*1 «3 nоtes, he According my THE COURT: SCARBROUGH, Appellant, leg Danny Ray do on either and didn’t
couldn’t stand counting either. single ap- The trial court’s reference Texas, Appellee. of STATE more, counting, not pellant’s does without presumption that the overcome No. 930-87.
disregarded compelled resulting testimony Texas, Appeals of of Criminal interrogation. portions The visual from Banc. En tape appellant stag- demonstrated that a trian- gered attempting when walk 14, 1989. June floor, further gular area marked on the Sept. 1989. Rehearing Denied to stand showed that was unable Rodriguez leg. testified to on one Officer behavior, difficulty
appellant’s abrasive his vehicle, exiting and his mumbled driving.
speech, in addition to his erratic judge clearly
The trial found the evidence finding guilt. support a He
sufficient to
stated, way you gone “In a I wish gone jury in this case be-
ahead and it them probably
cause think would take length it take of time would
about Appellant fails to estab-
elect foreman.” upon any
lish the trial court relied resulting
compelled from custo- testimony interrogation determining appel-
dial guilt.
lant’s
Likewise, the final referenced statement judge ap-
from the trial does not advance Instead, responds
pellant’s contention. theory
to the defensive uncoordinated, incapa-
naturally and thus is performing sobriety
ble ever tests. showing that the
In the absence a clear impermissible por- considered
trial court tape, apply presumption we
tions
that the trial court did consider resulting
compelled testimony from interro- Keen, 626
gation. S.W.2d 309. See also
Tolbert, S.W.2d 631.
Accordingly, the the court judgment of appeals is affirmed. TEAGUE,
CLINTON, MILLER JJ.,
DUNCAN, in the result concur
only. *3 Dunn, appellant. Tyler, for
Thomas A. Jr., Skeen, Atty. Ann M. Dist. Jack Monaco, Atty., Tyler, Asst. Dist. Robert Austin, Huttash, for the Atty., State’s State. PETITION ON APPELLANT’S
OPINION REVIEW FOR DISCRETIONARY CLINTON, Judge. of offense of
Appellant convicted the was assault, punish- his aggravated sexual felony ment, by previous con- two enhanced victions, by jury at 99 assessed of Correc- years Department in the Texas tions. appel appeal error on single point
In a of deprived him alleged the trial court lant represent himself right to his constitutional States recognized by the United California, v. Faretta Supreme Court L.Ed.2d 562 422 U.S. S.Ct. held, Appeals (1975). Court of The Twelfth opinion, that unpublished in an right his to assert unequivocally failed point overruled selfrepresentation, and Texas, (Tex.App. Scarbrough error. 12-86-0173-CR, delivered —Tyler, No. pe 18, 1987). grаnted appellant’s We May determine discretionary review to tition assertion appellant’s whether unequivocal was indeed January 17, 1986, the record be- On the cause was 200(c)(2). Tex.R.App.Pro., fore us. again Rule purposes called for admonishing disadvantages representation. I. self The court an- appointed standby counsel, nounced it morning 2, 1986, On the ap- present, then [appellant] “to in any assist pellant appeared arraignment without way [appellant] permit his assistance attorney. by an Asked the trial court making the determinations that counsel, whether he able to afford obligation Appel- has an to make.” appellant responded, “I don’t want an at- interjected, needing lant “I won’t be a law- torney.” When the asked if court this was yer. myself.” I take of it will care so, replied, indeed right, he “That is began question then and ad- He now.” indicated he would want appellant. Appellant monish he stated was court, attorney go “[w]hen thirty-five old, years occupa- laborer guess[,]” wanting and denied tion, high equivalency with a school edu- himself. The trial arraign court refused to *4 represented cation. He had never appellant or allow him to arraign- waive legal in a matter. He demonstrated an ment under the circumstances. charges against him, awareness of the but Later day the same the cause was re- had to regarding applica- be instructed the called and following colloquy ensued: range punishment. ble The trial court “THE you COURT: If I recall stated appellant instructed toas the “technical” you attorney. that did have nature procedurе evidence, of rules of [Appellant]: Yes, repre- I sir. want to governing and the jury law voir dire and myself. sent charges. The court made that clear con- you THE you COURT: Are saying cessions would not made at trial on be represent yourself? want to appellant’s training account of lack of Yes, [Appellant]: Your Honor. experience. The questioned ap- court next THE you telling COURT: Are pellant punishment phase about the of a you represent your- Court that want to trial, during following which the occurred: stages proceedings, self at all in- you “THE Do think COURT: ... that cluding arraignment? you proper objec- are able to make now now, [Appellant]: For right yes, Your Attorney tions if the