Privett v. State

635 S.W.2d 746

• Court: Court of Appeals of Texas
• Decided: June 30, 1982
• Docket: 01-81-0015-CR
• Status: Published

Opinions

STILLEY, Justice.

The appellant was convicted of aggravated robbery and after a finding of “True” by the jury to the two enhancement paragraphs alleged in the indictment, an automatic life sentence was assessed. Appellant, acting pro se, conducted his defense.

The appellant in his first ground of error complains of the trial court permitting appellant to represent himself without a valid waiver of counsel.

Due to the nature of appellant’s contention, we deem it unnecessary to set forth with particularity the facts and circumstances surrounding the offense with which he was charged. Suffice it to say, that after hearing the evidence presented by the State, the jury found the appellant guilty of robbing Elizabeth Reed at gunpoint while she was working at a grocery store in Houston, Texas, on October 26,1976.

A pre-trial motion was filed on December 27, 1978, by the appellant entitled “Notice that he will not accept George Schilter as attorney and request for competent counsel.” The appellant had been represented at a previous trial of this cause by Mr. George Schilter, a court-appointed attorney. At a pretrial hearing on February 5, 1979, the appellant expressed dissatisfaction with the services of Mr. Schilter. The following colloquy between the court and the appellant occurred at the hearing:

The Court: And this is the first time that you brought it to this court’s attention that you wished to dismiss your attorney; is that correct?

The Defendant: Your Honor, in February of 1977, two years ago, this month, I raised the issue at that time, and you told me I would either go to trial with him or by myself, and that January the 31st, 1978, on my objections to the record, I requested that be placed in the appellate record and you denied it. This has been brought up previously. Mr. Schilter: And it was denied by the court Your Honor.

The court proceeded to question appellant and develop facts concerning his background. The record reflects that appellant had obtained the equivalent of 90 hours of college work while previously at the Department of Corrections, and had the opportunity to review law books while awaiting trial. The court further explained to the appellant his right to counsel and his right to have counsel stand by in the event he represented himself. The defendant declined to have Mr. Schilter as stand-by counsel, but requested the assistance of a fellow inmate, which was denied by the court. The court did appoint Mr. Manuel Leal as stand-by counsel after voir dire of the jury was completed. However, the delayed appointment of stand-by counsel would not cure any error in the initial acceptance of the waiver of counsel.

On the date of trial, April 2,1979, further colloquy on the subject of counsel transpired:

The Court: The court has made it known to you and has appointed counsel to represent you but has assured you that it would be at no cost to you, and you have made it known to this Court that it’s your desire that you represent yourself; it that correct?

Mr. Privett: Yes, sir. Because I did not want that counsel. That is that specific counsel.

The Court: That specific counsel was who?

Mr. Privett: George L. Schilter.

The Court: Yes. And the Court has made known to you that Mr. Schilter has practiced law for several years; it that correct?

Mr. Privett: Yes, sir.

The Court: And made known to you that he is likewise a certified specialist in the practice of criminal law; is that right? Mr. Privett: I wasn’t aware of that till now.

The Court: Well, I am telling you now that he is. Do you understand that? Mr. Privett: Yes, sir.

The Court: And knowing that there are a number of disadvantages to a layperson attempting to represent himself, however, the law provides that the Court has to abide by your wishes. Do I understand that it is your desire and your wish that you represent yourself?

Mr. Privett: Yes, sir. Rather than— The Court: Rather than have Mr. Schil-ter?

Mr. Privett: Yes, sir.

At the State’s urging the court again developed information for the record concerning the defendant’s background. The trial judge then made the following statement for the record:

The Court: All right. It appears to the Court that the Defendant has a strong feeling that he does not want Mr. Schil-ter, and he is intelligent, and it's his desire to represent himself if we can’t have some other counsel, (emphasis added) and it’s the Court’s responsibility to at least conduct a trial in some semblance of order, and to allow a defendant to have a choice of counsel would make it practically impossible for any court to proceed in any systematic way.

So with your insistence that you want to represent yourself, knowing full well, realizing all of the many disadvantages and dangers and pitfalls that attaches to a layperson attempting to represent himself, this Court is going to allow you to proceed to represent yourself.

Mr. Privett: Thank you, Your Honor.

It is well settled that the fourteenth amendment to the United States Constitution extends to the States as a matter of due process the sixth amendment provision that in all criminal prosecutions the accused shall enjoy the right to the assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), and cases there cited. Article 1, section 10 of the Texas Constitution also provides for the right to counsel in a criminal prosecution.

This right to counsel may be waived. The court in Lisney v. State, 574 S.W.2d 144 (Tex.Cr.App.1978) and Renfro v. State, 586 S.W.2d 496 (Tex.Cr.App.1979), stated succinctly the applicable rules regarding waiver of counsel:

On the issue of waiver of counsel, this court stated in Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.1978): “However, an accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1925); Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Thomas v. State, [550 S.W.2d 64 (Tex.Cr.App.1977)]. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself. Thomas v. State, supra; Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976). In Faretta v. California, supra, the Supreme Court held that the record should reflect that the defendant waived his right to counsel only after being made aware of the advantages and disadvantages of self-representation so that it is clear that he ‘knows what he is doing and his choice is made with eyes open.’ 422 U.S. at 835, 95 S.Ct. at 2541.”

