# Landers v. State

> Court of Criminal Appeals of Texas · April 20, 1977 · 550 S.W.2d 272

URL: https://www.frixlaw.com/law-library/cases/9769571

## Case

- **Full name:** Thomas Edward LANDERS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 20, 1977
- **Citations:** 550 S.W.2d 272
- **Precedential status:** Published
- **Opinion:** On rehearing by Douglas
- **Judges:** Douglas, Odom, Phillips, Roberts
- **Cited by:** 193 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/9769571

## How later opinions describe it (automated extraction)

- describing “hybrid representation” as representation in court by means of “both [self-representation] and by counsel acting at the same time or alternating at defendant’s pleasure”
- holding no right to hybrid representation

## Opinion text

OPINION ON STATE’S MOTION FOR REHEARING
DOUGLAS, Judge.
The State’s motion for rehearing is granted. We affirm.
Article 1, Section 10 of the Texas Constitution provides that an accused in criminal cases “shall have the right of being heard by himself or counsel, or both.” The opinion on original submission misconstrues this provision and obliterates the well established distinction between the right to be heard and the right to counsel.
The Constitution should be interpreted in light of conditions existing at the time of its adoption. Mumme v. Marrs, 120 Tex. *276 383 , 40 S.W.2d 31 (1931). See also Cox v. Robison, 105 Tex. 426 , 150 S.W. 1149 (1912); and Jones v. Ross, 141 Tex. 415 , 173 S.W.2d 1022 (1943). Cf. Snodgrass v. State, 67 Tex.Cr.R. 615 , 150 S.W. 162 (1912). Article 1, Section 10, supra, was first adopted in 1836. At that time other states had similar constitutional provisions. A mandate that an accused should have a right to be heard by himself and by his counsel was adopted by New Hampshire in 1774, Pennsylvania in 1776, Delaware in 1782 and by Connecticut in 1818. In 1790 Massachusetts adopted a provision which gave a defendant the right to be heard by himself or his counsel at his election. In 1798 Georgia provided that an accused might be heard by himself or counsel or both. New Jersey in 1776 guaranteed defendants the same privileges of witnesses and counsel as their prosecutors “are or shall be entitled to.” These colonial and early state constitutional provisions were adopted in the context of the English common law.
Originally in England the accused was not permitted to be heard by counsel upon indictment for treason or felony. 1 In practice the English courts did allow counsel to advise the defendant on matters pertaining to the conduct of his case and on questions of law arising upon the trial, and to represent him in collateral matters. Often counsel was permitted to do everything for the accused except address the jury for him. 2
The rule prohibiting counsel for one accused of treason obtained until 1695 when the right to counsel was given by statute. 3 But the rule forbidding the participation of counsel in felony cases stood until 1836. It was also abrogated by statute. 4 Although the rule in misdemeanor cases and, after 1695, in prosecutions for treason was that the defense must be conducted either by the defendant in person or by counsel, both were not permitted to participate in the trial. 5
The accused had always been allowed to plead his cause orally in person. 6 But, since the accused was not allowed to have counsel, his statements covered whatever he wanted to say regarding law, evidence, or argument. In effect, then, the accused “furnished evidence, i. e. material which affected the jury’s belief; but he was not sworn, he had no standing as a witness, and in theory of the law he therefore gave no evidence.” 7
During the period of recorded trials down to the latter part of the sixteenth century, the accused addressed the jury at the proper stage and was questioned freely, as if his statements could influence the outcome. 8 However, the principle of disqualification for interest, which emerged first in civil cases, gradually extended to criminal cases, rendering the accused incompetent to be a witness in his own cause. 9 By the time of James II, just before the Revolution, the courts were expressly repudiating the notion that the defendant’s statements were to be taken as testimony. 10 He could still speak on his own behalf, if desired, but not under oath. 11 The competency of the ac *277 cused to testify under oath was not established in England until 1898. 12
It is beyond dispute that England intended her law, the common law included, to be transplanted to her American colonies. It was the common law that the first generation of colonists knew best in criminal matters, especially its procedures. After the Declaration of Independence, every state except Connecticut and Rhode Island provided by constitution or statute that the common law of England as previously practiced was to remain in force (until such time that it might be altered legislatively). 13
Against this background, it appears that the various constitutional provisions affording the accused the right to be heard were designed to give him the right to testify. This was recognized by Professor Wigmore:
“Under a constitutional clause providing that ‘the accused shall have the right to be heard by himself and counsel,’ the accused of course has a right to testify; this right overriding any other disqualification. . . . ” 14
The harsh common law restrictions upon the right to counsel and the right to be heard were discussed by the United States Supreme Court in Betts v. Brady, 316 U.S. 455 , 62 S.Ct. 1252 , 86 L.Ed. 1595 (1942). The Supreme Court then stated its interpretation of the constitutional provisions:
“In the light of this common law practice it is evident that the constitutional provisions to the effect that a defendant should be ‘allowed’ counsel or should have a right ‘to be heard by himself and his counsel’, or that he might be heard by ‘either or both,’ at his election, were intended to do away with the rules which denied representation, in whole or in part, by counsel in criminal prosecutions, . . ”
Thus, .Article 1, Section 10, supra, and similar constitutional provisions were intended to afford an accused the right to participate and be heard in his trial while at the same time removing the restrictions to full representation and participation of counsel. However, these provisions were not intended to encompass the right to counsel as that right is delineated in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975).
The prior decisions of this Court clarify the distinction between the right to counsel and the right to be heard. In Walker v. State, 32 Tex.Cr.R. 175 , 22 S.W. 685 (1893), the trial court limited defense counsel’s time for argument. On appeal, this Court held that such limitation under the facts of that case denied the accused the right to be heard. The decision was based upon the right to be heard as provided by Article 1, Section 10, supra, and not upon the right to counsel.
In Leahy v. State, 111 Tex.Cr.R. 570 , 13 S.W.2d 874 (1928), the trial court refused to permit the defendant to personally cross-examine witnesses at the hearing on motion for new trial. This Court declared that every provision of the Constitution must be given a construction in line with its reasonable intendment. Interpreting Article 1, Section 10, supra, the Court stated that “if one charged with crime had no counsel, he could not be denied the right to be heard by himself upon his trial, nor could he be denied the right to give his version of the facts and be heard to this extent in any case; likewise, if within proper limitations he desired to address the jury on the facts upon his trial, it would not be proper to deny this privilege.” But the Court concluded that Section 10 does not permit an accused and his counsel to speak at will upon each point debated during the trial. Nor does it allow both to examine and cross-examine witnesses as they choose. The Court then held that the defendant in that case “was heard by counsel, and in those matters appropriate, by himself, but the record fails to show that he was de *278 prived of any right or any advantage by the refusal of the court to allow him to cross-examine these witnesses upon the hearing of the motion for new trial.” (Emphasis supplied).
The recent decision of Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), is also instructive. In.that case, we reaffirmed the rule that an accused does not have the right to be both represented by counsel and also propound his own questions to witnesses and make jury argument in his own behalf. See also Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968); Roberson v. State, 513 S.W.2d 572 (Tex.Cr.App.1974); and Ballard v. State, 514 S.W.2d 267 (Tex.Cr.App.1974).
This Court has consistently interpreted Article 1, Section 10, supra, to allow an accused and his counsel to be heard at trial in appropriate situations, but not to expand or alter the right to counsel or in any way give the accused the right to hybrid representation. Moreover, no other state court has construed such a constitutional provision to give an accused the right to hybrid representation.
The Georgia Constitution provides that “[n]o person shall be deprived of the right to prosecute or defend his own cause, in any of the courts of this State, in person, by attorney, or both.” The courts of that state have interpreted this provision to give the trial court discretion as to whether an accused may conduct any part or all of the cause where he is represented by counsel. See Heard v. State, 126 Ga.App. 62 , 189 S.E.2d 895 (1972), and authorities cited therein. Thus, there is no right to hybrid representation in Georgia. Such representation is a privilege which may be granted “upon timely request.” Heard v. State, supra.
Section 11, Declaration of Rights, Florida Constitution, provides, “[i]n all criminal prosecutions, the accused * * * shall be heard by himself, or counsel, or both.” In Thompson v. State, 194 So.2d 649 (Fla.App. 1967), the defendant contended that this provision secured for him, as a matter of right, the opportunity to address the jury even though he was represented by counsel.