District tries to Honor. prior introduce some conviction criminal THE COURT: For Are now. properly up that proved is not or authеn- you expressing uncertainty some ticated; as to you you do think would know you represent your- whether will want to object when object and when not at stages? at all self penalty phase? give Just the Court Yes, your [Appellant]: you can, best answer Your that whatever Honor. you thinking. are THE do COURT: You have reserva- ' could, [Appellant]: tions? I I believe Your Honor. [Appellant]: like right. you THE myself. All COURT: Are will- ing to take that chance? THE way? All COURT: [Appellant]: it, I will let take Yes, [Appellant]: sir, [counsel] Your Honor.” then. explained The trial then appellant court quite THE COURT: I don’t understand that certain admonishments would nec- be you saying what are now. Tell me what essary, and declined to undertake those you saying are you saying you now. Are lengthy pro- “now because it is a rather your want to take over de- [counsel] ceeding.” Appellant replied, “I simply, re- fense? quest represent myself, Your Honor.” [Appellant]: help To along me with Again the it. to arraign appel- declined lant. help THE you? COURT: To
«7 will assuring you Yes, You the Court [Appellant]: are sir. respectful? orderly and be him to THE You COURT: want feel help you you available to when Honor. Yes Your [Appellant]: help you? need him Court you tell the THE COURT: Can Yes, [Appellant]: sir. represent your- truly want to you right? THE Is COURT: self? Yes, [Appellant]: Honor.” Your Yes, Your Honor. [Appellant]: these as- After admonishments Now, you do want THE COURT: court that his choice to sured trial appoint Court to [counsel] [counsel]—the “intelligent, freely represent himself stages at the court- to be available voluntarily made[,]” and made and you any manner and room assist pitfalls full awareness of “the feel need for his assist- any you time representation[.]” colloquy The of self ance? turned the trial concern to next court’s Yes, Your Honor. [Appellant]: delay disruption: or avoid you right. All And do COURT: THE you “THE Do COURT: have inten- com- that once understand thoughts representing tions expectation of mences that it will be the your yourself proceedings or these that the trial continue until might delayed interrupted? finally has concluded? been Yes, [Appellant]: Honor. Your Yes, Honor.” [Appellant]: Your Well, you THE not sure COURT: am undergone psycho- Because question. understood Court’s *5 compe- logical to determine his examination this, question you simply do or Court’s prosecution tency recent to stand in a by representing not do intent have intoxicated, the driving while yourself disrupt proceedings? the to appellant’s re- ruling defer on decided to Oh, [Appellant]: no. representation pending fur- quest for self THE You do COURT: wouldn’t that? psychological ther evaluation: [Appellant]: I don’t think so. going are to dis- “THE COURT: We right. THE All You have no COURT: being. the hearing this time continue or proceedings desire intent that the made final decision will be Court’s delayed? everything the when the Court has done No, [Appellant]: Your Honor. knows to do to make the decision Court THE Let’s suppose COURT: we start has to make. That deci- the Court you representing out the trial with you permit- sion or not will be is whether yourself. represent yourself, Mr. Scarb- ted to Yes, [Appellant]: sir. rough, ap- whether the Court would or stage THE And at some COURT: then you the point to all counsel you you quite decide don’t feel comforta- ground, way through, you or middle representing yourself you and should ble reprеsent yourself the assistance say, ‘Judge, lawyer I then a to want Court, for attorney appointed by the an Now, point do represent me.’ you fit. Those are you to utilize saw the Court would have to you understand not choices. The Court would three already if appoint lawyer a he hadn’t this time. I think choices at make those so, your lawyer might have to and done going you have to order Court a week in day, days, a or two have examination.” another you; do prepare order that? you hearing understand in this By of the next the time however, 22, 1986, Yes, cause, [Appellant]: Honor. Your require did had decided it trial court And in itself would THE COURT: all. evaluation after psychological further disruption. some We delay cause and following exchanges took day the On this The Court jury a the box. would have place: tо do. problem a with what would have
“THE Scarbrough, Mr. you you you COURT: THE COURT: Do think think, you have had a little time to advice? have follow time to visit and confer with [Appellant]: I If felt like I should [coun- I youDo you capa- still feel that are would. sel]. of effectively representing yourself
ble you THE If you COURT: felt like on this case? wouldn’t, you shouldn’t I it. take Yes,
[Appellant]: Honor, Your I [Appellant]: (Laughing.) do.
