holding that waiver of right to self-representation may be found if it reasonably appears to court that defendant has abandoned his initial request to represent himself
How later courts described this case
- holding that waiver of right to self-representation may be found if it reasonably appears to court that defendant has abandoned his initial request to represent himself
- concluding that a record sufficiently demonstrates that appellant abandoned his request to represent himself
- holding defendant abandoned right to self-representation when he informed the trial court he decided to accept attorney’s assistance
- noting that this situation constitutes a “waiver of a waiver insofar as the defendant waives his right to waive appointed counsel”
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
dissenting.
It is elementary that if a party untimely files a formal bill of exception, it will not be considered by the appellate court in disposing of a ground of error. Ortega v. *643 State, 493 S.W.2d 828, 830-831 (Tex.Cr.App.1973). Also see Art. 40.09, Section 6, V.A.C.C.P., prior to amendment. All of what purports to be formal bills of exception that were filed in this cause by both appellant and the State were untimely filed. Therefore, they cannot be considered in disposing of appellant’s ground of error asserting that he was deprived of his constitutional right to represent himself. The majority, as did the court of appeals, acts egregiously in considering what purports to be formal bills of exception by the parties. In considering the purported formal bills of exception, I believe this Court is establishing bad precedent that will in the future come back to haunt it.
Under the provisions of Art. 40.09, supra, as worded when the purported supplementation of the record occurred in this cause, there were only two ways that a party could legally supplement the record, “to make the record speak the truth,” and that was either pursuant to Art. 40.09, Section 6(b), i.e., “A bill of exception shall be a necessary predicate for appellate review only if the matter complained of is not otherwise shown by the record as herein provided ...,” or by making an objection to the record pursuant to Art. 40.09, Section 7, V.A.C.C.P., as then worded.
I acknowledge that this Court has created an exception to the legal rules, see Davis v. State, 499 S.W.2d 303 (Tex.Cr. App.1973); Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975), cf. Jones v. State, 564 S.W.2d 718 (Tex.Cr.App.1978). However, I find that in each instance where this Court has allowed the exception to be invoked, it has always merely authorized the adding to the record of appeal that which previously existed but was not timely placed in the record of appeal. That, however, is not this case.
The legal record that is before us for review clearly reflects that appellant invoked his right of self-representation and the trial court violated what the Supreme Court stated in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975). The majority, as did the court of appeals, errs in denying appellant relief.
Even considering what this Court should not consider, the record clearly reflects that appellant’s ultimate acceptance of counsel was not done willingly, but, instead, was the acceptance of what was then a known fact, namely, that under no circumstances was the trial judge going to permit appellant to represent himself.
Because the majority errs in many ways, I respectfully dissent.