In Thomas v. State, supra, the Court of Criminal Appeals held that a request for other counsel is not a waiver of the right to counsel. The court stated that where the accused is not satisfied with appointed counsel and cannot show adequate cause for the appointment of different counsel, in the absence of a voluntary and intelligent waiver of counsel by the appellant, he should be required by the court to accept appointed counsel and not be required to represent himself merely on the basis of his dissatisfaction with appointed counsel. The defendant does not have the right to appointed counsel of his choice, but must accept counsel assigned by the court, unless he effectively waives right to counsel in order to represent himself, Faretta v. California, supra, or can show adequate reason for appointment of different counsel. See, Gonzales v. State, Tex.Cr.App., 532 S.W.2d 343.

Another case similar to the present case was Renfro v. State, 586 S.W.2d 496, in which the court stated:

“Although the appellant, upon the court’s inquiry, stated that he wished to represent himself, it is abundantly clear from the record as previously set forth that the appellant’s decision to do so was based solely on the court’s refusal to appoint different counsel and not because he wished to forego his right of representation.”

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. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977).

As in Renfro, Thomas, and Robles v. State, 577 S.W.2d 699 (Tex.Cr.App.1979), the trial court’s response to the appellant’s dissatisfaction with his counsel was to give the appellant the choice of (1) continuing with the same counsel, or (2) representing himself. This response was, in effect, a Hobson’s choice, designed to force the appellant to continue with the same counsel or else represent himself, the latter alternative being the one elected by the appellant.

Furthermore, not only does the record in the present case fail to demonstrate a voluntary and unconditional waiver of the right to counsel, it also fails to show that the appellant’s decision to represent himself was made after being made aware of the disadvantages of self-representation.

The State argues that the court “substantially complied” with the warnings of disadvantages involved; however, a heavy burden rests with the prosecution to demonstrate a knowing waiver of the right to counsel. Ex Parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970), Robles v. State, supra, Geeslin v. State, Tex.Cr.App., 600 S.W.2d 309.

The trial court did warn the appellant that the law was “intricate”, that “There are many dangers because of the technicalities involved”, and “you are treading on dangerous ground”. The use of vague, general admonishments, without reference to specific disadvantages and dangers, add little to the appellant’s decision-making process. The defendant should be made aware that there are technical rules of evidence and procedures 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. Campbell v. State, 606 S.W.2d 862 (Tex.Cr.App.1980); Trevino v. State, supra. As stated in Webb, “The trial court should admonish an accused who desires to represent himself regarding the wisdom and the practical consequences of that [desire].” Webb v. State, 533 S.W.2d at 785. The admonishment of the trial judge in Geeslin v. State, supra, and also in Martin v. State No. 59,074 (Tex.Cr.App. Nov. 25, 1981) (not yet reported) was more specific than of the court in the present case, but was nevertheless held insufficient on appeal. The trial judge in those cases informed the defendant he would be expected, as would a lawyer, to follow the rules of evidence and procedure.

In the present case, the trial court gave the defendant no direct admonishment that he would be bound by the rules of evidence and procedure, and that no special consideration would be given because of his lack of formal training in the law. Also, the defendant was not warned of any of the practical consequences of waiver of counsel. See Faretta, 422 U.S. at 833, n. 43, 95 S.Ct. at 2540, n. 43, viz:

(1) he may forego any error possibly existing in the indictment or other instrument charging him with an offense;

(2) his lack of evidentiary knowledge and experience will necessarily lead to the waiver of errors in the admission and exclusion of evidence;

(3) he thus may be convicted upon incompetent, irrelevant or otherwise inadmissible evidence;

(4) he faces the danger of conviction, though he be not guilty, because he does not know how to establish his innocence;

(5) in all but an extraordinary small number of cases, an accused who undertakes self representation, will lose whatever defense he may have. Faretta, 422 U.S. at 838, 95 S.Ct. at 2543;

(6) he specifically foregoes the right to the effective assistance of counsel, and may not be heard later to complain on this ground. Faretta, 422 U.S. at 834, n. 46, 95 S.Ct. at 2541, n. 46;

(7) in the sense that assistance of counsel is essential to a fair trial and due process of law, he likewise relinquishes those guarantees. Faretta, 422 U.S. 833, n. 43, 95 S.Ct. at 2540, n. 43; and

(8) he loses other benefits such as selection of an impartial jury, a fair final argument by the State, errorless instructions to the jury including any defensive issues.

As in Geeslin v. State, supra, there was evidence showing that appellant had previous experience with criminal proceedings, but there was no showing that appellant had ever before waived his right to representation as in Hawkins v. State, 613 S.W.2d 720, 728 (Tex.Cr.App.1981). Nor was there a finding that his prior experience was sufficient to show capacity for waiver. Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.1978).

The appellant’s first ground of error must be sustained.

We have reviewed the grounds of error involving speedy trial and jeopardy contained in the appellant’s pro se brief and find no merit in the allegations affecting a re-trial.

The judgment of the trial court is reversed and the cause is remanded.