THE COURT: You be seated asking I while am questions. these got THE COURT: I have ... obli- Now, the quite Court is not clear gation to make myself, a decision even exactly your request what is. though you say can’t you you feel can better decide, represent yourself, point got haven’t this been have able make a decide, wanting you freely determination you if are of whether and handle voluntarily intelligently your yourself waive as- defense the way all knowing sistance counsel through, including the arraignment you— disadvantages represent- arraigned yet, nothing haven’t been has ing yourself. is the That determination I happened Scarbrough; yet, Mr. you do got you have to make. Do think that I understand that? ought you knowingly find that [Appellant]: .(Nodding up head intelligently voluntarily give up down.) to assistance counsel with the THE Or you wanting COURT: are knowledge dangers, risks, full of the represent yourself portions on certain pitfalls, consequences and the of repre- trial, then turn it over [counsel] senting yourself? portions for other and then Yes, [Appellant]: Your Honor. portion after has handled [counsel] right. THE COURT: All Whatever continue, you then and so and so you say you risks are are will- involved forth, rotating in a sort of a manner. ing take them? you enlighten Can little as to [Appellant]: Yes, sir. you got in what have mind what right. you THE COURT: All But do your request is? *6 want to be available at all times [counsel] [Appellant]: way I will handle it all the you you request to advise when advice through, stay Your Honor. can He as participate you request and to when him advisory along, advise me a little it —to participate? right. all would be Yes, [Appellant]: Your Honor. Well, you THE COURT: do want By THE that I COURT: mean the present to be times in the [counsel] you saying Court assumes what are you courtroom available to for advice you represent yourself that want ex- you you think need when it? cept you the extent that choose to [Appellant]: If he he wishes—if wishes seek the advice the assistance of to. [counsel]? your THE COURT: What is wish? Yes, [Appellant]: Your Honor.” [Appellant]: I could use some advice ado, further the trial court ar- Without every then. now appellant. Thus, raigned while the record you you THE COURT: Do think could explicit, appears is not it the trial court along a little use advice [sic]? affording contemplated appellant what at Yes, [Appellant]: Sir. hearing the on 17 was identified as right. you THE All Do feel COURT: effect, ground” rep- the hybrid “middle —in you when needed—felt the need that for Scheduling of a date resentation. you call on advice would [counsel] “until [appellant] and deferred [counsel] advice? any pretrial a file have had chance to mo- Yes, file, you might [Appellant]: Your Honor. tions see fit to Yes, [Appellant]: sir. preparation you think needs make what period of Well, for what THE COURT: made[.]” access you want you do think would time Feb- once more on The cause was called library? to the law ruary 1986: long it a time I needed [Appellant]: notices “THE The Court COURT: ... I don’t have know. ago. don’t hearing is to purpose the of this idea. pretrial mo- hear and consider certain long how know THE Don’t February on COURT:
tions filed the defendant hearing mo- take? pretrial 12. The of those would originally Thurs- rqy tions scheduled for already got [Appellant]: I have February But day, 1986. on to afford a dismissal and motion for date the received a handwritten Court like here with me. would speedy trial bearing file note from the defendant it. to file 12, 1986, February reads as mark which Getting the back to THE COURT: Tunnell, I, Danny Judge follows: “Dear library, long use of a how question about the Scarbrough, request would the use of you you think would need use do of criminal law library law or the use proceed— library before we handling my as for use in defense books [Appellant]: ready. I am lawyer.” Signed Danny my own Scarb- hearing —to THE these COURT: rough. motions? part The Court makes this note a ready [Appellant]: I whenever will be proceedings the record on heretofore ready, Your Honor. the Court is had, considering request of de- you THE But do want to use COURT: fendant to himself. Because library? note the Court received such and wanted Yes, Honor, [Appellant]: Your I would can- request to consider the the Court like to. hearing on the celed and rescheduled the you Is that feel THE COURT: because pretrial originally motions scheduled prepared