Fulbright v. State

DAVID L. RICHARDS, J. (Assigned),

dissenting.

Because the record does not contain any of the trial court’s admonishments to appellant concerning the dangers and disadvantages of self-representation — an absolute requirement under established Texas Court of Criminal Appeals precedence — I respectfully dissent.

The majority repeatedly asserts that appellant was “adequately” admonished about these dangers and disadvantages. I disagree. Indulging every inference in support of the State, the record, at most, shows only that appellant told the trial court that he was aware of the dangers and disadvantages of self-representation, and that the trial court, at some point, admonished appellant off-the-record on that subject. Whether those admonishments were proper or improper is unknown. The only thing we can say with *237 any certainty is that the admonishments were not given on the record.

In Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992), the court held that reversal is required where the record does not contain the admonishments of the dangers and disadvantages of self-representation. In the instant case, the record does not contain the admonishments given to appellant. That circumstance alone should control our decision.

The Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution provide that a defendant in a criminal trial has the right to assistance of counsel. This right may be waived and a defendant may choose to represent himself at trial. See Faretta v. California, 422 U.S. 806, 819-20 , 95 S.Ct. 2525, 2533 , 45 L.Ed.2d 562 (1975). However, a waiver of the right to counsel will not be lightly inferred, and the courts will indulge every reasonable presumption against the validity of such a waiver. See Geeslin v. State, 600 S.W.2d 309, 313 (Tex.Crim.App.1980). The prosecution has a heavy burden to demonstrate that a waiver of counsel was made: 1) competently, 2) knowingly and intelligently, and 3) voluntarily. Collier v. State, 959 S.W.2d 621, 625-26 (Tex.Crim.App.1997) (citing Godinez v. Moran, 509 U.S. 389, 400-01 , 113 S.Ct. 2680, 2687 , 125 L.Ed.2d 321 (1993)), cert. denied, 525 U.S. 929 , 119 S.Ct. 335 , 142 L.Ed.2d 276 (1998); Faretta, 422 U.S. at 834-36 , 95 S.Ct. at 2541 ; see also Geeslin, 600 S.W.2d at 313 . The decision to waive counsel and proceed pro se is made “knowingly and intelligently” if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. See Collier, 959 S.W.2d at 626 ; Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App.1991) (citing Faretta, 422 U.S. at 836 , 95 S.Ct. at 2541 ; Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984)). The decision is made “voluntarily” if it is uncoerced. Collier, 959 S.W.2d at 626 .

When a defendant asserts his right to represent himself pro se, the trial court must focus not bn a traditional waiver-of-counsel analysis, but on whether the defendant is aware of the dangers and disadvantages of self-representation. See Goffney, 843 S.W.2d at 585 ; Johnson v. State, 760 S.W.2d 277, 278 (Tex.Crim.App.1988). 1 A defendant should be made aware of the dangers and disadvantages of self-representation so that the “ ‘record will establish’ that one who would represent himself ‘knows what he is doing and his choice is made with eyes open.’ ” Goffney, 843 S.W.2d at 585 ; see also Faretta, 422 U.S. at 836 , 95 S.Ct. at 2541 . This admonishment must be on the record. Goffney, 843 S.W.2d at 585 ; Henderson v. State, 13 S.W.3d 107, 109 (Tex.App. — Texarkana 2000, no pet.); Walker v. State, 962 S.W.2d 124, 126 (Tex.App. — Houston [1st Dist.] 1997, pet. refd). The admonishments should seek to ensure that the accused is aware of the practical disadvantages of representing himself, that there are technical rules of evidence and procedure, and that he will not be granted any special consideration solely because he asserted his pro se rights. Johnson, 760 S.W.2d at 278 .

*238 Here, while appellant told the trial court that he understood the dangers of self-representation and acknowledged that he had in fact discussed those dangers with the judge on numerous occasions, the record is absent as to precisely what the contents of the discussions were. And although appellant acknowledged that he had represented himself before at trial, the record does not indicate whether he was ever admonished in those proceedings, the substance of those admonishments, the extent appellant participated at trial, or whether appellant understood those admonishments.

There is no formulaic questioning to establish a knowing and intelligent waiver. Blankenship, 673 S.W.2d at 583 . However, a judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all circumstances. Id.

