "Similarly right was Whereas before Faretta sentation upon "The siderations ta, of his to be anteed rationale for or that the court should to record an court rules. nado v. without counsel self-representation self-representation. proceeding pro may try conflicting 539 F.2d trial_ right made judge the motion.’ to Brown before he claimed his cases. (D.C.Cir.1982), position’ record Ninth Circuit’s courts, is, 482 F.2d whipsawed the other has been borne out him.... and succeeded in proceed right his of his Sixth Amendment error no matter which impermissibly clearly as the Denno, to ‘competently and is also bound if it said, habeas the constitutional whether recognizing request to rejecting In United States v. traditional The to self-representation of the proceed pro appeal, to counsel in the placing trial courts This when Wainwright, appears constitutional grant a (en banc) Supreme equivocal request pro play We Bailey, attorney presented struggled denied, trial in trial Later, counsel before corpus United defendant renewed 467-68. also United States right future, to there (10th Cir.1976) (The can the se. is ‘one which the defend- claimed that he the defendant defendants clever it. It ended fear that a trying to reconcile these unequivocally F.2d at one constitutional a Id. at 1300. court was 'reluctant the defendant asked to necessary denied. judicial the trial courts' ‘unen- was in request counsel told the court expectation find no constitutional the focus of the stating, This obtaining' the court’s to have held that the defend- being appeal States se. Id. at 1297. Af is an had mightily related self-representation constitutional con- 665 F.2d 607 and intelligently.’ attempted F.2d to inadequate, necessity warn defendants request rights, the D.C. coerced Bailey, and put resolved had not been convicted, canny choice counsel.’). belief ex rel. Id. at 609-11. We affirm way the himself.’ granting in up because the problem to just it of a self-repre- assert be- a with this ‘earnestly requiring the had been 675 F.2d was de- position proceed counsel defend enough federal that in to his re- Maldo- before subse Faret- judge coun guar- case, right Ben- now trial pro- [the Id. in to case, present judge— trial "In the state the seeking to rule that the follow the established unequivocal the absence a clear and waiver affirmative, right proceed pro to se an entails defendant, by deprive a court should not de- right knowing intelligent and of the to waiver right fendant of his to counsel.’ Id. at 612 thought proper unequivo- it to seek an added). (emphasis counsel— cal, express right Israel, of the to counsel as a (7th Cir.1980), waiver "Wilks v. 627 F.2d 32 granting prerequisite to to defendant’s motion potential illustrates the lowing hazards inherent in al- represent Supreme represent himself. The Massachusetts a defendant to himself without securing approved approach. unequivocal right first an Judicial Court his waiver his This attorney. sought approach Required to an The defendant there to the the Ninth Circuit Craven, discharge court-appointed attorney, stating his F.2d Given the diffi- Meeks 465. represent necessary. culty fully that he would himself if that can ensue if a waiver is not grant established, The court was reluctant to the dismissal nothing wrong a we see in such finally agreed but to allow the defendant to requirement. present day his own case. On the first of sense, is, right para- "The to counsel in a the changed the defendant told the court he had denied, right; wrongly mount if defendant attorney represent mind and now wanted the to injured likely seriously denied to be more than if attorney up him. The conducted the defense to Accordingly, right proceed pro we to se. including examining the defendant on the requiring express think that an waiver of changes again stand. The defendant his mind right recognizing the latter is a former before allowed, sought, and was to dismiss his Certainly procedure. defensible we do court-appointed attorney, although attorney agree petitioner that as soon as he stated stand-by remained as a counsel. On a habeas se, court that he would rather court, petition to the federal the defendant un- granted request without further should have successfully claimed ‘he did not waive his simple inquiry. statement Tuitt contends that a right repre- to counsel but instead insisted on as, go pro such ‘I’d rather se than have this attorney; sentation an that the choice of- attorney,’ court-appointed mat- is sufficient as a fered him—either or [the self-repre- require granting to ter of law court-appointed attorney] placed him in an un- — any waiver sentation. He contends that further position deprived tenable him of his free impermissi- requirement is an unwarranted choice; and that the court should have ordered constitutional ble burden on the defendant’s attorney] representation to [the continue his right As our discussion of to himself. Wilks, petitioner.’ 627 F.2d at also however, shows, judge law had the trial the case Lucas, (5th Cir.1984) Richardson v. 741 F.2d 753 pro granted request to without (claim inadequate waiver of Sixth Amend- which to demonstrate a basis in the record form rejected ment to counsel where defendant knowing counsel, intelligent waiver of the sought court-appointed had dismissal of attor- ap- he would have been vulnerable on ney; emphasized Fifth Circuit need to find a peal the defendant’s Sixth to the claim that waiver). voluntary counsel was violated. foregoing “It is clear that all from federal circuit, we eschew formalis- Even in this where require courts construe Constitution to a waivers, accept simple refused to a tic we have effectively waive his to coun- go showing request pro that the se as itself being granted self-represen- sel before knowing intelligent. waiver of counsel was practice tation. While the varies as to the form Meachum, (while Maynard 545 F.2d at 279 warnings language, and waiver there is no simple request to find that the re- question sufficient that actions and words sufficient to quired attorney voluntary, a re- demonstrate a alia, whether, necessary inter mand to find to counsel tire deemed essential. intelligent). To be waiver was "The courts of the Commonwealth Massa sure, adopted adopted position generally alterna- chusetts have the trial court could have sim courts, courses, rights explaining partic ilar to that taken such as Tuitt’s federal tive Massachusetts, making inquiry fully, ular the Ninth Circuit. as it deemed it has such of Tuitt long hoping appellate been held that ‘once the defendant has sufficient and then timely unequivocal request' pro made a infer from the record a sufficient waiver. would se, ceed the trial court should conduct some all But we do not think the Constitution limits inquiry sort of order jurisdictions just approach. to ascertain the defend one We see no (so asserting Massachusetts, ant’s reasons for as to be why to avoid confusion reason request voluntary, simply courts, sure the is and not the among may the its not insist that improperly requiring result of a trial court a express go pro upon an and se be conditioned attorney defendant with an that is unequivocal of waiver him, unfit to defend see Commonwealth v. Ca “We conclude that the state was enti- 46, (1976)), vanaugh, Mass. 371 353 N.E.2d 732 require express tled to waiver Tuitt from of and to make sure that the defendant is of aware allowing the to counsel Tuitt to before proceeding pro the risks of se so that the waiver proceed pro (Emphasis supplied.) se" knowingly is and made. Common 260, 265, Chapman, Mass.App.Ct. opinion wealth v. 8 quoted All of the of footnotes the 1213, (1979); omitted, portion 392 N.E.2d 1217 Commonwealth above have been but a of foot- Mott, 47, Mass.App.Ct. p. following v. (1974). 2 308 N.E.2d 557 note 3 at 176 the discussion of (Footnote omitted.) Israel, supra, Wilks v. reads:

285 Cir.1972). (5th age, States, F.2d process in the such as 457 657 sidered back etc., waiver must ensure that the experience, The court ground, education and or mis Martin, the result coercion v. not discussed in States were United defendant, the Blasin Cir.1986), (5th treatment F.2d 1215 where the 790 (5th Estelle, game 604 F.2d 893 Cir. v. complained appeal defendant 1979), that the must be satisfied and adequately court did not assess his district understands the nature accused in a situation. waiver of counsel pro consequences of charges, the response Court wrote: meaning of ceedings, practical “A defendant has a constitutional Brady v. waiving. he is conduct to waive counsel and his own States, 742, 397 90 S.Ct. United U.S. defense, provided his decision 1463, (1970); 25 L.Ed.2d 747 Rauler voluntary willing and ‘he is able and States, F.2d 803 son v. United 732 procedure to abide rules of and court- (11th Cir.1984). protocol.’ Wiggins, McKaskle v. room McQueen 1174, Blackburn, 755 F.2d v. 168, 173, 465 104 S.Ct. 79 U.S. 852, Cir.), denied, (5th 1177 cert. 122 citing L.Ed.2d Faretta v. Cal- 152, (1985). 106 88 S.Ct. L.Ed.2d 125 806, 2525, 422 S.Ct. 45 ifornia, U.S. 95 factors, “Applying these entertain we (1975). self-representa- L.Ed.2d 562 For no that Martin’s was know- doubt tion, ‘knowingly a must defendant ingly, intelligently, voluntarily made. counsel, intelligently’ forego and the intent apparent It and stated was request se must be ‘clear ’ arraignment. his obvious before It was unequivocal. Brown v. Wain- trial. no merit intent There is before (5th Cir.1982) wright, 665 F.2d 610 error, assignment this nor in the con- banc). (en granting request, Before - tention that since he was uncertain judge must caution defend- standby pay whether he would have to ant about of such a course implicated way counsel that this some of action so that the record will establish right. That Martin’s sixth amendment doing that ‘he he is knows what and his product apparent issue is the of intense open.’ Faretta, made eyes choice is legal appel- effort and the keen mind of 422 U.S. at 95 S.Ct. ‘In persuasive.” late it is but order to whether the right determine (Emphasis supplied.) waived, effectively counsel has been proper inquiry Thus, is to evaluate the cir- it is clear various factors such cumstances education, each case as well as the age, background, experience, as background etc., Wiggins process. are to considered in the be defendant’ Procunier, (5th F.2d v. 753 1320 approach utilized the feder same Cir.1985). majority al courts has been taken “Following progeny Faretta’s re- courts, appellate generally the state cases, underscored lated we various finding a have that there weighed which are to be in this prereq to counsel as a factors process: uisite to self- to an assertion See, Bauer, The court must consider the e.g., representation. v. State defend education, age (1976);

