Tony L. Jones v. State

                                                NO. 12-07-00206-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TONY L. JONES,      §                      APPEAL FROM THE 241ST

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Tony L. Jones appeals his conviction for possession of cocaine.  In one issue, he argues that the trial court should have more fully admonished him before it permitted him to represent himself. We affirm.

Background

            Appellant was arrested and indicted for possession of 0.08 grams of cocaine, a state jail felony.  Prior to trial, he told his court appointed attorney that he wished to plead guilty, but that he wanted a jury to assess punishment.  When the case was called for trial, Appellant complained that his attorney had not been sufficiently attentive and asked to represent himself.  Over what took at least six pages to transcribe, the trial court explained to Appellant that although it was his constitutional right to represent himself, it was a “horrible mistake,” and that appointed counsel was one of the best attorneys the court had seen in trial, either as a judge or as a trial lawyer. The trial court discussed the difficulties Appellant would face in conducting voir dire, in determining whether to testify, and in cross examining witnesses.  After discussing the matter with counsel, Appellant reaffirmed that he wished to represent himself.  The trial court then instructed Appellant that he had the right to represent himself, and asked him if, despite all the court had explained to him, he still wished to represent himself.  Appellant said he did.  The court again reiterated that the maximum punishment for the charged offense was two years in a state jail facility, that Appellant was a nonlawyer and was at a disadvantage representing himself, that he was making a “huge mistake,” and that the court “strongly advised” him not to represent himself.  Appellant persisted, and the trial court allowed him to represent himself, though it retained appointed counsel as “stand-by” counsel.        Appellant pleaded guilty, and the jury assessed punishment at two years of confinement and a fine of $10,000.  This appeal followed.

Waiver of Right to Counsel

            In one issue, Appellant argues that he did not receive the proper warnings pursuant to Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), before being permitted to represent himself.

Applicable Law

            The Sixth Amendment to the United States Constitution and Article I, 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.  Concomitant with the right to counsel is the right to waive counsel and to represent one’s self.  Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002) (citing Faretta, 422 U.S. at 807, 95 S. Ct. at 2527); see also Oliver v. State, 872 S.W.2d 713, 715–16 (Tex. Crim. App. 1994).  Before being permitted to represent himself, a defendant must  be made aware of the dangers and disadvantages of self representation and must “knowingly and intelligently” forgo the benefits of having counsel. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; Geeslin v. State, 600 S.W.2d 309, 313 (Tex. Crim. App. 1980); see also Hatten, 71 S.W.3d at 334 (Independent of Faretta, waiver of counsel must be “knowing, intelligent and voluntary.”).¹  A waiver will not be presumed or implied from a silent record.  See Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70 (1962).  Rather, the record must show that the defendant intelligently and understandingly elected to proceed without counsel.  Id.; Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992). 

Analysis

            Appellant argues that he was not advised of the pitfalls and problems associated with self representation. In his brief he writes:

The absence of any evidence that proper admonishments and warnings were given to [Appellant], combined with the complete absence in the record of any indication that the trial court took any action that could permit it to decide whether [Appellant] was intentionally and knowingly and voluntarily waiving his right to counsel and asserting his right to self-representation means that the trial court failed to meet the requirements set out by both the Supreme Court and the Texas Court of Criminal Appeals.

            But this is not so.  As we detailed in the background section of this opinion, and as Appellant set out in his statement of facts, the trial court spent a great deal of time discussing the matter with Appellant.  The court warned Appellant that he would be held to the same standard as a lawyer, that it was a mistake to represent himself, and that Appellant was ill equipped to make important decisions as to whether to testify or to cross examine witnesses.  To the extent Appellant’s argument can be understood to assert that some part of the required warnings were not given, he has not been specific enough for us to determine the scope of his argument.  To the extent Appellant argues that there were no warnings, this assertion is contrary to the record.

            Several courts have held that Faretta admonishments are not necessary where, as here, the court appoints standby counsel.  See, e.g., Walker v. State, 962 S.W.2d 124, 126-27 (Tex. App.–Houston [1st Dist.] 1997, pet. ref’d); Robertson v. State, 934 S.W.2d 861, 864–65 (Tex. App.–Houston [14th Dist.] 1996, no pet.); but see Grant v. State, No. 09-06-00172-CR, 2007 Tex. App. LEXIS 8444, at *9–10 (Tex. App.–Beaumont Oct. 24, 2007, no pet.) (mem. op., not designated for publication).  We need not reach the question of whether the presence of standby counsel obviates the need for admonishments because the trial court carefully and patiently explained to Appellant the decision he was making.  As the Supreme Court has recognized, our system of justice does not require a citizen to accept counsel he does not want, and the right to self representation is at least as important as the right to counsel.  See Faretta, 422 U.S. at 820, 95 S. Ct. 2533–34 (“To thrust counsel upon the accused, against his considered wish, thus violates the logic of the [Sixth] Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.”). 

            The trial court gave sufficient admonishments for it to determine that Appellant’s waiver of counsel was freely and voluntarily made with an understanding of the dangers inherent in that decision.  The trial court did not err when it allowed Appellant to exercise his right to represent himself.  We overrule Appellant’s sole issue.

Disposition

            Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered March 26, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ A statute in effect at the time of the trial required that the waiver of counsel be in writing.  See Act of June 19, 1987, 70th Leg. R.S., ch. 979, § 1, 1987 Tex. Gen. Laws 3321 (amended 2001, 2007) (current version at Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2007)).  Appellant does not argue that the statute was violated.