sufficiently you are not 14, 1986, hearing February and reset the represent yourself? informed to proceeding for this date. Before Honor, No, I don’t [Appellant]: Your hearing pretrial motions feel that. give proper thinks it further Well, you now to THE COURT: allow request to the consideration defendant’s library long you are use the so light representation, especially for self bond, of incarcerated and not under just has note which the Court course, you require that in effect read. bail, you jail from or that released Scarbrough, you ask a few Mr. I’ll custody the sheriff or remain *7 questions. Specifically what criminal up deputy deputy, would tie which you law books do wish? using the during you that were the time [Appellant]: Texas Code Criminal Usually you us- library. start law when and motions proceedings Justice and library you calls for ing the one book law to check a of them that —I will have few or want to see see another one to want to out. one, pe- involving considerable a another Speak THE a little louder. COURT: I the motions—the riod of time. notice [Appellant]: on Texas Criminal Ones prеtrial mo- that are two motions filed— proceedings filing and motions Justice by pro signed personally you are tions procedures. up look the laws and and Court that appears It se. wanting the you THE Were COURT: expert rather form as in motions are Court to— Certainly suggestive form and content. the law [Appellant]: experi- Give me access to competent, a to the Court library I prepare need. the mo- attorney actually what enced signature; is that correct? your Library? tions
THE COURT: [Appellant]: it, I help had with sir. my lawyer be own or not. I have already appointed THE been represent COURT: Sir? my self. supposed pre-trial own This is to be [Appellant]: I help with it. hearings and my also hear motion for THE COURT: Mr. Scarbrough, this failure to speedy afford a not to Court is not you convinced that truly determine whethеr I am capable of de- represent want to yourself. From the fending myself or not. It has already discussions we have had before leads the been in stated record was to Court to defend you believe that want [counsel] myself and to act on would your my be coun- behalf at [counsel] certain times as selor you might choose, to advise me. you act for yourself at certain times you might Well, THE COURT: the Court had not choose. upon Based the full considera- made a final conclusion as to whether along tion questions with the the Court your request represent yourself has asked the defendant and the defen- granted. The Court has been consid- that, dant’s answers to the Court has ering that continuously. matter And fully matters, considered all of those in- while there by statements made cluding the attitude and demeanor оf the the Court upon which are the record indi- defendant on the various occasions be- cating the Court tentatively Court, fore the the Court feels that the thought, tentatively you considered that Court cannot abandon its responsibility permitted would be represent your- duty of the conduct of the trial in an self, the Court has had the matter under orderly, dignified, and efficient manner. advisement without a definitive ruling The Court is willing farce, not have until this time. a mockery justice judicial pro- [Appellant]: I have the to file cess. The reducing Court is finding its motions. writing conclusions to which will be THE COURT: To the extent— entered of record. All you will be [Appellant]: The speedy motion for tri- copies. furnished In accordance with the al is here—to be dismissed because of findings Court’s and conclusions it is the speedy trial. order of the Court that the defendant’s THE COURT: To the extent request be, and is oral statements of upon the Court hereby, [counsel], denied. That may suggest record any conclusions dif- learned, experienced capable criminal ferent to the conclusions set forth in the defense attorney of the Smith County findings written which the Court now be, Bar hereby, appointed by the signs, findings written which Court to the defendant on the signs represents now the Court’s trial of this post-trial cause and in pro- considered judgment and more mature ceedings Court, until excused by the ruling the final of the Court. rights, responsibili- duties and [Appellant]: I request still the law li- traditionally imposed ties upon and ac- Honor, brary, my- Your and to defend attorney corded a defense in the trial of self. And law have the case, including pre-trial criminal do so.” post-trial proceedings.