ant’s Mixon v. 310 245 848 Minn. N.W.2d States, (Mo.App. 608 F.2d 588 Cir. United 652 Burgin, State v. 1979), background, 1976); Easton, experi Or.App. and other v. State ence, (1978); v. 655 P.2d conduct. Johnson P.2d 37 Williams Zerbst, P.2d (Wyo.1982); 82 273 Lafferty, State 1461; (Utah 1988); L.Ed. Middlebrooks v. McCracken v. United denied, (1st Cir.), F.2d 962, cert. (1984); “Similar arisen in this circuit cases have where, Ristaino, (1st rep Fillippini after a allowed to F.2d trial, Meachum, depriva Cir.1978); Maynard resent himself at he has claimed 545 F.2d right (1st Cir.1976).” of his counsel for lack of an tion Hafen, States v. effective waiver. United (Alaska 1974); State, record, presumed P.2d 85 v. not be Coleman from a silent (Okl.Cr.App.1980). Cochran, 506, 516, 617 P.2d 243 Carnley v. (1962); Ex recently Our own state case law until has Auten, parte (Tex.Cr.App. 458 S.W.2d 466 interpreted requiring also Faretta as that 1970), and “lightly that waiver will not be show, alia, the record inter that the accused indulge every inferred” and courts will rea voluntarily, knowingly intelligently and presumption against sonable the waiver. right waived his to counsel in order to Zerbst, See, supra. e.g., Johnson v. See, Webb assert his himself. State, (Tex.Cr.App. v. 533 S.W.2d e.g., State, (Tex. Webb v. 533 S.W.2d 780 1976) (footnotes State, 8); Cr.App.1976); Barbour, supra, and Thomas v. (Tex.Cr.App.1977); State, 373; Goodman, supra, Barbour v. at 499. Thus a (Tex.Cr.App.1977); 551 S.W.2d 371 Trevino heavy prove burden rests State State, (Tex.Cr.App.1977); v. S.W.2d defendant waived State, (Tex.Cr. Jordan v. 571 S.W.2d 883 Bird, parte counsel. Ex 457 S.W.2d 559 State, App.1978); Lisney v. (Tex.Cr.App.1970); Goodman, supra, at (Tex.Cr.App.1978); State, 586 499. Renfro (Tex.Cr.App.1979); S.W.2d 496 Goodman Geeslin, supra, In the Court noted the State, (Tex.Cr.App.1979); 591 S.W.2d 498 two elements of that the trial State, (Tex.Cr. Geeslin v. 600 S.W.2d 309 court must be satisfied as to the existence State, App.1980); Lawson v. 604 S.W.2d 91 allowing pro- of both before a defendant to (Tex.Cr.App.1979); Campbell State, Geeslin, supra, ceed se. but not Barb- (Tex.Cr.App.1980). See also our, supra, Goodman, supra, as the (Tex. Johnson v. 653 S.W.2d 324 it, majority would have held that to deter- App.-San 1983); Antonio Reed v. mine whether waiver of counsel is intelli- 1986); (Tex.App.-Amarillo S.W.2d 643 Bell gent voluntary the trial court “should” (Tex.App.-Austin 734 S.W.2d 83 inquire into age, the defendant’s back- 1987); Perales v. 730 S.W.2d 205 ground, experience education and and that (Tex.App.-San 1987). Antonio inquiry. the record “must” reflect such Thomas, supra, it was held that for a Geeslin, supra, Renfro, supra, cited court to determine whether Lisney, supra, require- for the “should” has waived his to counsel the record Webb,supra, Thomas, supra, ment and compe must show that the defendant was requirements. for the “must” Lisney and tent to waive his to counsel and that both found the record deficient as Renfro knowingly intelligently did so after to both waiver of counsel and admonish- being dangers made aware of the and dis ment as to and further advantages self-representation. And in observed that the trial court had made no Jordan, supra, the record was not suffi education, inquiry age, background, as to ciently developed to show and in etc., experience, proper to assist in the de- telligent waiver of counsel after the de merely termination. Thomas held that the fendant was made aware of the compe- “record must show defendant is proceeding pro se. tent to waive the to counsel” and Other cases found the record failed to show clearly held the “record must Webb show either an affirmative waiver of counsel or a voluntarily, knowingly the accused proper self-representa admonishment as to repre- waived his tion, e.g., Barbour, Goodman, supra; su Age, background, experi- sent himself.” pra; Geeslin, supra; Renfro, supra; Lis ence, etc., long cases, have been traditional ney, supra. many And these determining factors to consider in regard an af- it was often firmative waiver of counsel. This observed that of counsel cannot language relinquishment “an intentional or be doubted. in Geeslin must abandon light therein, privilege,” ment of a known or be read of the cases cited John Zerbst, light son v. and in the fact that this Court has 82 L.Ed. 1461 that such waiver will said the waiver of counsel is to deter- long assessment re- totality counsel so as “an from the of the circumstanc of mined State, “knowing” or exercise of 276- flects a assertion v. 511 S.W.2d es. Moreno self-representation. (Tex.Cr.App.1974), the cert. den. 813; 794, 42 L.Ed.2d Thomas 95 S.Ct. rehearing in Martin not- majority on State, (Tex.Cr.App. 458 S.W.2d in the Faretta had found Sixth ed that State, 566 1970). also Williams an constitutional independent (Tex.Cr.App.1978); Castro S.W.2d his own an to conduct accused (Tex.Cr.App.1978); defense, power arising not out of his to (Tex.Cr. State, 614 Johnson v. S.W.2d quot- then assistance counsel. It waive App.1981). portion of at 95 S.Ct. at ed the Faretta opinion) (quoted cases earlier in this Nothing in Geeslin or earlier Texas any requi- necessity a must the litany to mandate that then disclaimed sought attempt colloquy, the absolutely majority followed nor sites. The noted did waiver, portions requisites. other of the Martin record any to Faretta such attribute “experience” allegation found from (Tex. In