Maddox v. State

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

On original submission we determined that the record in this cause did not reflect that appellant was made aware of the dangers of representing himself. We accordingly reversed and remanded for this failure to admonish appellant. We are now satisfied that this conclusion was erroneous.

The facts are well developed in our original opinion. In denying appellant’s motion to discharge his attorneys, the trial court stated:

“The court has considered the defendant’s motion made herein and the Court denies your motion to discharge your attorneys of record. * * * It is the opinion of the court that the defendant’s attorneys have conducted themselves honorably and to the defendant’s best interests throughout the case, and it’s the court’s opinion that the attorneys will continue to do so.

“The attorneys will remain as counsel and will advise the defendant throughout the remaining phases of the case and will participate in any of the remaining portions of the case that the defendant allows you to participate in. In other words, the court granted to the defendant the option to have his attorneys participate in any of the remaining phases of the case or to conduct his own defense in these remaining phases with the understanding that they are available and present to advise with him throughout .... ” (Emphasis added.)

The record reflects that the attorneys did give appellant advice when he requested it. Further, the record reflects that appellant’s attorneys responded to objections made by the State during appellant’s direct examination of defense witnesses. Appellant’s attorneys also interposed an objection to the court’s charge, and also made several objections during the State’s closing arguments.

Hence we are not presented with situations like those in Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.); Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.); or Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.) in which defendants acted a lone in their self-representation. Rather, we are presented with facts more akin to those in Phillips v. State, 604 S.W.2d 904 (Tex.Cr.App.) In Phillips , as in the case at bar, the defendant was allowed to engage in a form of hybrid representation; that is, partially pro se and partially by counsel. Further, in Phillips and the instant case, defense counsel continued to actively participate in the trial of the cause. In rejecting Phillips’ claim that he was entitled to admonishments concerning the dangers of self-representation, we stated:

“These admonishments are to be given a pro se defendant to insure that he is informed of the dangers involved when he waives counsel. Although appellant partially represented himself in this case, he was also fully represented by counsel. Thus no question of waiver of counsel is involved. Absent such an issue arising, we cannot conclude that the trial court [erred] in failing to admonish appellant as to the dangers, if any, of this form of hybrid representation.”

We find the same principle applicable in the case at bar.

This was the sole ground of error raised in this appeal; however, the record has been reviewed to see if other. grounds should be considered as unassigned error in the interest of justice pursuant to Art. 40.-09, Sec. 13, V.A.C.C.P. None have been found.

*287 The State’s motion for rehearing is granted and the judgment is affirmed.

ONION, P. J., and ROBERTS, DALLY and CLINTON, JJ., dissent.

ON OVERRULING OF APPELLANT’S MOTION FOR REHEARING WITHOUT WRITTEN OPINION