[Appellant]: supposed We are “Findings to be trial court’s and Conclusions having pre-trial today, Honor, Your Regarding Request Defendant’s for Self- to consider whether I legally eligible am Representation” appear margin.1 in the *8 read, "Findings" pertinent part: 1. The in 2. represent That defendant does not want to 'T. year attorney, That defendant is a without the assistance old man of of an average intelligence, training, but but wants with no ed- to choose what role the defendant ucation, experience legal procedures, plays in in the conduct of his defense and what comprehension understanding attorney plays minimal of role his in the conduct of his the rules of evidence or of the criminal law or defense. techniques. trial 3. ensuing hearings appellant ing pretrial Standby conduct the counsel was directed to dispense desire to reiterated his point personally proceedings in the case from this himself, to no represent Appellant counsel and arraigned was a sec- with forward. On of dur- ond time. a number occasions avail.2 defendant, of attorney pointed at the whim the an to be at counsel That defendant wants call, doing orderly procedure and wants in the court his beck what defendant obstruct would attorney and when defendant the to do the fair interfere with the administration and attorney wants the to do it. justice. 4. 15. attorney the defendant wants his to That pre- furnishing defendant law books to That sign pre-trial to file motions for the defendant represent cause pare himself himself will to by pre-trial prepared and motions have been delay commence- in both the unreasonable [counsel], who, following the Court’s initial is completion such and and that ment interrogation request on" to of defendant his purpose for and intent defendant’s unstated himself, represent appointed by the court request books. the for law represent capacities "in to the defendant such 16. by decided Court”. as the That, request for law but for defendant's 5. represent prepare books in order to himself, himself to request represent That defendant’s to him- gone have to trial the the case would upon attorney acting an self conditioned 1986, 17, February a valid and week of unless findings defendant’s behalf as found in num- motion for continuance had meritorous [sic] 2 and bered 3 above. granted. filed and been 6. 17. request represent That defendant’s to him- permitting That defendant to conduct being uрon is further conditioned his self his in the above trial and defense manner prepare law order to furnished books in to by the court to be defendant’s desire found represent himself. by of its and would be a surrender the court 7. responsibility duty of the and for conduct knowingly, That defendant does intelli- dignified, orderly, in an and efficient gently represen- competently and choose self likely result in a farce manner will tation. justice judicial process." mockery of and the 8. only hybrid form That defendant chooses behalf of of counsel’s first actions on 2. One representation again again situ- off —an hearing request and obtain a ation. appellant’s competency trial. to stand determine 9. 28, May hearing 27 and 1986. was held That defendant does not have the under- jury Ironically, the ultimate issue for the standing pitfalls of sеlf- resolve, by in final representation as framed the advocates sufficient him to enable intelligent argument, choice to was unable make him- was whether lawyer self. with a reasonable “to consult with his understanding[,]’’ 10. degree 46.- Article rational or, V.A.C.C.P.; rather, attitude 02, 1(a)(1), That defendant’s demeanor and was sim- Sec. appearing when first before the on Jan- court unwilling jury ply him to do so. That found 2, hostility uary [sic] bordored lawyer unwilling consult his but able resentment. certainly in favor of seem to militate would concluding appellant genuinely 11. not wish did and, respectful courteous That defendant’s trial. to conduct his counsel subsequent interroga- attitude exhibited in compound irony, at the conclusion To by the were the of the influ- tions result hearing ap- competency the trial court held appointed counsel ... without ence contempt speaking out pellant of court which, defendant's attitude and demeanor arguments explain during attempt in an final would, be, his first will exhibited in him. not wanted counsel he had appearance the court—intolerable. before subsequently supplemental filed trial court The findings 12. appellant’s request self relevant to defendant, notwithstanding his state- That appellant’s con- representation, effect that to the contrary, truly to the does not want ments hearing tumacy competency indicated represent himself. representation at trial self that to allow him 13. guarantee disruption, "dispossessing only would give truly does not want to That defendant judge." right, knowingly up and does not hearing, competency counsel after A week intelligently to counsel. waive his withdraw, citing apрellant’s motion filed a 14. cooperate own At in his defense. refusal to permitting conduct of the trial That observing defendant, alternating hearing on June the manner desired attorney simply experi- appointed ap- newly from defendant the conduct thereof
92 immaterial; opinion original
In its the appropriate is submission himself appeals upon court of question competent relied he whether court’s appellant actually Moreover, conclusion that choose endeavor. its requested, representation, not self but “a may cause some inconvenience exercise right in conjunction disruption proceedings, in the trial even so representation by” with Directed counsel. long obstruction, as it is not a calculated rehearing to instances in the record deprive right, cаnnot accused appellant appeared wherein unequivocally Id., once asserted. n. 46. right repre- invoke his to undiluted self right self-represen It is true that “the sentation, appeals the court of noted that tation does not attach until it has been may “a right defendant forfeit his to self- unequivocally asserted.” Fun- clearly representation by taking vacillating posi- State, derburg 637, v. (Tex. 717 642 S.W.2d alia, issue[,]” citing, tions on the inter Cr.App.1986). Perceiving appellant to vac (CA5 Wainwright, Brown v. 665 607 F.2d illate, appeals equated the court of vacilla 1982). equivocation cause, tion in this with
thereby
appellant
held
failed to assert his
II.