Martin (near trial) prior proof of a end of the Cr.App.1982), burglary conviction was that The Court concluded “the conviction. submission, opin original reversed on appellant record establishes that knew finding support ion that record did doing he was and his choice was what a of counsel in a Faretta valid waiver eyes open.” no ex- made with There was While there a written waiv situation. was of counsel or press statement about waiver er found it was relinquishment of benefits of counsel. The conclusory little couched in terms and of disposed of and other contentions were determining assistance affirmed. conviction Citing Renfro, waiver. Geeslin and noted original opinion concurring opin- that “this Court” Judge W.C. Davis in his (not Faretta) held a requisite had that a required that cautioned both ion inquiry of counsel into valid waiver was an knowing and intelli- that an accused make a experience age, background, education and gent waiver counsel and be admonished there had been the defendant that of self- of the inquiry. no such representation after assertion of the se, a and that waiver of rehearing a of the On reexamination “lightly not be inferred” nor counsel will totality as a or of the record whole from a presumed silent record courts (including compelling cir circumstances indulge every presumption reasonable will evidence) showed, despite cumstantial against a such waiver. specific of the trial to make failure etc., age, experience, inquiry into that there majority opinion in on That the Martin a reasonable basis the trial court was for rehearing explanation needed further satisfied all the Faretta have been attempted This was in the concur- evident. requirements had been fulfilled and ring opinion Blankenship v. voluntary of counsel the waiver was both (Tex.Cr.App.1984). The author intelligent. See and cf. v. Geth State Martin, Clinton, Judge stated at 586 in (1984); ers, 193 Conn. 480 A.2d 1: footnote States, 411 A.2d 618 Fowler v. United S.W.2d 952 “In Martin v. (Dist.Col.App.1980),cert. den. 446 U.S. (Tex.Cr.App.1982) held such an the Court 2967, 64 L.Ed.2d 841. where unnecessary in cases inquiry However, rehearing in a ex- majority on record otherwise reflects selfrepresentation; Martin, withdrawing origi- opinion ercise submission, Martin, distinguished doing, supra, opportunity, seized the in so nal so, coun- necessity doing requisites pure ad- for ‘waiver of any without Faretta, showing from sel’ what vance a different construction ‘relinquishment of asso- eliminating require- show a benefits down-playing or to counsel’ which foregoing waiving the ciated with ment of the or necessarily accompanies ex- court’s failure to admonish him in accord- Geeslin, right self-representation supra, ercise of the ance with violates Faret- contemplated by Faretta v. ta—is doubtful.”5 2525, 422 45 L.Ed.2d supposedly distinguish Martin would the (1975). 562 counsel, requisites “pure” for a waiver of “Thus, it is essential to note that Mar- age, background, experi- inquiry the into tin, supra, prior modified all decisions of ence, etc., from to show what involving the in cases an assertion Court “relinquishment of associated with benefits self-representation right, to the right to counsel” which Martin would extent that their focus on the tradi- say necessarily accompanies the knowing inquiry, tional of counsel’ rather ‘waiver right self-representation of the exercise Faretta, su- than that circumscribed contemplated by Faretta. Martin would pra.” discourage any inquiry age, into etc. 1 Judge Clinton in footnote Still later thus hold that a Martin would waiver State, 615 Lambrecht v. 681 S.W.2d counsel is not essential (Tex.Cr.App.1984),wrote: exercise of the State, 630 “But see Martin v. something “relinquish and that less—a (Tex.Cr.App.1982)in 952 which ment of associated with the benefits acknowledged Supreme rea Court’s required.6 to counsel” is all that No soning independent right that the to self- explanation proce is ever made as to the representation does not arise from defendant, per dure to be utilized when a power assistance of accused’s to waive represent himself under the mitted Mar prior that decisions counsel observed theory, stops in mid-trial and demands tin exacting of this had iterated Court which he claims he ‘requisites’ establishing waived, affirmatively never and the record counsel, [e.g., Barbour v. waiver shows no valid waiver of because (Tex.Cr.App.1977); 551 S.W.2d thereon, proper of the lack of focus or (Tex. Goodman v. requisites inquires into traditional of such Cr.App.1980); and Geeslin v. Israel, supra [627 See waiver. Wilks ], (Tex.Cr.App.1980) had read S.W.2d 309 Cir.1980) (7th ]; F.2d 32 Richardson v. Lu incorrectly. stated: We Cir.1984). cas, 741 F.2d 753 opinion simply cannot “The Faretta 726 F.2d Hafen, cf. United States reasonably require that a be read to Cir.1984), (1st cert. den. 466 U.S. judge spread the record (1984); all. Fillippi 5.Ct. such information and data about an (1st Ristaino, 585 F.2d ni v. might conceivablyimpugn accused that Meachum, Cir.1978); 545 F.2d Maynard v. represent his decision to himself....” (1st Cir.1976). These cases illustrate 5;n. also 630 S.W.2d at see Blank- potential allowing inherent in hazards enship n. himself accused to without concurring). (Tex.Cr.App.1984) (Opinion coun unequivocal of his waiver sel, standby “Thus, particularly there is no validity premise where appellant’s argument the trial —that Digest Encyclopedic Great Dic- Barb- 6. The Reader's

