Simpson Thompson v. State ( 2014 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-13-00422-CR
    SIMPSON THOMPSON,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 13th District Court
    Navarro County, Texas
    Trial Court No. D34995-CR
    MEMORANDUM OPINION
    Simpson Thompson appeals from a conviction for possession of a controlled
    substance less than one gram. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010).
    Thompson complains that the trial court erred by refusing his oral motion for
    continuance to allow him ten days to prepare for trial and that his waiver of right to
    counsel was invalid. Because we find that the waiver of Thompson's right to counsel
    was invalid, we reverse the judgment and remand this proceeding to the trial court for a
    new trial.
    Waiver of Right to Counsel
    In his second issue, Thompson complains that his waiver of right to counsel was
    invalid because the trial court did not properly admonish him prior to the execution of
    his waiver pursuant to Faretta v. California, 
    422 U.S. 806
    , 821, 
    95 S. Ct. 2525
    , 2534, 45 L.
    Ed.2d 562 (1975).
    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. U.S. CONST. amend. VI; TEX.
    CONST. art. I, § 10. However, this right to counsel may be waived, and the
    defendant may choose to represent himself at trial. Faretta v. California,
    
    422 U.S. 806
    , 821, 
    95 S. Ct. 2525
    , 2534, 
    45 L. Ed. 2d 562
    (1975). Although the
    right to self-representation is absolute, 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. George v. State, 
    9 S.W.3d 234
    , 236 (Tex. App.—Texarkana 1999, no pet.) (citing Johnson v.
    Zerbst, 
    304 U.S. 458
    , 464, 
    58 S. Ct. 1019
    , 1023, 
    82 L. Ed. 1461
    (1938), and
    Jordan v. State, 
    571 S.W.2d 883
    , 884 (Tex. Crim. App. 1978)).
    How does a court decide whether a valid waiver of counsel exists? Faretta
    requires that (1) the appellant make a "knowing and intelligent" waiver;
    and (2) the appellant must be made aware of the "dangers and
    disadvantages of self-representation." 
    Id. (citing TEX.
    CODE CRIM. PROC.
    ANN. art. 1.051 (Vernon Supp. 1999)); 
    Faretta, 422 U.S. at 835
    , 95 S. Ct. at
    2541. To decide whether a defendant's waiver is knowing and intelligent,
    the court must make an inquiry, evidenced by the record, which shows
    that the defendant has sufficient intelligence to demonstrate a capacity to
    waive his right to counsel and the ability to appreciate the practical
    disadvantage he will confront in representing himself. 
    George, 9 S.W.3d at 237
    (citing Archie v. State, 
    799 S.W.2d 340
    , 344 (Tex. App.—Houston [14th
    Dist.] 1990), aff'd, 
    816 S.W.2d 424
    (Tex. Crim. App. 1991)). The court must
    determine not only that the defendant wishes to waive his right to
    counsel, but that he understands the consequences of such waiver. 
    Id. Although it
    is not mandatory that the warnings be given in writing, we
    have previously held that the record must show that the defendant
    understands the consequences of his waiver. Goffney v. State, 812 S.W.2d
    Thompson v. State                                                                        Page 2
    351, 352 (Tex. App.—Waco 1991), aff'd, 
    843 S.W.2d 583
    (Tex. Crim. App.
    1992). It is not enough that the record show conclusions by the trial court
    that the defendant is aware of the dangers and disadvantages of self-
    representation.
    Griffith v. State, No. 10-11-00262-CR, 2013 Tex. App. LEXIS 5200 at * 2-3 (Tex. App.—
    Waco April 25, 2013, pet. ref'd) (mem. op.) (citing Manley v. State, 
    23 S.W.3d 172
    , 173-74
    (Tex. App.—Waco 2000, pet. ref'd).
    Relevant Facts
    On the day of trial, just prior to the start of voir dire, Thompson made an oral
    motion to represent himself and asked for time to prepare a defense.                 The State
    responded by saying that it was up to the trial court, but that "it's a bad idea."
    The trial court then stated to Thompson:
    Well, I will allow you to represent yourself, sir. But I want you to
    understand I'm not giving you a continuance. This case is set for trial
    today, it's been set for trial today.
    I believe that it is a very bad idea for you to represent yourself, but you do
    have that right, and if you chose to do that, we are going to go forward
    today, sir.
    Thompson's trial counsel then asked the trial court to allow him to withdraw,
    which the trial court ultimately allowed. Initially the trial court was going to have
    Thompson's trial counsel to act as standby counsel, but Thompson did not want him to
    continue in that capacity and the trial counsel stated that he felt that he could not
    participate in that capacity.     Thompson's trial counsel offered to remain in the
    courtroom to follow the proceedings and to be prepared in case Thompson changed his
    Thompson v. State                                                                       Page 3
    mind at some point during the trial; however, the trial court did not allow this.
