Johnson v. State

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.

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.

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 Far-etta 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.

. Johnson v. State, 653 S.W.2d 324 (Tex.App.—San Antonio 1983).

. Further, appellants urge us to consider, as unassigned error, whether they were denied a fair trial because counsel was assigned to assist them. The court of appeals was not called upon to decide this matter, however, and neither, therefore, shall we. Lambrecht v. State, 681 S.W.2d 614 (Tex.Cr.App.1984).