HUGGINS, NOEL CHRISTOPHER v. the State of Texas ( 2023 )

In the Court of Criminal
Appeals of Texas
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No. PD-0590-21
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NOEL CHRISTOPHER HUGGINS, Appellant
v.
THE STATE OF TEXAS
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On Appellant’s Petition for Discretionary Review
From the Tenth Court of Appeals
Hill County
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YEARY, J., filed a dissenting opinion.
We granted discretionary review in this case to address
essentially two questions: 1) whether the trial court should have
admonished Appellant of the dangers and disadvantages of self-
representation on the two occasions in which it accepted his waivers of
the right to counsel, and 2) whether the trial court erred in rejecting his
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attempt to withdraw his waiver of counsel at the outset of his jury trial
(which quickly turned into a guilty-plea hearing before the court).
Appellant contends that he was authorized to withdraw his waiver of
the right to counsel under Article 1.051(h) of the Texas Code of Criminal
Procedure. 1 I agree with the Court’s disposition of the first issue, for
different reasons than the Court gives. But I disagree with the Court’s
disposition of the second issue, and I therefore respectfully dissent.
I. THE RELEVANCE OF FARETTA ADMONISHMENTS
On the appointed date of trial, with a jury venire waiting in the
hallway, and without counsel, Appellant informed the trial court that he
wished to change his plea to guilty. During pretrial proceedings,
Appellant had already executed two written waivers of his right to
counsel. I am inclined to agree with the Court that both waivers were
voluntarily and knowingly rendered. But shortly before voir dire was to
begin, Appellant informed the trial court that he wished to change his
plea, and then he also informed the trial court that he wished to have
the assistance of counsel after all. The trial court refused to allow him
to withdraw his earlier waiver of counsel.
I do not agree with the Court that it was unnecessary for the trial
court to admonish Appellant of the dangers and disadvantages of self-
representation before Appellant’s earlier waivers could be regarded as
valid—at least not for the reason the Court articulates. The Court seems
to say that admonishments were not necessary because Appellant was
1 The bulk of the Court’s opinion today is devoted to setting out the facts
and procedural posture of this case. I will not reiterate that extensive
background information here.
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already aware of those dangers and disadvantages by the time of his
guilty plea—regardless of whether the trial court had ever advised him
of them. Majority Opinion at 18. Assuming that a self-representation
admonishment would be required at all under these circumstances, 2
that requirement could not be satisfied by Appellant’s experience of
earlier pretrial events. 3 To whatever extent the stage and attending
circumstances of a given case suggest that an accused must be
admonished of the dangers and disadvantages of self-representation, see
Iowa v. Tovar, 541 U.S. 77, 92 (2004), 4 it is up to the trial court judge to
2 The court of appeals held that there was no admonishment
requirement because Appellant pled guilty, and such admonishments only
apply when guilt is contested. Huggins v. State, 627 S.W.3d 549, 552 (Tex.
App.—Waco 2021). Although we granted discretionary review at least in part
to address this aspect of the court of appeals’ reasoning, the Court avoids doing
so today—as, admittedly, do I. The difference is that my reasoning obviates the
court of appeals’ rationale, while I do not think the Court’s does.
3 In Geeslin v. State, 600 S.W.2d 309 (Tex. Crim. App. 1980), this Court
evaluated the trial court’s inquiry into the validity of the appellant’s waiver of
counsel. In finding the trial court’s inquiry to be lacking, the Court determined
that “the court failed to make any inquiry into the appellant’s age, experience,
background or education.” Id. at 314. The Court also observed: “[N]or was there
a finding that [the appellant’s] prior experience was sufficient to show a
capacity for waiver.” Id. But the Court then went on to independently inquire
whether the appellant “was made aware of the dangers and disadvantages of
self-representation.” Id. This suggests to me that the Court is mistaken today
to believe that an accused’s prior experience can serve to validate his waiver of
the right to counsel even though he has not also been adequately admonished
under Faretta. See Johnson v. State, 614 S.W.2d 116, 118 (Tex. Crim. App.
1981) (panel op. on orig. submission) (“We stated in Geeslin that informing the
accused of the dangers and disadvantages is a distinct requirement.”).
4 “[T]he information a defendant must have to waive counsel
intelligently will depend, in each case, upon the particular facts and
circumstances surrounding the case.” Tovar, 541 U.S. at 92 (internal quotation
marks and citations omitted).
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sufficiently admonish the accused in order to assure that the record
reflects that he makes his choice to represent himself “with eyes open.”