    Thompson stated that he felt that given additional time to research he would be able to
    represent himself at the trial because he felt that his trial counsel was inadequate. The
    trial court then granted the motion for self-representation but denied Thompson's
    motion for continuance.
    A break was taken for the purpose of having Thompson execute a written waiver
    of the right to counsel and then the following exchange took place between the trial
    court and Thompson:
    TRIAL COURT:         Sir, you've advised the Court that you want to waive
    your right to counsel, and you're electing to proceed pro se. I'm going to
    read this Motion for you – or this waiver.
    I've been advised, this 12th day of November, 2013, by the Court of my
    right to representation by counsel in the case pending against me. I have
    further been advised that if I am unable to afford counsel, one will be
    appointed for me free of charge, and I have been admonished by the
    Court about the dangers and disadvantages of representing myself and of
    the obligations involved.
    And Mr. Thompson, I – I did advise you that you're going to be under the
    same Rules and – and guidelines as an attorney; do you understand that,
    sir?
    THOMPSON:           Ma'am, I understand that.
    TRIAL COURT:        Okay.
    THOMPSON:           All I ask is for time to prepare for this trial.
    TRIAL COURT:        And – and I've denied that, sir. Understanding my
    right to have counsel –
    THOMPSON:           Well, if you've denied it –
    Thompson v. State                                                                   Page 4
    TRIAL COURT:          – appointed – sir, I am talking.
    Understanding my right to have counsel appointed for free of charge, if I
    am not financially able to employ counsel and of the dangers and
    disadvantages of representing myself, I wish to waive that right and
    request the Court to proceed with my case without an attorney being
    appointed for me. I hereby waive my right to counsel and elect to
    represent myself.
    Is that what you wish to do, sir?
    THOMPSON:             Yes. But I also wish – I – I also wish to have a fair trial
    – and a chance to have a fair trial instead of being kicked to the side and
    made to – I would like to take the time to represent myself. I know I can
    do it. I – I did before.
    TRIAL COURT:          And I –
    THOMPSON:             All I'm asking is give me time to prepare myself for
    the trial.
    TRIAL COURT:          I need you to sign that, sir, if that's what you wish to
    do.
    And I will get you a copy of this in just a second, sir. And you as well
    [trial counsel].
    And at this time, Mr. Thompson has signed the waiver. [Trial counsel] are
    released from the case. And at this time, that will conclude this hearing.
    Analysis
    The record demonstrates that Thompson was aware that he would have to
    follow the same rules as an attorney and that representing himself was "a very bad
    idea," however, that is where the admonishments regarding the dangers and
    disadvantages of representing himself ended. The record does not evidence that the
    Thompson v. State                                                                          Page 5
    trial court made any attempt to explain why it was a bad idea for Thompson to
    represent himself. Further, there is nothing in the record to show that the trial court
    ensured that Thompson was made aware of any specific difficulties he might encounter
    in representing himself beyond a general recognition that he would have to follow the
    rules that attorneys are bound to follow. There is nothing in the record to show that
    Thompson had been provided with an opportunity to review or have access to
    discovery, and it appears from an exchange at the beginning of voir dire that he did not
    have that opportunity.
    While Faretta does not mandate an inquiry concerning the defendant's age,
    education, background or previous mental health history in every instance where an
    accused expresses a desire to represent himself, Martin v. State, 
    630 S.W.2d 952
    , 954
    (Tex. Crim. App. 1982), the record must contain proper admonishments concerning pro
    se representation and any necessary inquiries of the defendant so that the trial court
    may make "an assessment of his knowing exercise of the right to defend himself."
    
    Faretta, 422 U.S. at 836
    ; see also Blankenship v. State, 
    673 S.W.2d 578
    , 580 (Tex. Crim. App.
    1984).
    Because we are required to indulge every reasonable presumption against the
    validity of a waiver to the right to counsel, and because the record does not
    demonstrate that the trial court adequately advised Thompson of the dangers and
    disadvantages of self-representation, we find that the record is inadequate to establish
    Thompson v. State                                                                      Page 6
    that Thompson's waiver of right to counsel was knowingly and intelligently made.
    Because of this, Thompson's waiver was invalid.
    Harm Analysis
    The complete denial of the right to trial counsel is a structural defect for which
    prejudice is presumed. Williams v. State, 
    252 S.W.3d 353
    , 357 (Tex. Crim. App. 2008)
    (citing 
    Gideon, 372 U.S. at 339-47
    ). The error is therefore not subject to a harm analysis
    but requires reversal. 
    Id. at 357.
    We sustain Thompson's second issue. Since this error
    requires that we reverse and remand for a new trial, it is not necessary to address
    Thompson's first issue regarding the trial court's denial of ten days to prepare for trial.
    Conclusion
    Because we find that Thompson's waiver of right to counsel was invalid, we
    reverse the judgment of conviction and remand this proceeding to the trial court for a
    new trial.
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Reversed and remanded
    Opinion delivered and filed October 23, 2014
    Do not publish
    [CR25]
    Thompson v. State                                                                      Page 7