5. Said footnote # 1 of Lambrecht accused our, misreading Wagnalls tionary (including and Geeslin of Faret- Goodman Funk and Standard ta, inquiries that into “forgo” p. and with its obsession College Dictionary) defines traditionally matters associated with the "relinquish" give up," 523 as “1. to and defines inquired into of counsel need not be of the abandon; give p. up; surren- as “1. to at der,” sought these trial court to undermine Dictionary, Deluxe Black’s Law [Accord: and Goodman do not even deal cases. Barbour authority p. and the same Fourth Ed. at 1456.] proposition for which Lambrecht seeks with the voluntary p. as "The defines "waiver” at word "must” to undermine. Geeslin uses the right, privilege, relinquishment or advan- of a litany speak in terms of a or but does "requisites." Dictionary, tage.” Deluxe Black’s Law [Accord: language the Geeslin The basis for p. 1751.] Fourth Ed. herein, supra. been discussed has age, lev include the defendant’s its to counsel seen, thrust of As Martin education, capacity prior mental el of seems to the contention progeny involvement, legal proceedings. intelligent any, if knowing and standard Faretta’s 1, 119 Ill. Davis, Ill.App.3d required solely People to the assertion (Ill. necessarily to a waiver 523 N.E.2d defense and not Dec. Dist.1988) found there has been of counsel because the Court Whether App.2 indepen ad hoc self-representation to be counsel is an clause of the depends particu to counsel on the dent of determination however, now, case, Amendment. See Sixth circumstances of lar facts and supra, 465 U.S. at Wiggins, v. and background, experience McKaskle including the 947, Martin, 172, 104 after Smith, decided S.Ct. v. conduct of the accused. State apply interpreting (1988). See Wash.App. 749 P.2d 202 to the standard and v. So.2d also Hardwick (Fla.1988). Supreme Court teach The United States in Texas difficulty applying Part of the only of counsel is valid es a waiver right of in cases where the decisional law understanding^ voluntarily if it is such is asserted is that Zerbst, supra; v. Patter made. Johnson con- complicated and has now become law — Illinois, —, 108 S.Ct. son v. Martin is claimed have fused. While but 101 L.Ed.2d of this Court prior “modified” all decisions the ac can be inferred from such waiver J., (Clinton, concurring, Blankenship, su- tions and words of the accused based 586), itself has since been pra, at Martin case, particular of the circumstances La- undermined and modified. sub silentio experience including background, the earlier and ter cases have returned to conduct of the accused. North Carolina interpretation of Faretta so more uniform 369, 374-75, Butler, 441 U.S. clearly has assert- that when the defendant (1979). 60 L.Ed.2d “then the proceed pro se ed his (defendant) he must show that record in As earlier observed United States v. intelligently waived knowingly and Martin, supra, the Fifth Circuit Court of being aware of counsel after made Appeals wrote: self-rep- disadvantages of dangers “Following progeny and re Faretta’s State, 717 Funderburg v. resentation.” cases, lated underscored various we (Tex.Cr.App.1986). 641-642 S.W.2d weighed in this factors which are to be also Neal v. consider the process: The Court must State, 634 (Tex.Cr.App.1984); Burton age education, defendant’s Mixon v. (Tex.Cr.App.1982). Cf. Powell States, 608 F.2d 588 Cir. United (Tex.Cr.App.1982). 1979), background, experience, and other supra. Wiggins, also McKaskle See now Zerbst, 304 and conduct. Johnson v. 1461; 82 L.Ed. complexity is a new stat- To add States, v. United 457 F.2d Middlebrook (added 1.051, by ute, Article V.A.C.C.P. (5th Cir.1972).” (Emphasis supplied.) Sept. Leg., eff. 70th ch. Acts § Wainwright, Ford v. 526 F.2d See also 1, 1987). Although applicable (5th Cir.1976). 919, 922 1.051, case, supra, (g) of Article instant § provides: im- protective restrictions Inherent to waive self-repre- “If a defendant wishes

