# Scarbrough v. State

> Court of Criminal Appeals of Texas · June 14, 1989 · 777 S.W.2d 83

URL: https://www.frixlaw.com/law-library/cases/9677140

## Case

- **Full name:** Danny Ray SCARBROUGH, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 14, 1989
- **Citations:** 777 S.W.2d 83; 1989 Tex. Crim. App. LEXIS 133; 1989 WL 62557
- **Precedential status:** Published
- **Opinion:** Concurrence by Teague
- **Judges:** Clinton, Teague, White, Campbell, Duncan
- **Cited by:** 151 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677140

## How later opinions describe it (automated extraction)

- holding that although a defendant does not have an absolute right to hybrid representation, a trial court may permit it in its discretion
- observing that the choice to represent oneself must be knowingly and intelligently made but “need not be wise” and that an accused must be permitted to conduct his own defense, even if ultimately to his own detriment, if that is his informed decision
- holding that there is no right to “hybrid” representations—i.e., partially pro se and partially by counsel — although it can be permitted
- holding trial court must admonish person asserting right of self-representation that he has no right to standby counsel

## Opinion text

TEAGUE, Judge,
concurring.
With the exception of two sentences contained on page 17 of the majority opinion, I join the majority opinion.
Had what occurred in this cause, concerning the request by Danny Ray Scarb-rough, henceforth appellant, to represent himself, occurred prior to when this Court decided Martin v. State, 630 S.W.2d 952 (Tex.Cr.App.1982), I might sympathize with the trial judge’s decision not to permit appellant to represent himself. However, at least since 1982, also see Johnson v. State, 676 S.W.2d 416 (Tex.Cr.App.1984), and Blankenship v. State, 673 S.W.2d 578 (Tex.Cr.App.1984), which reflect how this Court finally grasped what the Supreme Court in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1974), had stated and held on the issue of self-representation, this Court has made it unequivocally clear, where it is undisputed that the defendant wanted to represent himself and was made aware of the dangers and disadvantages of representing himself, that affirmative efforts of a trial judge to prevent a defendant from representing himself will be nullified by a reversal. Previously, this Court decided the issue almost solely on whether the defendant had waived his right to the effective assistance of counsel, and, where the defendant was permitted to represent himself, the trial court’s judgment was usually reversed after this Court found that the defendant was not shown to have affirmatively waived his right to counsel. See, for example, Murphy v. State, 644 S.W.2d 487 (Tex.Cr.App.1983). Of course, if the record affirmatively showed that the defendant waived his right to counsel, and the trial judge refused to permit him to represent himself, the trial judge also got reversed. Thus, back then, when it came to whether to permit a defendant to represent himself, because of how this Court had interpreted Faretta prior to 1982, trial judges were in a catch-22 situation. It appears that no matter what they did they got reversed. Also see Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.1980). However, at least since 1984, if a trial *95 judge who is confronted with the issue of whether to permit a defendant to represent himself will take the time to carefully read the above cases decided at least since 1984, he should no longer be faced with any sort of dilemma. The issue in this cause arose in 1986, which was long after Martin, Johnson, and Blankenship were decided.
The record before us makes it absolutely and unquestionably clear, although perhaps done in good faith, that the trial judge was simply not going to permit appellant to represent himself at his trial. It is or should be obvious to almost anyone who reads the record before us that at every step of the way the trial judge was constantly on the look-out for a legal way to justify his not permitting appellant to represent himself, or at least to legally obstruct appellant’s desire to represent himself. The learned trial judge clearly erred.
In its “Supplemental Per Curiam On Motion For Rehearing” opinion, the court of appeals alluded to the trial judge’s finding that “[appellant’s] request for law books was a calculated attempt to cause unreasonable delay.” However, there is absolutely no evidence in the record to support this finding, and the trial judge’s finding simply amounts to nothing less than another reason, no, an excuse, why he was not going to let appellant represent himself.
I only write because I am concerned that the following two sentences in the majority opinion might in the future cause another learned trial judge to be reversed.
A trial court concerned about potential delay under such circumstances should simply deny an accused access to legal resources, see U.S. v. Wilson, 666 F.2d 1241, 1245 (9th Cir.1982), and ascertain whether, in light of that denial, he persists in his request for self representation and access to legal resources, that it may be concluded that his invocation of the right to self representation is “conditional,” and hence, equivocal.
U.S. v. Wilson is not completely on point because there the defendant was actually given access to a law library for preparation of a motion that he himself prepared and filed.
In this regard, I do not disagree with the majority opinion’s conclusion that “in view of appellant’s express willingness to proceed with or without legal materials, we cannot credit the trial court’s conclusion that his invocation of the right was conditional, or that his ‘unstated purpose and intent’ in requesting those materials was ‘to cause unreasonable delay in both the commencement and completion of trial.’ ” Thus, the ancillary issue of whether an incarcerated defendant who is awaiting trial and who is entitled to represent himself has a fundamental constitutional right of access to an adequate prison law library, under reasonable conditions, becomes moot in this instance, and this Court should not be suggesting to the members of the Bench that a trial judge can deprive a defendant of his right to self-representation if the defendant makes a request for law books or requests the use of the prison law library, which is what I believe the majority opinion inadvertently does by the above two sentences. On the right of a prisoner to use law books, the right to use a prison law library, and the duty of the State to provide an adequate law library, see Bounds v. Smith, 430 U.S. 817, 828 , 97 S.Ct. 1491, 1498 , 52 L.Ed.2d 72 (1977); Cruz v. Hauck, 627 F.2d 710, 719 (5th Cir.1980); and Dreyer v. Jalet, 349 F.Supp. 452 (S.D.Tex. Houston Div.1972). Factually, however, these cases are not on point to any issue before this Court to resolve.
If a defendant is entitled to represent himself, and there is a prison law library, a defendant’s request to use the law library should pose no real problems. However, if no prison law library exists, a serious problem may exist for the trial judge, if the defendant demands access to law books and research material for the purpose of preparing his motions and his defense, if any. In that regard, I do not envy such a trial judge. However, as long as McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct. 944 , 79 L.Ed.2d 122 (1984), which I believe is one of the most demeaning to lawyers decision ever handed down by the Supreme Court, remains on the books, if no prison law library exists, the trial judge should ap *96 point the defendant “stand-by” counsel so that the lawyer can become the defendant’s law clerk.
Of course, where it has been determined that the defendant has the right of self-representation, it would be ludicrous and asinine for anyone to argue that such a defendant is not entitled, either directly or indirectly, to access to legal books and research materials for the purpose of preparing his motions and his defense. It appears to me that on January 16, 1987, had the trial judge granted appellant’s request to represent himself, and had made it clear to appellant that the attorney he had appointed as stand-by counsel was only going to be appellant’s law clerk, the issue that is actually before this Court would have become moot.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677140. Public record. Not legal advice.