The trial court is charged with the responsibility of making a record. See Goffney, 843 S.W.2d at 585 . The record must reflect that the defendant was fully admonished. See Collier, 959 S.W.2d at 626 n. 8; Goffney, 843 S.W.2d at 585 . The record must be sufficient for a reviewing court to make an assessment that the defendant was made aware of the dangers and disadvantages of self-representation. See Goffney, 843 S.W.2d at 585 ; Johnson, 760 S.W.2d at 279 .

The majority argues appellant’s waiver can be inferred because he validly asserted his right to self-representation. I disagree. The right to be represented by counsel and the right to self-representation are recognized as separate and distinct. See Faretta, 422 U.S. at 819-20 , 95 S.Ct. at 2533 ; see also Lambrecht v. State, 681 S.W.2d 614 , 615 n. 2 (Tex.Crim.App.1984). It is a principal difference between the right to counsel and the right to self-representation that the former is in effect until waived whereas the latter is not in effect unless asserted. See Oliver v. State, 872 S.W.2d 713 , 715 n. * (Tex.Crim.App.1994); see also Burgess, 816 S.W.2d at 428 ; Scarbrough v. State, 777 S.W.2d 83, 92-93 (Tex.Crim.App.1989). Consequently, a valid assertion of the right to self-representation can imply a waiver of the right to counsel in the absence of a written waiver. See Burgess, 816 S.W.2d at 430 . Nevertheless, as a prerequisite to validly asserting the right to self-representation, the defendant must first be made aware of the dangers and disadvantages of self-representation. See id. at 428 ; see also Dunn v. State, 819 S.W.2d 510, 522 (Tex.Crim.App.1991), cer t. denied, 506 U.S. 834 , 113 S.Ct. 105 , 121 L.Ed.2d 63 (1992); Scarbrough, 777 S.W.2d at 92. While Geeslin, 600 S.W.2d at 313 , requires the reviewing court to indulge in every reasonable presumption against the validity of a waiver, the majority presumes the admonishments given to appellant in an off-the-record hearing were proper. True, the trial judge’s instructions to the jury during voir dire intimate to some degree what may have been said off the record between the trial judge and appellant; however, we cannot presume the full extent of those discussions or whether from those discussions appellant demonstrated an understanding of the dangers and disadvantages of self-representation. See Goffney, 843 S.W.2d at 585 ; Geeslin, 600 S.W.2d at 314 .

Moreover, we cannot say that the judge’s instructions to the jury during voir dire were, in and of themselves, sufficient to make appellant aware of the dangers of self-representation, even had they been given directly to appellant. Neither naked admonishments nor the defendant’s bare assertion that he understands his rights are sufficient to pass constitutional muster under the Sixth Amendment. As the *239 Court of Criminal Appeals observed in Blankenship :

A judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right, does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments, thereunder, possible defenses, to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which a plea is tendered.

673 S.W.2d at 583 (quoting Von Mottke v. Gillies, 332 U.S. 708, 723 , 68 S.Ct. 316, 323 , 92 L.Ed. 309 (1948)); see also Martin v. State, 630 S.W.2d 952 , 954 n. 5 (Tex.Crim.App.1982). Here, the judge’s remarks touch on some of the dangers of self-representation, but they do not reflect an examination of all the circumstances so that we can assess appellant’s awareness. See Goffney, 843 S.W.2d at 584-85 ; George v. State, 9 S.W.3d 234, 237 (Tex.App.— Texarkana 1999, no pet.).

Accordingly, on the record before us, I cannot conclude that appellant was adequately admonished of the dangers and disadvantages of self-representation. See Goffney, 843 S.W.2d at 585 ; Geeslin, 600 S.W.2d at 311 ; see also Scarbrough, 777 S.W.2d at 93; compare Martin, 630 S.W.2d at 954 n. 7 with Williams v. State, 925 S.W.2d 272, 275 (Tex.App. — Corpus Christi 1996, no pet.) and Perales v. State, 730 S.W.2d 205, 207 (Tex.App. — San Antonio 1987, no pet.). Because the record does not demonstrate that the trial court adequately admonished appellant of the dangers and disadvantages of self-representation, the trial court faded to satisfy the requirements of Faretta .