posed on exercise of the counsel, shall advise right to the court the fact that the court must sentation is disadvantages of compe- him of the defendant is assure itself that If the court deter- self-representation. counsel. Roose v. tent to waive voluntary and considered mines that the waiver (Wyo.1988). Criteria P.2d made, pro- shall de- the court making decisions as whether a statement sub- the defendant with requisite capacity has to make vide fendant form, which, following if stantially intelligent and defendant, Appeals on a signed by judgment shall be filed of the Court of part with and become of the record of different basis. proceedings: just prior In the instant case to the voir “ this_day ‘I have been advised panel jury dire examination of the and the _, 19_, (name court) merits, day before the trial on the the trial my right representation de- appellants’ court was first informed of charge pend- counsel in the trial of the sire to their retained I ing against me. have been further reported he had counsel. He been advised that if I am to afford unable “fired” he not follow their because would counsel, appointed for me one will be things instructions to do he considered charge. Understanding my free of prepared unethical. Counsel was for trial me appointed to have counsel appel- to “sit volunteered with” charge financially I free of if am not protect procedural rights.” lants “to employ I wish to waive able to inquired appellants Court then request the court to they proceed wanted to indicated my an attor- case without pro se. After admonishments the court hereby I ney being appointed for me. appellants going that it was to informed counsel, (signature my right waive to require present, to to con- their counsel be ” defendant).’ of the them, give to assistance and sult with lend

