The Court in Martin “observed that prior decisions of this Court which had iterated exacting ‘requisites’ for establishing a knowing waiver of counsel, [e.g., Barbour v. State, 551 S.W.2d 371 (Tex.Cr[im].App. 1977); Goodman v. State, 591 S.W.2d 498 (Tex.Cr[im].App. 1980); and Geeslin v. State, 600 S.W.2d 309 (Tex.Cr[im].App. 1980)], had read Faretta incorrectly.”
How later courts described this case
- The Court in Martin “observed that prior decisions of this Court which had iterated exacting ‘requisites’ for establishing a knowing waiver of counsel, [e.g., Barbour v. State, 551 S.W.2d 371 (Tex.Cr[im].App. 1977); Goodman v. State, 591 S.W.2d 498 (Tex.Cr[im].App. 1980); and Geeslin v. State, 600 S.W.2d 309 (Tex.Cr[im].App. 1980)], had read Faretta incorrectly.”
- noting the rules of appellate procedure “do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals”
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
dissenting.
The issue that is before this Court is not whether Clarence Joseph Lambrecht, appellant, affirmatively, knowingly, intelligently, and voluntarily waived his right to the assistance of counsel, because the record clearly reflects that he affirmatively, knowingly, intelligently, and voluntarily waived his right to have the assistance of counsel. The issue that should be, but is not decided by the majority is whether the record clearly reflects that appellant was adequately warned as to the dangers and disadvantages of self-representation, cf. Johnson v. State, 614 S.W.2d 116, 119-120 (Tex.Cr.App.1981) (Opinion on State’s Motion for Rehearing), which admonishment was mandated by the Supreme Court in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975). Such a claim, that the trial judge did not so admonish the appellant, is of constitutional dimension and may be raised as late as the filing of the motion for rehearing in the court of appeals. See and compare Lopez v. State (Tex.Cr.App., No. 509-83, March 28, 1984) (the issue of jury waiver may be raised for the first time on discretionary review.) Also see Howeth v. State, 645 S.W.2d 787 (Tex.Cr.App.1983), in which this Court had occasion to grant a defendant’s petition for discretionary for one reason, but actually reviewed unassigned error in the form of sufficiency of the evidence — even though the court of appeals had failed or declined to consider this issue, presumably because the issue was not presented to that court for review. The issue was decided by this Court ex mero motu or ex proprio motu or sua sponte, because sufficiency of the evidence to support a conviction implicates the Fourteenth Amendment to the Constitution of the United States and the due course of law clause of the Texas Constitution.
However, the majority opinion, without limitation or restriction, states the following: “The Rules of Post Trial and Appellate Procedure in Criminal Cases governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals. See Noel v. State, (Tex.Cr.App., No. 827-83, delivered March 14, 1984).” This statement, as far as applicable to the State, is correct. Unfortunately, by its failure to also state that in Noel v. State, supra, this Court restricted and limited this holding to the State, because “we find no analogous constitutional guaranty to, or protection of, the State, to those contained in the Due Process Clauses of our State and Federal constitutions protecting citizen,” the majority opinion leaves a false impression, that such a rule of law is applicable to both the defendant and the State. That is simply not so. Also see Todd v. State, 661 S.W.2d 116, 118 (Tex.Cr.App.1983).
*617 The constitutional issue of whether the trial judge warned appellant of the dangers and disadvantages of self-representation is squarely before this Court and cries out for an answer. The majority, however, without much finesse I might add, refuses to decide the issue, but tells the appellant in note 4 that “Our action today is without prejudice to appellant ⅛ pursue postconviction remedies pursuant to Chapter 11 of the Code of Criminal Procedure...” Compare, however, what the author of the majority opinion stated in the dissenting opinion he filed in Dees v. State, 676 S.W.2d 403, 408 , (Tex.Cr.App.1984), “The message the Court sends in note 1 reveals the folly in what it is doing today. Thus, wasted are the time, efforts and costs expended by all involved following the judgment of the trial court, in favor of having them replicated in another procedural setting...” Is that not exactly what the majority is doing in this instance?
Faretta held that the trial court in that cause constitutionally erred when it ruled that the defendant in that cause could not represent himself. Faretta also made the distinction between the right to counsel and the right to self-representation, and held that the right to self-representation arises independently of the right to have an attorney, or the waiver thereto. In this instance, the record unequivocally reflects that appellant affirmatively, intelligently, voluntarily and knowingly waived his right to counsel. Furthermore, but as the majority opinion points out, the trial court furnished appellant with standby counsel.
However, the Supreme Court in Faretta mandated that before a defendant is permitted to represent himself, the record must clearly establish that he knew what he was doing and his choice was made with his eyes open, i.e., he must be admonished by the trial judge as to the dangers and disadvantages of self-representation.
In this instance, the record clearly reflects that the trial judge did not admonish the appellant as to the dangers and disadvantages of self-representation. The record is totally devoid of any of the admonishments about the dangers and disadvantages of self-representation required by Faretta . The failure of the record to show that appellant was adequately warned as to the dangers and disadvantages of self-representation requires that appellant’s conviction be reversed. The majority errs in not reversing the appellant’s conviction.
I respectfully dissent.