right
representation.
to self
We do not
however,
agree,
presented
that on the facts
In
competently
order
and intelli
appellant
it can be said that
consсiously
gently to invoke his Sixth Amendment
vacillated.
right
represent himself,
an accused
“should be made aware of the
least,
Nominally,
at
in
disadvantages
self-representation,
so
his
representation
voked
to self
as
the record will establish
‘he
early
colloquy
as the second
with the trial
doing
he is
knows what
and his choice is
”
no time
2. At
from this
Faretta v. Cali
eyes open.’
made with
point
position
on did he
from the
deviate
fornia, 422
835,
2541,
at
U.S.
95
at
45
S.Ct.
want counsel alone did not
rep
that he
ante,
L.Ed.2d at 582. As we have shown
resent him.
It is well established that an
in this cause
provided
has no
hybrid
accused
absolute
problems in
extensive awareness of
State,
Landers v.
representation.
E.g.,
undertaking so that his decision would not
(Tex.Cr.App.1977);
Webbv.
ence the same court de- on June trial hearing appel- nied counsel's motion. At this sented counsel. proceed pro lant reiterated his wish to se. Trial
93 rep- hybrid and self him both appellant’s persistent In the face of court denied resentation. right representation his assertion of to self hearings, finding over the course of several of the part hold that as We now alternative, it palatable no doubt more disad dangers and admonishments appellant the the trial offered “mid vantages reрresentation, an accused of self ground” hybrid representation. dle Evi representa should be made aware self preferred dently appellant this alternative court should exactly is that. tion well, readily enough. he accepted it has no plain it to the accused that he make nothing There is contained in his answers an ac standby to counsel. right Where however, to inquiries, the trial court’s to cused, asserting a for “self” though desire suggest thereby contemplated he relin prefer representation, indicates he would quishing the ultimate control over course represen to actually hybrid amounts what defense, abandoning or the appear his tation, the court should decide at the trial fact, —in pro quite ance of a defendant se practicable to al earliest moment whether contrary. agree appellant’s We cannot it, not, the ac low and if should inform standby acceptance counsel served to he two cused must choose instead between prior right repre his to self waive asserted mutually rights right self exclusive to —the Nevertheless, in this sentation cause. like representation representation by or
Tantalus, appellant
right
watched the
re
there
“middle
counsel—and that
is no
partake.
attempted
cede
moment he
ground.”
hybrid representation
not to
If
is
option,
must
permissible
the accused
be
Moreover,
assuming accept
even
circumstance,
made
of that
aware
standby
necessarily
ance of
counsel were
informed,
given
opportunity,
thus
right
inconsistent with assertion of the
right
representation.
rеassert
to self
his
representation,
self
in our
the record
view
Thereafter,
con
if he continues to insist on
support
factfinding
fails to
trial court’s
defense,
ducting
only
his own
but
with
appellant’s
desire to
counsel,
his
may
selective
it
said
aid of
availability
was “conditioned” on
of stand
representation
assertion of the
self
1,n.
