Johnson v. State

Page 277

760 S.W.2d 277

Thomas Carl JOHNSON & Robert Darnell Stapp, Appellants, v. The STATE of Texas, Appellee.

No. 499-83.

Court of Criminal Appeals of Texas En Banc.

Nov. 16, 1988.

George A. Preston, Dallas, for appellant.

Ronald L. Sutton, Dist. Atty., Junction, Robert Huttash, State's Atty., and Cathleen R. Riedel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANTS' PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Before us on appellants' petition for discretionary review are convictions for burglary, affirmed by the San Antonio Court of Appeals in a published opinion. ¹

We granted appellants' petition for discretionary review to determine whether the court of appeals erred in finding appellants knowingly and intelligently waived their right to counsel while asserting their right to represent themselves. ²

The State argues Maddox v. State, 613 S.W.2d 275 (Tex.Cr.App.1981) controls because the representation was of a hybrid nature and therefore there is no question of waiver of counsel. Maddox relied entirely on Phillips v. State, 604 S.W.2d 904 (Tex.Cr.App.1980) wherein the Court stated "appellant partially represented himself in this case, [but] he was also fully represented by counsel. Thus, no question of waiver of counsel is involved." This reasoning does not apply to the instant case, because appellants were not fully represented by counsel. Rather, appellants put on their entire defense, while their counsel, assigned to assist them, conducted the balance of the trial. On this basis, appellants urge waiver of counsel is not mooted because they in fact proceeded pro se.

Because appellants played a crucial role in their trial and the trial court acknowledged they were proceeding pro se, we agree with appellants. We disagree, however, with the manner in which the State and appellants rest their arguments on the issue of waiver of counsel. When a defendant asserts his pro se rights, analysis must center not on a traditional waiver of counsel analysis, but on whether the defendant is aware of the dangers and disadvantages of selfrepresentation. Thus the focus of a trial court's admonishments of a defendant wishing to proceed pro se is on the knowing and intelligent assertion of the right to selfrepresentation. Such is the focus because the right to selfrepresentation does not arise from the accused's power to waive the assistance of counsel but independently from the Sixth Amendment grant to the accused personally the right to defend. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Accordingly, in Martin v. State, 630 S.W.2d 952 (Tex.Cr.App.1982) we held Faretta does not mandate an "inquiry concerning appellant's age, education, background, or previous mental health history" in every instance where an accused expresses a desire to represent himself, for the record may otherwise be sufficient for the Court to make " 'an assessment of his knowing exercise of the right to defend himself.' " Faretta, 422 U.S. at 836, 95 S.Ct. at 2541, cited in Martin, 630 S.W.2d at 954.

To make this assessment, we require no litany, "no formulaic questioning[,]" Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Cr.App.1984), but defendants must be "aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " Adams v. United States, ex rel McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), cited in Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. Generally, the record must be sufficient for the reviewing court to make an assessment that appellant knowingly exercised his right to defend himself. Admonishments of defendants who wish to proceed pro se should include an effort to ensure that the defendant is aware of the practical disadvantages of representing himself. The defendant should be aware that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights. Martin, supra; Burton v. State, 634 S.W.2d 692 (Tex.Cr.App.1982). As Faretta, supra, held, his eyes should be open to the fact that, while it is undoubtedly his right, he is about to embark on a risky course.

In the case at bar, the court explained the range of punishment to appellants, with the added admonishment to Johnson that he was subject to a life sentence. The court also pointed out, albeit a bit indirectly, that there are "certain rights .... a non-lawyer would be unable to accomplish." The judge underscored the risks by insisting counsel be present to act in an advisory capacity. Appellants acquiesced to this arrangement. Further, the court asked Appellant Stapp if he felt competent to conduct crossexamination of the witnesses. After these admonishments, the court told appellants that no evidence would be received until the following day, hence they would have time to contact additional counsel if they so wished. On the following day, both appellants reiterated their desire to proceed without counsel. Viewing the record in its entirety, we find appellants knowingly exercised their right to defend themselves, and, in so doing, relinquished benefits of representation by counsel.

The judgments are affirmed.

MILLER, J., concurs in the result.

ONION, Presiding Judge, concurring in part and dissenting in part.

Along came Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), establishing the independent constitutional right to self-representation. Justice Blackmun in his dissent warned us of the procedural difficulties and of the detour signs on the road ahead. He did not, however, tell us there would be so many. The construction of Faretta was fairly smooth and uniform until the second phase of construction began in Texas. Although in the early days construction in Texas was like that in most other jurisdictions, the introduction of a new construction method, a new interpretation [Martin v. State, 630 S.W.2d 952 (Tex.Cr.App.1982) ], has kept the dust raised resulting on occasion in the sub silentio return to the former method of construction [see, e.g., Funderburg v. State, 717 S.W.2d 637, 641-642 (Tex.Cr.App.1986) ]. With the use of Martin the majority of this Court's engineers has thus provided a bumpy, dusty road with annoying vibrations for the bench and bar to follow to reach Faretta. The road signs erected during construction are sending mixed signals to all concerned. And today the majority again utilizes Martin.

Although I reach the same result in the instant case as does the majority, I reach it for different reasons. However, I would overrule Martin and its progeny, and return to the generally uniform interpretation of Faretta (regarding the waiver of the right to counsel) which prevails throughout the nation.

Appellants Johnson and Stapp were separately indicted for the same burglary offense. They were jointly tried and convicted by a jury. The jury assessed Stapp's punishment at 12 years' imprisonment. The jury also found that Johnson had been previously convicted of two prior non-capital felonies as alleged. His punishment then was assessed at life imprisonment by the court in accordance with the law. See V.T.C.A., Penal Code, § 12.42(d) (1974), in effect at the time of the joint trial.

On appeal both appellants jointly urged in separate briefs, inter alia, that the "record fails to reflect that the trial court adequately questioned and warned the defendant about his Sixth Amendment right to an attorney," citing Faretta.

The Court of Appeals rejected this and other points of error on appeal and affirmed the conviction. Johnson, et al. v. State, 653 S.W.2d 324 (Tex.App.-San Antonio 1983).

In their joint petition for discretionary review the appellant urged in their first ground of review that "The Court of Appeals erred in finding an effective waiver of counsel for appellants Johnson and Stapp." We granted the petition to determine whether the Court of Appeals erred in finding that the appellants knowingly and intelligently waived their right to counsel while asserting their right to represent themselves.

It is appellants' contention that the trial court inadequately questioned and warned the appellants about their Sixth Amendment right to an attorney. They rely upon Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which held that the Sixth Amendment as made applicable to the states by the Fourteenth Amendment guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so.

In Faretta, supra, the Court wrote:

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. at 464-465, 58 S.Ct. [1019] at 1023 [82 L.Ed. 1461 (1938) ]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 [ (1948) ] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with his eyes open.' Adams v. United States ex rel. McCann, 317 U.S. at 279, 63 S.Ct. at 242." ¹

In the wake of Faretta it has been the new unanimous view that the assertion by an accused of his right to self-representation is dependent, in part, upon a waiver of his right to counsel. In Note: Criminal Procedure--The Right To...