Faretta v. California, 422 U.S. 806, 835 (1975); see Collier v. State, 959
S.W.2d 621, 626 n.8 (Tex. Crim. App. 1997) (“The record must reflect
that the trial court thoroughly admonished the defendant.”).
Nevertheless, I too ultimately reject Appellant’s premise that
Faretta admonishments were required when the trial court ultimately
compelled him to represent himself against his will—at the guilty plea
proceeding and then the punishment hearing. By that time, Appellant
was no longer insisting that he be allowed to represent himself. In fact,
quite the opposite. He was trying to withdraw his earlier waiver of the
right to counsel and obtain legal representation. The right to self-
representation was no longer on the table; the trial court was requiring
Appellant to represent himself. It was forcing Appellant to proceed in
the absence of counsel, on the basis of his earlier waivers,
notwithstanding Appellant’s change of heart. Faretta is therefore
inapposite. 5
This case instead devolves into a question of Appellant’s right, if
any, to revoke his previous waiver and reassert his right to counsel. In
Texas, that question is controlled by Article 1.051(h). See Tovar, 541
U.S. at 94 (“We note, finally, that States are free to adopt, by statute,
5 All the harm that Appellant asserts he suffered because of the trial
court’s failure to let him withdraw the waiver of his right to counsel occurred
from the point of the guilty plea forward, including the punishment hearing.
Appellant’s Brief at 23−24. By that time, the jury venire had been dismissed,
and Appellant was no longer asserting his constitutional right to self-
representation.
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rule, or decision any guides to the acceptance of an uncounseled plea
they deem useful.”). In my view, the Court’s opinion engrafts a limitation
upon the scope of the statute that finds no basis in its text.
II. PROPER CONSTRUCTION OF ARTICLE 1.051(h)
Article 1.051(h) reads, in its entirety:
(h) A defendant may withdraw a waiver of the right to
counsel at any time but is not entitled to repeat a
proceeding previously held or waived solely on the grounds
of the subsequent appointment or retention of counsel. If
the defendant withdraws a waiver, the trial court, in its
discretion, may provide the appointed counsel 10 days to
prepare.
TEX. CODE CRIM. PROC. art. 1.051(h). “[A]t any time” would presumably
include before voir dire, or even before the entry of a guilty plea in front
of a trial judge while a jury venire is waiting in the hallway, as happened
here.
It is true that a defendant will not ordinarily be “entitled” to redo
any part of the proceedings that have already occurred, or that he
previously waived, while he was without counsel—the statutory
withdrawal of his waiver of counsel operates, in other words,
prospectively only. The defendant will therefore be stuck with the
results of his prior decision to proceed without counsel, without
recourse. But, by the literal terms of the statute, he “may” withdraw his
waiver, and therefore must be allowed to proceed prospectively with the
assistance counsel—from “any” point in “time” at which he chooses to
revoke his earlier waiver. The face of the statute identifies no other
condition or qualification, not even implicitly.
Moreover, as even the State Prosecuting Attorney (SPA)
HUGGINS – 6
recognizes in its brief to this Court, at least “[c]olloquially speaking, ‘at
any time’ is fairly understood to imply something [that] can take place
at one’s convenience, without limitation and regardless of the
circumstances.” State’s Brief on the Merits at 27−28 (emphasis added).
Without any other express language of limitation in the statute itself, I
fail to see why this understanding, however “colloquial” it may be, would
not carry the day: A defendant “may” withdraw his waiver of counsel “at
any time,” and therefore obtain prospective assistance of counsel from
that point on, without regard to the circumstances attending his
withdrawal. As far as I am concerned, if the Legislature meant for the
statute to operate otherwise, it could have said so expressly.
The Court says the opposite: “If it had meant to allow a defendant
to withdraw his waiver of counsel under any circumstances, the
Legislature would have said so.” Majority Opinion at 20. I am not sure
where this presumption comes from. 6 Perhaps the Court’s attempt to
justify it may be found in its claim that the “plain language” of the
statute “promotes the efficient administration of justice and prevents
delay, but Appellant’s interpretation would sometimes sacrifice these
goals for the sake of indulging a defendant’s vacillations.” Id. at 19. The
6 The Court also says: “The statute says, ‘at any time’ and not ‘under
any circumstances.’” Majority Opinion at 19. But neither does the statute say,
“at any time but only if the circumstances warrant.” In the absence of any
reference at all to the circumstances under which a defendant may withdraw
his waiver of counsel “at any time,” I cannot fathom why the default would be
to engraft judicially fashioned language of limitation upon what is otherwise
broad language, albeit as understood “colloquially.” It suggests to me the
elevation of the will of the Court in authoritativeness above the apparent will
of the Legislature. And that explains in plain terms my reluctance to go along
with it.