The court rejected that contention and held that the trial court has discretion to limit a defendant’s conduct of the case.
The Oregon Constitution provides that “in all criminal prosecutions the accused shall have the right * * * to be heard by himself and counsel.” In State v. Rogo-way, 45 Or. 601 , 81 P. 234 (1905), the Supreme Court of Oregon interpreted the provision to mean that an accused has the right to be fully heard in his defense by counsel. In that case the trial court limited argument of counsel to one hour. The Supreme Court reversed and held that the time restriction upon counsel’s argument did not permit a full and fair discussion of the case before the jury and thus violated the defendant’s constitutional right to be fully heard.
The Constitution of Alabama provides that “in all criminal prosecutions the accused has the right to be heard by himself and counsel, or either.” The Alabama Supreme Court has stated this provision requires that counsel receive full and fair opportunity to present his client’s defense. Yeldell v. State, 100 Ala. 26 , 14 So. 570 (1894).
An accused in Kentucky is guaranteed the “right to be heard by himself and counsel.” The courts of that state have consistently ruled that the provision means an accused has the right to have his counsel present at each stage of the trial. See Wilcher v. Commonwealth, 297 Ky. 36 , 178 S.W.2d 949 (App.1944), and the authorities cited therein.
In South Dakota, an accused is accorded the right “to defend in person and by counsel.” However, this provision does “not create or guarantee dual rights. * * * An intelligent competent accused must elect either (1) to have an attorney — by employment or by appointment, or (2) to defend himself. He is not entitled as a matter of right to both.” State v. Thomlinson, 78 S.D. 235 , 100 N.W.2d 121 (1960).
In California, a defendant “is not entitled to have his case presented in court both by himself and by counsel acting at the same *279 time or alternating at defendant’s pleasure.” (Emphasis supplied) People v. Hill, 70 Cal.2d 678 , 76 Cal.Rptr. 225 , 452 P.2d 329 (1969), cert. denied 406 U.S. 971 , 92 S.Ct. 2416 , 32 L.Ed.2d 671 (1972). The Supreme Court of Nevada reached the same conclusion in Miller v. State, 86 Nev. 503 , 471 P.2d 213 (1970), even though that state’s constitution provides that an accused “shall be allowed to appear and defend in person, and with counsel . . See also 23 C.J.S. Criminal Law § 979(4), and 21 Am.Jur.2d, Criminal Law, Section 311, which sets forth the general rule that an accused has no right to hybrid representation.
The right of self-representation has been granted in federal proceedings by statute since 1789. See, Section 35 of the Judiciary Act of 1789, 1 Stat. 73 , 92, enacted by the First Congress and now codified in 28 U.S.C. Section 1654 . The federal courts have consistently recognized that an accused has a right to represent himself or to be represented by counsel but does not have a constitutional right to hybrid representation. Lee v. Alabama, 406 F.2d 466 (5th Cir. 1968), cert. denied, 395 U.S. 927 , 89 S.Ct. 1787 , 23 L.Ed.2d 246 (1969); Brasier v. Jeary, 256 F.2d 474 (8th Cir. 1958), cert. denied, 358 U.S. 867 , 79 S.Ct. 97 , 3 L.Ed.2d 99 (a civil case); Duke v. United States, 255 F.2d 721 (9th Cir. 1958), cert, denied, 357 U.S. 920 , 78 S.Ct. 1361 , 2 L.Ed.2d 1365 (1958); United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970 , 93 S.Ct. 1443 , 35 L.Ed.2d 706 (1973); United States v. Conder, 423 F.2d 904 (6th Cir. 1970), cert. denied, 400 U.S. 958 , 91 S.Ct. 357 , 27 L.Ed.2d 267 ; Shelton v. United States, 205 F.2d 806 (5th Cir. 1953), appeal dismissed, 346 U.S. 892 , 74 S.Ct. 230 , 98 L.Ed. 395 ; and United States v. Wolfish, 525 F.2d 457 (2nd Cir. 1975). See also Annotation, 17 A.L.R. 266 , 271, supplemented at 77 A.L.R.2d 1233 , 1241. Significantly, those-hourts- have likewise universally -held that Faretta v. California, supra, does not alter the established rules of hybrid representation. United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied 425 U.S. 940 , 96 S.Ct. 1676 , 48 L.Ed.2d 182 (1976); United States v. Bennett, 539 F.2d 45 (10th Cir. 1976); United States v. Gaines, 416 F.Supp. 1047 (N.D.Ind.1976). And in United States v. Swinton, 400 F.Supp. 805 (S.D. N.Y.1975), the court stated:
“. . . Faretta ratified a consensus within the federal judiciary favoring a constitutional right to pro se status; that consensus has existed side by side with another finding that a defendant’s appearance as co-counsel lies within the discretion of the trial court. The Sixth Amendment does not give any indication that hybrid representation is a right of constitutional dimensions. . . .”
Furthermore, no constitutional provision of another state had been reinterpreted in light of Faretta to accord a defendant the right to hybrid representation. The Oklahoma Constitution provides that an accused “shall have the right to be heard by himself and counsel.” This provision was construed by the Oklahoma Court of Criminal Appeals in Lowe v. State, 58 Okl.Cr. 233 , 52 P.2d 115 (1935), to mean that an accused has the right to testify. Cf. Cannon v. State, 58 Okl.Cr. 451 , 55 P.2d 135 (1936). In the recent decision of Stiner v. State, 539 P.2d 750 (Okl.Cr.1975), the same court considered the impact of Faretta in that state and concluded that an accused has no right to act as co-counsel.