Next is the question of harm. In Goff-ney, without conducting a harm analysis, the court of criminal appeals held that failure of the record to reflect that the defendant was properly admonished of the dangers and disadvantages of self-representation warranted reversal under Faretta. See Goffney, 843 S.W.2d at 585 . However, subsequent to Goffney , the court issued a broad mandate in Cain v. State, holding that “[ejxcept for certain federal constitutional errors labeled by the United States Supreme Court as ‘structural,’ no error ... is categorically immune to a harmless error analysis.” 947 S.W.2d 262, 264 (Tex.Crim.App.1997).

“Structural” error, as explained by the Supreme Court, is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991). The Supreme Court has found structural error where the defendant has been denied the right to self-representation at trial and where the defendant was totally deprived of the right of counsel at trial. Accord McKaskle v. Wiggins, 465 U.S. 168 , 177 n. 8, 104 S.Ct. 944 , 950 n. 8, 79 L.Ed.2d 122 (1984); Gideon v. Wainwright, 372 U.S. 335, 344-45 , 83 S.Ct. 792, 797 , 9 L.Ed.2d 799 (1963). However, the Supreme Court has never labeled error under the circumstances of this case as structural. See Johnson v. United States, 520 U.S. 461, 468-69 , 117 S.Ct. 1544, 1549 , 137 L.Ed.2d 718 (1997). Therefore, we are obligated to determine whether, under this appellate record, a meaningful harm analy *240 sis can be conducted. Tex.R.App. P. 44.2(a).

The right to be represented by counsel is fundamental under the Sixth Amendment. See Johnson v. Zerbst, 304 U.S. 458, 463-64 , 58 S.Ct. 1019, 1022-23 , 82 L.Ed. 1461 (1938). Because the error is constitutional, we should apply rule 44.2(a). Tex.R.App. P. 44.2(a). As noted above, lacking a record of the warnings given by the trial judge to appellant concerning the dangers and disadvantages of self-representation, I believe we are required to find trial error. The question is whether the trial court’s error, trying appellant without counsel, was harmless beyond a reasonable doubt. Cf. Williams v. State, 958 S.W.2d 186, 194 (Tex.Crim.App.1997).

In Gideon, the Supreme Court observed:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skills and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Gideon, 372 U.S. at 344-45, 83 S.Ct. at 797 (quoting Powell v. Alabama, 287 U.S. 45, 68-69 , 53 S.Ct. 55, 64 , 77 L.Ed. 158 (1932)); Zerbst, 304 U.S. at 463 , 58 S.Ct. at 1022-23 .

I can conceive of no practical difference in the disadvantages suffered between the defendant who has proceeded to trial without the benefit of counsel he never intelligently waived, and where the court has failed to appoint counsel to an indigent defendant as in Gideon. In the context of a lay defendant (albeit, here a professional, degreed one), a meaningful harm analysis of this error presents a virtually impossible task for the reviewing court. A sister court of appeals recently ruled in Manley v. State, 23 S.W.3d 172, 175 (Tex.App.— Waco 2000, pet. refd) that this error is “categorically immune” from harmless error analysis. Because I can conceive of circumstances under which a harmless error analysis could be conducted (for example, where the defendant was a licensed lawyer experienced in criminal law) I do not agree that the error is categorically immune from harm analysis; however, I do agree that in most cases, no meaningful harmless error analysis is possible for this specific constitutional error.

In Cain the Court of Criminal Appeals recognized that there are certain types of error that may, under the facts of the case, defy meaningful harmless error analysis. 947 S.W.2d at 264 . I believe the circumstances of the instant case call for that conclusion. This same rationale seems implicit in Goffney a pre-Cam decision in which the Court of Criminal Appeals, faced with a similar example of this trial error, affirmed the court of appeals’ decision reversing and remanding the defendant’s DWI conviction for new trial, without conducting a harm analysis. 843 S.W.2d at 585 . Accordingly, lacking the ability, under this record, to perform a meaningful harmless error analysis, I respectfully dis *241 sent to the majority’s decision overruling appellant’s second point.

. In addition to the constitutional requirement that the defendant be properly admonished, the code of criminal procedure requires that a defendant who wishes to waive his right to counsel be fully admonished concerning the dangers and disadvantages of self-representation. See Tex.Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp.2001). The code also requires the trial court to obtain a written waiver of the defendant's right to counsel, complying with the statutory form, but the written waiver is not mandatory if the defendant invokes his right to self-representation. See Burgess, 816 S.W.2d at 431 .