counsel. See
fur
ante. Without
“conditional,”
thus, equivocal
—but
questioning,
ther
the trial court could not not before.
possibly have made this determination.
must also
the trial
We
discount
Though appellant
made it clear
Janu-
appellant’s
finding
court’s
assertion
counsel,
he did
ary 2 that
the trial
want
representation
“condi
to self
standby
court made
counsel available on
request
tioned” on
for the use of law
his
day,
January
17. On that
library,
that notion is
books and the law
being
coursе
admonished of
Although
by the
positively refuted
record.
disadvantages
rep-
of self
that,
his mo
he
consistent with
asserted
resentation, appellant acknowledged that
tion,
library,
like to”
he
use the law
“would
“help” him,
he
like counsel to
would
“be
assured
court he would
every
use
that he “could
some advice
now
ready,” and
ready whenever the
Nonetheless, he assured the
and then.”
sufficiently
prepared
denied he
“not
it all
court he wanted “to handle
By
ap
represent”
informed
himself.
through[.]”
clearly willing to
way
While
willing
proceed
pearances appellant was
counsel, appellant
standby
accept
library
aid
access to the law
whether afforded
unwavering
po
an
desire to
displayed
thus
not. A trial court concerned about
defense, for better or
delay
conduct his own
under such circumstances
tential
subsequently
deny
That
relied
access
simply
should
accused
worse.
pretrial
resources,
standby
prepare
legal
counsel
mo-
see United
v. Wil
States
1982),
son,
(CA9
signature
does not demon-
tions for
F.2d
denial,
whether,
light
that,
of that
help,
had he
ascertain
been denied
strate
request
represen
in his
for self
persists
he
he
not still have chosen
if the
thereafter
Again,
accused
February
Yet on
18 the trial
tation.
himself.
representation
might sympathize
demands both self
(Tex.Cr.App.1982),
and ac-
resources,
legal
cess to
judge’s
permit ap
be concluded the trial
decision not to
*11
However,
right
pellant
represent
that his invocation of the
to
himself.
rep-
to self
at
1982,
State,
“conditional,”
hence,
resentation is
and
least since
also see Johnson v.
Here,
equivocal.
(Tex.Cr.App.1984),
WHITE, J.,
in
State,
conсurs
the result.
(Tex.Cr.App.1983).
that the can become the defendant’s
law clerk. course,
Of where it has been determined self-rep-
that the defendant has the
resentation, it would be ludicrous and as-
inine anyone argue that such a de- entitled, directly
fendant either
indirectly, legal to access to books and re-
search purpose prepar- materials for the
ing his ap- motions and his defense. It
pears 16, 1987, to me that on granted judge appellant’s request
the trial himself, and had made it clear attorney ap- that the he had pointed stand-by going only counsel was Houston, Sparks, appel- Kenneth W. clerk, appellant’s to be law the issue that is lant. *13 actually before this Court would have be- Holmes, Jr., B. Atty., John Dist. come moot. Molder, Curry Alan and Robert Asst. Dist. Houston,
Attys., Huttash, Robert State’s Austin, Atty., for the State. OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW CLINTON, Judge. parte Ray Ex Glenn LOFTON, Appellant, pretrial petition This is a for habeas cor- pus seeking relief to bar a second trial for v. the same offense after the trial court Texas, Appellee. The STATE of granted a motion for trial on new conceded- ly “unspecified grounds.”1 petition No. 182-89. insufficient, contends evidence was and al- Texas, leges Court of Appeals Criminal that his “motion for new based evidence, En newly Banc. available was there- granted[.]” 3, after para. Tr. VI. June 1989. procedural Pertinent facts of the case Rehearing Sept. Denied 1989. appeals were traced the court of affirming judgment of the trial court State, denying relief. Lofton (Tex.App. S.W.2d 495 [14th] — Houston 1989). However, applicant now asserts appeals compre that the court of did not contention, hend the true thrust of his viz: Regardless granting of reasons for a new trial, an accused who thereafter files and presents pretrial petition for writ of habe- corpus raising jeopardy bar on account Applicant, opinion emphasis 1. Brief at 1. All unless otherwise indicated. throughout supplied by the writer of this