Although Article I, Section 18(a) of the Missouri Constitution gives an accused the right “to appear and defend, in person and by counsel,” such provision has not been construed to mean that a defendant is entitled to hybrid representation. State v. Velanti, 331 S.W.2d 542 (Mo.1960); State v. Ingram, 316 Mo. 268 , 289 S.W. 637 (1926). In State v. Burgin, 539 S.W.2d 652 (Mo.App.1976), the accused contended that in light of Faretta the state constitution entitled him to hybrid representation as a matter of right. The court rejected that contention anc^s^ted: M, .¾,
“Faretta v. California, supra, held only that the Sixth Amendment to the United States Constitution guarantees to a defendant in a state criminal trial the right to defend himself without counsel, and that where a defendant voluntarily and *280 intelligently waives his right to counsel, the state may not force counsel upon him. It was emphasized that Faretta ‘weeks before trial . . . clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel,’ and, consequently, the trial court erred in forcing him ‘to accept against his will a state-appointed public defender . . . ”
Therefore, Faretta v. California, supra, has not altered the meaning of Article 1, Section 10, supra, as interpreted by the many previous decisions of this Court. There is no constitutional right in Texas to hybrid representation partially pro se and partially by counsel.
Chief Justice Burger, then Judge of the United States Court of Appeals for the District of Columbia, discussed the proper roles of the defendant and his counsel at the National Defender Conference in 1969:
“Answering the question ‘who controls the progress of a case — the defendant or his counsel?’ Judge Burger had an emphatic response: ‘The defense lawyer!’ The defendant has only three decisions to make, he pointed out. To plead guilty or not guilty; to have a jury or non-jury trial; and to take the stand or not.
“The ideal and goal, according to Judge Burger, is to establish a system in which the assigned defense counsel will be indistinguishable from the retained defense counsel in skill, as well as manners.”
5 Criminal Law Reporter 2161, 2162.
The opinion on original submission and the dissent to this opinion would destroy years of precedent by misconstruing Article 1, Section 10, supra, and Faretta v. California, supra. If the dissent were adopted, it would distort the proper lawyer-client relationship in criminal cases and would carry the potential for chaos in the courtroom.
If the dissent were the rule, one would have to pity the plight of the defense counsel who would have to put up with an unruly or untrained defendant. In case of a disagreement on a tactical matter, who would control? If the lawyer prevailed in his view of the strategy and a defendant were to be convicted, many claims of ineffective assistance of counsel would be raised. No doubt many civil suits against lawyers would be filed if such a hybrid type of representation were required. For example of the many problems where an accused has acted as co-counsel, see Williams v. State, 549 S.W.2d 182 (1977).
When it is not required under the Constitution of the United States or the Constitution of Texas, we will not force trial judges to sit where there is so great a likelihood of trials being farces and mockeries of justice.
If this new proposed doctrine of hybrid representation were allowed in the trial of a case, then the Constitution of Texas would allow such representation in the appellate process because there is no limitation in Article 1, Section 10 as to when an accused may be heard.
The position of the dissent is contrary to the decisions of this State and of all the other jurisdictions which have the same or similar constitutional provisions. We give great weight to those decisions.
The State’s motion for rehearing is granted and the judgment is now affirmed.
. 1 Chitty, Criminal Law, 406 (5th Am.Ed.)
. 1 Chitty, supra.
. 7 Will. 3 , c. 3, section 1.
. 6 & 7 Will. 4 , c. 114, sections I and II.
. See Betts v. Brady, infra, and the discussion contained therein.
. Levy, Origins of the Fifth Amendment, 324 (1st ed. 1968).
. II Wigmore, Evidence, Section 575 at 684 (3d ed. 1940).
. Sir James Stephen, 1 A History of the Criminal Law of England 325, 377, 440 (1883).
. II Wigmore, supra, Section 575 at 685.
. See, e. g., 1678, Coleman’s Trial, 7 How. St.Tr.' 1, 65 (Coleman: “I came'home the last day of August”; L.C.J. Scroggs: “Have you any witness to prove that?”; Coleman: “I cannot say I have a witness”; L.C.J.: “Then you say nothing”); 1681, Colledge’s Trial, 8 How. St.Tr. 549, 681.
. Levy, Origins of the Fifth Amendment, supra, at 324.
. St. 1898, section 1.
. Levy, Origins of the Fifth Amendment, supra, 336-338.
.II Wigmore, supra, Section 579 at 701-02, fn. 4.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769571. Public record. Not legal advice.