While Martin something holds that less advice, jury in selection. and to assist constitutionally than a waiver of counsel is gave he they Since were free on bond them requires required, the statute now such a morning next to secure other until the although suggested form is counsel, the morning if desired. The next the in- conclusory in nature.7 Whatever hy- rather appellants agreed to the proceed with Faretta, terpretation given to a waiv- is be representation by the court. brid outlined constitutionally or er now followed, Attor- During the trial which required by statutorily or both Hargrove, had conducted the voir ney who permitted to before a defendant is examination, objected dire to the introduc- asserting self-rep- pro se after the State, tion of certain evidence cross- resentation. witnesses, handled all examined State’s and new say To the least our case law conferences, made of the bench various sending signals developments are mixed to charge for the objections, examined only the Texas bench and bar who want appellants, poll jury to after and moved guidelines. consistent For all the reasons stage trial. guilt verdicts at the of the I would overrule Martin discussed above stage completely penalty He conducted Funderburg, supra (Camp- and adhere to made the appellants of the trial for the bell, J.). argument proceedings. at such jury private not reflect what consul- record does Martin, eroded, badly The theme of may place have taken between At- tations forward, however, today’s major- carried during Hargrove appellants torney opinion. appellants’ particu- ity While trial, Hargrove the course of the but was complaint is that the trial court did not lar times. present at all question them adequately and warn about Amendment to their Sixth circumstances, aside, Putting under generally assesses the record majority appel- timeliness of any question about the merely appellants know- to determine request self-representation or lants’ rights to defend them- ingly asserted their they unequivocally asserted their whether selves. se, proceed pro we observe or objections no at trial appellants made with Martin’s agree inter- I do not While Faretta, counsel was forced either that I affirm the now pretation of would of counsel. suggested cer- affirmative waiver form will Those who use the tainly it out so as to show want to flesh appellant’s con I find no merit in they voluntarily not would them or that were duly questioned Further, they tention that se. allowed his federal constitutional and warned about pre- do not claim were not allowed hybrid repre light to counsel present- actual control over the case serve patient trial permitted by the sentation jury. They accepted hybrid ed to Thus, necessary to consider judge. it is not permitted by the trial court representation the in further, given the circumstances complain only that the trial court now case, appellants did not stant whether adequately question did not and warn them self-representa fact waive their Sixth about asserted. McKaskle tion once it has been 944, 79 Wiggins, v. hybrid A defendant is not entitled Wainwright, Brown v. 122; L.Ed.2d Landers representation. (5th Cir.1982); United 607, 610-611 F.2d (Tex.Cr.App.1977); Rudd v. S.W.2d 272 Lorick, (4th F.2d States (Tex.Cr.App.1981). 616 S.W.2d 623 1107, 105 Cir.1985), den. 471 U.S. cert. Daniels, 572 F.2d See also United States v. (1985); Johnson 85 L.Ed.2d Cir.1978). (5th However, patient McCotter, Cir. 803 F.2d 833-834 may counsel and the ac judge allow both 1986); Funderburg v. 717 S.W.2d participate in the case. jointly cused to (Tex.Cr.App.1986)(Campbell, 641-642 State, (Tex.Cr. Webbv. J.) App.1976). And where a defendant was remarks, I in the re- these concur With permitted hybrid representation, failure of judg- affirm the sult reached and would give trial court to the admonishments Appeals affirming his ment of the Court of accorded a se defendant was not convictions. Phillips error. And in Maddox v. (Tex.Cr.App.1979). CAMPBELL, JJ., join DAVIS State, (Tex.Cr.App. opinion. this 1981) (Opinion on State’s Motion for Re TEAGUE, dissenting. Judge, hearing), it was held that where the trial permitted hybrid representation no opinion from the majority concludes involved, question of waiver of counsel was (1) affirmatively es- the record record that failing and the trial court did not err in properly appellants that the were tablishes dangers admonish the defendant as to the dangers and disadvan- admonished of disadvantages self-repre dangers and (2) they tages self-representation, State, sentation. See also Hawkins v. intelligently waived knowingly Helton v. (Tex.Cr.App.1982); S.W.2d counsel. Be- Sixth (Tex.Cr.App. S.W.2d appeal the record on I do not believe cause 1984); Rainwater v. conclusions, I re- supports majority’s 1982); Garza (Tex.App.-Ft. Worth spectfully dissent. (Tex.App.-Amarillo 635 S.W.2d 644 true, it comes to the trial court It is when 1982), review ref 'd. knowing- ascertaining the accused whether O’Connell, his Sixth State v. ly In waived 147 Vt. that (1986), right to A.2d 167 it was held that the trial Amendment inquire into the defend court’s failure to require a does not decision to se was excusa 45 L.Ed.2d

