Johnson v. State

614 S.W.2d 116, 1981 Tex. Crim. App. LEXIS 954

• Court: Court of Criminal Appeals of Texas
• Decided: April 8, 1981
• Docket: 64574
• Status: Published

Opinions

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for the offense of unlawful possession of intoxicating liquors in a dry county. The punishment imposed was payment of a $500 fine and confinement in county jail for thirty days.

The appellant contends that the trial court erred in permitting the appellant to represent himself at trial without an adequate explanation of the disadvantages and dangers of self-representation.

On November 29,1979, the appellant was convicted after entering a plea of guilty before the trial court. There was no court reporter present at the trial but a tape recording of a portion of the proceeding was made and admitted in evidence during a hearing on appellant’s Motion for New Trial. Appellant’s motion was overruled on December 20, 1979.

Within the record appears a magistrate’s certificate dated and filed on October 8, 1979 in which the magistrate states in a form, as recited:

“... I informed [the appellant] of the violation of which he was being accused and of any criminal charges which had been filed against him; of his right to have a lawyer; of his right to request a lawyer be appointed for him if he was not able to obtain one and that he would be allowed a reasonable time and opportunity to talk to a lawyer.”

The appellant, also in a form waiver, waived his right to counsel on the day of his trial. The waiver, in part, states the following:

“... [The appellant] ... after being informed by the Court of his right to have an attorney appointed to represent him if he is indigent, informs the Court that he wishes to exercise his Constitutional right to proceed to trial without the benefit of counsel and states that he wishes to exercise his Constitutional right to make his own defense. [The appellant] states that he has been informed by the Court and fully understands the dangers and disadvantages of proceeding to trial without the assistance of counsel. [The appellant] further states to the Court that he understands the nature of the charges against him and is fully prepared to enter a plea... [The appellant] prays the Court not to force him to hire an attorney appointed by the Court, but to permit him to represent himself Pro Se.”

The transcript of the record made of appellant’s trial did not include a reading of the waiver or any explanation of appellant’s rights prior to his waiver. The trial court took “judicial notice” that the waiver was read to and explained to the appellant before the recording was started. The trial court in its own bill of exception stated that after appellant’s rights had been explained to the appellant, he waived the presence of an attorney. The trial court also in the bill of exception and during the course of the hearing admitted that the range of punishment was not explained to appellant during the trial. The trial court at the hearing on the Motion for New Trial took judicial notice that the penalty for this offense had been explained to the appellant numerous previous times at previous trials.

During the hearing on the Motion for New Trial, the appellant testified that he was seventy-six years old, that he had a fifth grade education and that he had problems with his vision so that he cannot read very well. The appellant stated he had been arrested and convicted of this offense several times. Each time he was arraigned he would plead not guilty. He would then at trial plead guilty, having used the time between arraignment and trial to raise money to pay the fine. The appellant stated that he was always fined and that he did not know that he could receive a jail sentence for this offense. He added that he would not have pled guilty if he had known that. In addition, he testified that he was indigent and did not know that counsel would be provided if he could not afford to hire an attorney. He thought he would have to hire his own attorney.

The appellant argues that he did not make a valid waiver of his right to assistance of counsel and that the trial court erred in permitting the appellant to represent himself at trial. The Supreme Court of the United States in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that an accused may waive his right to assistance of counsel and assert the option of representing himself at trial. However, in order to accomplish this, the accused must make a knowing, intelligent and voluntary waiver of his right to assistance of counsel after being informed of the dangers and disadvantages of self-representation. Campbell v. State, 606 S.W.2d 862 (Tex.Cr.App.1980); Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.1980); Renfro v. State, 586 S.W.2d 496 (Tex.Cr.App.1979). We stated in Geeslin that informing the accused of the dangers and disadvantages is a distinct requirement. We stated further that:

“. .. [T]he trial court is ... obligated to insure that the defendant waiving his right to counsel is fully aware of the dangers and disadvantages of self-representation. As stated in Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), ‘The trial court should ... admonish an accused who desires to represent himself regarding the wisdom and the practical consequences of that [desire].’ The facts demonstrating the defendant’s awareness must affirmatively appear in the record. Webb v. State, supra. The defendant should be made aware of the general nature of the offense he is charged with and the possible penalties that may be imposed. Goodman v. State [591 S.W.2d 498], supra; cf. Maynard v. Meachum, 545 F.2d 273 (1st Cir. 1976). The defendant should be made aware that there are technical rules of evidence and procedure that he will be obligated to comply with and that he will not be granted any special consideration because of his lack of formal training in law. In short, the defendant must be aware that ‘he will be on his own in a complex area.’ Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977).”

In the present case, the only indication whatsoever that appellant was aware of the consequences of self-representation appeared in a form which recited that appellant “fully understands the dangers and disadvantages” of self-representation. There is nothing other than that statement which affirmatively appears in the record which demonstrates the appellant’s awareness. It is apparent that the appellant was not warned of the dangers and disadvantages of self-representation. Cf. Lisney v. State, 574 S.W.2d 144 (Tex.Cr.App.1978). While we also have serious doubts as to the validity of the voluntariness and intelligence of appellant’s waiver of counsel, the failure to warn the appellant of the dangers and disadvantages of self-representation is sufficient to require reversal, Campbell v. State, supra.

The judgment is reversed and the cause remanded.

Before the Court en banc.