Lambrecht v. State

681 S.W.2d 614, 1984 Tex. Crim. App. LEXIS 819

• Court: Court of Criminal Appeals of Texas
• Decided: December 19, 1984
• Docket: 279-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

In an unpublished opinion, the Waco Court of Appeals affirmed appellant’s misdemeanor conviction for criminal trespass in which the county court at law had assessed a $100.00 fine and 60 days in jail, probated for 180 days. Citing Article 40.-09(9), V.A.C.C.P., the court of appeals observed that no brief had been filed on appellant’s behalf and the record contained neither assertion nor showing of indigence.

In an untimely motion for rehearing, counsel, apparently retained by appellant, for the first time asserted “appellant was unrepresented at trial and on appeal [and] ... has never knowingly and intelligently and voluntarily waived his right to counsel.” Counsel did not allege appellant was or had been indigent. The court of appeals denied this motion for rehearing.

In a petition for discretionary review to this Court, counsel for appellant averred he had been “hired by appellant” and presented a single ground for review:

“The Court of Appeals erred in holding that appellant waived his right to counsel and that there was therefore no fundamental error which decision on an important question of State and Federal law is in conflict with the applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States.”

In appellant’s brief filed in this Court, counsel argues the trial court’s failure to admonish appellant of the “dangers and disadvantages of self-representation” alluded to in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), constitutes a per se establishment of appellant’s failure to comprehend his right to counsel and that no valid waiver thereof was made.¹

Our review of the statement of facts which is before us, however, reveals no assertion by appellant of his independent right to self-representation.² As the court below noted, the record in no way indicates appellant was indigent at the time of trial and we observe it in fact seems to suggest otherwise. Finally, the record reveals the trial judge nevertheless appointed counsel to represent appellant, but appellant instructed him not to cross-examine the State’s witnesses or voice objections.

Further, it appears that appellant’s failure timely to present to the court of appeals the claim he now makes was entirely due to decisions made by him alone. The Rules of Post Trial and Appellate Procedure in Criminal Cases governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals. See Noel v. State (Tex.Cr.App., No. 827-83, delivered March 14, 1984).³

Under the circumstances presented, the court of appeals correctly resolved appellant’s appeal and the judgment of that court is therefore affirmed.⁴

ONION, P.J., and CAMPBELL, J., concur in result.

1 . But see Martin v. State, 630 S.W.2d 952 (Tex.Cr.App.1982) in which the Court acknowledged the Supreme Court’s reasoning that the independent right to self-representation does not arise from the accused’s power to waive assistance of counsel and observed that prior decisions of this Court which had iterated exacting "requisites" for establishing a knowing waiver of counsel, [e.g., Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Goodman v. State, 591 S.W.2d 498 (Tex.Cr.App.1980); and Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.1980) ], had read Faretta incorrectly. We stated:

"The Faretta opinion simply cannot reasonably be read to require that a trial judge spread upon the record all such information and data about an accused that might conceivably impugn his decision to represent himself. ...”

630 S.W.2d at 954, n. 5; see also Blankenship v. State, 673 S.W.2d 578, 586, n. 1 (Tex.Cr.App.1984) (Opinion concurring).

Thus, the validity of the premise of appellant’s argument — that the trial court’s failure to admonish him in accordance with Geeslin, supra, violates Faretta-is doubtful.

2 . An independent right, we repeat, which does not arise from the power to waive the assistance of counsel. See n. 1, ante. Thus, it is not at all clear that the right to self-representation is automatically invoked by an accused’s expression of his desire to waive assistance of a lawyer.

3 . Citizens are, however, unlike the State, entitled to protections of due process and due course of law. See n. 4, post.

4 . Our action today is without prejudice to appellant to pursue postconviction remedies pursuant to Chapter 11 of the Code of Criminal Procedure, wherein he may fully develop his indigen-cy at the time of trial, his assertion of the right to self-representation and any other facts material to determination of his claim which are not established by the record before us, if such facts can be developed.