ant’s judge literally re cover the waterfront where the defendant’s counsel trial ble him he admonishes throughout the accused when mained to aid disadvantages of dangers and the defendant did proceedings where about Thus, judge trial proceed pro self-representation. not claim that he was forced to ac- day from the so not need not commence se or that the decision to do every and thereafter cover King voluntary. and cf. 631 cused was born might legal question arise den. that (Tex.Cr.App.1982), cert. conceivable However, 928, 103 during the trial of the case. 74 L.Ed.2d 188. judge the trial appellant’s on its assent to what each case must be decided because merits, reflect the just certainly own what minimum admonish- stated most does not judge accepted ments must be made the trial affirmative fact that counsel was arms, so cannot formulated in such a manner appellants with outstretched as to cover all situations. implies place. majority opinion took as the reading pertinent por- A careful rights Because the constitutional cause, tions of the record this court, appellants were violated admonishing appel- judge the trial concern should be reversed and not the convictions dangers disadvantages of lants of the affirmed. self-representation, only reflects the follow- ing: they that knew what he ascertained charged they with commit-

offense were punishment

ting; they knew what

they they faced in the were found event jury

guilty; informed them that se- “[t]he questioning jury requires

lection or not there

panel to determine whether impartial jury”; be a fair and

can pro- informed them that could ask the WILLIAMS, Gregory Appellant, spective jurors questions. specifically He following appellant Stapp ques- asked you you

tion: “Do think can conduct the Texas, Appellee. The STATE your cross examination of the witnesses No. 6-87-098-CR. case?”, reply. and received affirmative view, my is insufficient to the above Texas, Appeals appellants adequately establish Texarkana. properly admonished of the were self-representation. Sept. 1988. holding majority opinion I dissent Rehearing Denied Oct. contrary. here, Furthermore, judge, a trial as when following such statements as the

makes accused, namely, “I will insist

Counsel, appel- just fired had been [who

lants], present you. to assist with Do be understand?”; going I’m to re-

you “Now present, and I’m

quire that be [counsel] require you lend assist-

going to that he

ance, advisory, and that he also assist selection.”; I think jury “but [counsel] jury you”; I’m

should voir dire the “but through-

going present be to have [counsel] like, ...,” any acqui- this trial and the

out from the accused the form

escence “Yes, judge, as

saying sir” to the trial here, only the exhibition

occurred reflects display respectful conduct toward figure just ex- who has

an authoritative for the world to hear what

claimed do, acquiescent is not to an

intended to always

“arrangement” that counsel would advisory capacity,” as the present “in an instance, In this

majority opinion declares.

Case Details

Case Name: Johnson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 16, 1988

Citation: 760 S.W.2d 277

Docket Number: 499-83

Court Abbreviation: Tex. Crim. App.