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only language from Article 1.051(h) that speaks to “the efficient
administration of justice” or the prevention of “delay,” however, is the
clause that bans retroactive operation of a withdrawal, preventing the
repeat of earlier, uncounseled proceedings. Other than this, the statute
does not speak to “the efficient administration of justice” or the
prevention of “delay”—at all, much less plainly.
The notion that an unfettered permission to withdraw a previous
waiver of the right to counsel should be avoided because of the potential
it may otherwise have to clog the gears of justice is just a judicial
invention. It comes from court pronouncements about the acceptable
tolerances of the constitutional right to counsel, 7 or from court
7 As the Court observes, Majority Opinion at 2−3, the court of appeals
in this case relied upon Medley v. State, 47 S.W.3d 17 (Tex. App.—Austin 2000),
to adopt a rule imposing a burden on a defendant attempting to withdraw his
waiver of his right to counsel to show that reinstating counsel would not 1)
disrupt court business, 2) cause unnecessary delay or inconvenience to
witnesses, or 3) prejudice the State. Huggins, 627 S.W.3d at 554−55; see also
Calamaco v. State, 462 S.W.3d 587, 592 (Tex. App.—Eastland 2015, pet. ref’d)
(adopting Medley). Medley, in turn, borrowed this burden from this Court’s
opinion in Marquez v. State, 921 S.W.2d 217 (Tex. Crim. App. 1996) (plurality
opinion). But Marquez involved a withdrawal of a waiver of the right to a jury
trial. Waiver of the right to jury trial is governed by Article 1.13 of the Code of
Criminal Procedure. TEX. CODE CRIM. PROC. art. 1.13. The statute at issue in
this case does not address the withdrawal of a waiver of the right to jury trial
at all. Thus, the Court improvises here in the absence of express statutory
guidance. But withdrawal of a waiver of the right to counsel is expressly
addressed in Article 1.051(h), and we have no call to improvise.
In its own analysis today, the Court does not follow the court of appeals’
lead by relying upon Medley. Instead, the Court cites two cases, Culverhouse
v. State, 755 S.W.2d 856 (Tex. Crim. App. 1988), and Webb v. State, 533 S.W.2d
780 (Tex. Crim. App. 1976), for the proposition that a defendant may not
manipulate his right to self-representation in such a way as to obstruct orderly
procedure and fair administration of justice. Majority Opinion at 20. Both cases
were tried before the effective date of Article 1.051(h), however, and neither
purports to construe its terms. See Acts 1987, 70th Leg., ch. 979, §§ 1, 5, pp.
HUGGINS – 8
construction of other statutes (not Article 1.051(h)) that contain
language expressly imposing circumstantial restrictions. 8 Majority
Opinion at 19−21. But, aside from Article 1.051(h)’s explicit ban on a
retroactive withdrawal of the waiver of counsel, nothing in its language
invites such judicial invention or intervention, either plainly or
implicitly.
Nor would it be inherently absurd for the Legislature to craft a
statute that is so solicitous of a constitutional right, as Article 1.051(h)
on its face seems to be. Beyond any delay or inefficiency that may be
inherent in allowing a defendant to retroactively withdraw a waiver of
counsel—which is expressly banned by Article 1.051(h)—the Legislature
may well have been unconcerned with the potential for judicial
inefficiency or delay. Indeed, for all we can tell from the language it
chose, the Legislature prized the right to counsel over every other
consideration. Our job as jurists is to implement the Legislature’s policy
choice, regardless of whether we agree with it; not to tinker with it
according to our own notions of courtroom efficiency.
Because the Court does not, I respectfully dissent.
FILED: September 6, 2023
PUBLISH
3322, 3324, eff. Sept. 1, 1987. Both cases purport to ground their holding on
constitutional principles, not statutory language.
8 The Court cites two statutes: TEX. CODE CRIM. PROC. art. 29.02, and
TEX. CODE CRIM. PROC. art. 45.058(e). Majority Opinion at 19−20. The former
statute contains an explicit circumstantial element: “at any time on a showing
of good cause[.]” Article 1.051(h) includes no “good cause” limitation nor any
other such element. The second statute explicitly prohibits a certain thing
“under any circumstances[.]” There is simply no comparable language
addressing any limitation based on “circumstances” in Article 1.051(h).