Opinion
No. 05-03-00268-CR
Opinion Filed March 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 4, Dallas County, Texas, Trial Court Cause No. MB01-64659-E. Affirmed.
OPINION
Chad Kendrick Majors was tried by the court on a charge of indecent exposure. The trial court found appellant guilty and assessed punishment at 180 days in jail, probated for twelve months, and a $500 fine. In two issues, appellant complains the trial court did not adequately admonish him of the dangers and disadvantages of self-representation and that appellant did not voluntarily waive his right to counsel. We conclude the trial court erred in not adequately assessing appellant's waiver of counsel. However, we further conclude the error was harmless and that the record reflects appellant voluntarily waived his right to counsel. Accordingly, we affirm the trial court's judgment. Appellant was charged by information with indecent exposure, a Class B misdemeanor. The offense was alleged to have occurred on November 28, 2001, and the information was filed on December 5, 2001. At some point, appellant either retained or was appointed counsel. The trial court's docket sheet contains a June 14, 2002 entry that appellant's attorney was released because appellant wanted to represent himself. On August 23, 2002, appellant completed and signed a document entitled "Exhibit to Consider Defendant's Request to Proceed Pro Se." The form notified appellant of the services an attorney would provide and warned appellant that if he proceeded pro se, he would be required to follow the same rules and procedures as an attorney. The form also said appellant would be given time to hire counsel and that counsel would be appointed if he was indigent. Appellant answered the questions on the form regarding self-representation as follows:
Years of school 10½, GED, Not Law School Have you ever participated in a trial? Yes Has anyone forced you to represent yourself? Yes Do you understand that you will be given time to hire an attorney? No Money Do you understand that you have a right to a Jury Trial? Yes Do you still wish to represent yourself? ?A bench trial was conducted on December 6, 2002. At the beginning of the trial, the judge reiterated that he previously had given appellant permission to represent himself. The judge asked appellant if he understood he had the right to counsel and that counsel would be appointed if appellant was indigent. Appellant replied, "Yes, sir." The judge then proceeded with the trial. At the conclusion of the trial, the judge found appellant guilty and assessed punishment at 180 days in jail, probated for twelve months, and a $500 fine. The Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution provide that a defendant in a criminal trial has the right to assistance of counsel. See Faretta v. California, 422 U.S. 806, 807 (1975); Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997); Fulbright v. State, 41 S.W.3d 228, 234 (Tex.App.-Fort Worth 2001, pet. ref'd). A defendant may waive the right to counsel and choose to represent himself at trial. See Faretta, 422 U.S. at 819-20; Collier, 959 S.W.2d at 625. However, the waiver of the right to counsel will not be lightly inferred, and courts will indulge every reasonable presumption against the validity of such a waiver. Geeslin v. State, 600 S.W.2d 309, 313 (Tex.Crim.App. [Panel Op.] 1980) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A defendant's waiver of counsel must be competently, intelligently, knowingly, and voluntarily made, with full understanding of the right to counsel, which is being abandoned, and the dangers and disadvantages of self-representation. See Faretta, 422 U.S. at 835; Collier, 959 S.W.2d at 625-26. No set formula for questioning is required to establish a knowing and intelligent waiver. See Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App. 1984); Fulbright, 41 S.W.3d at 234. The trial court, however, must take an active role in assessing the defendant's waiver of counsel. See Blankenship, 673 S.W.2d at 583. The record must reflect that the trial court thoroughly admonished the defendant. See Faretta, 422 U.S. at 835-36; Collier, 959 S.W.2d at 626 n. 8. Although the record contains a form that imparted certain information regarding the dangers and disadvantages of self-representation, the record does not reflect the trial judge took an active role in assessing appellant's waiver of counsel. There is no record of a hearing showing the trial judge personally advised appellant of the dangers and disadvantages of self-representation either on June 14, 2002 or August 23, 2002. Further, although the judge at trial reiterated that appellant had been given the right to proceed pro se and reminded appellant of his right to be represented by counsel, including appointed counsel if appellant was indigent, the judge did not further identify or remind appellant of the dangers and disadvantages of self-representation. Therefore, we conclude the court erred in not adequately assessing appellant's waiver of counsel. We must next determine whether appellant was harmed by the trial court's error. Because the error implicates appellant's constitutional right to representation by counsel, we will apply the harm analysis for constitutional error. See Tex.R.App.P. 44.2(a); Fulbright, 41 S.W.3d at 235. When we find error of a constitutional nature, we must reverse the trial court's judgment unless we conclude beyond a reasonable doubt the error did not contribute to the conviction or punishment. See Tex.R.App.P. 44.2(a). In this case, we conclude the error was harmless. The record contains a June 14, 2002 docket sheet entry that states: "atty released — Def. wants to represent himself." Thus, appellant's decision to represent himself was made after he was already represented by counsel. Further, although appellant indicated on the self-representation form that he did not have any money to hire an attorney, the form very clearly advised appellant that counsel would be appointed for indigent defendants. Moreover, before the trial began, the trial judge reiterated that appellant had been "given permission" to represent himself. The judge asked appellant if he understood his rights to retain counsel or have counsel appointed if indigent. Appellant responded, "Yes, sir." There is evidence in the record that appellant was advised of the dangers and disadvantages of self-representation. Appellant signed a form that advised him of what an attorney would do for him. The form specifically advised appellant that an attorney would: (1) help him in trial; (2) select a jury; (3) call witnesses; (4) prepare motions and pleadings; (5) inspect charging instruments; and (6) discuss and negotiate the case with the District Attorney. The form also informed appellant that an attorney would understand criminal law and the rules of procedure and warned appellant that he would be expected to follow the same rules and procedures if he represented himself. Additionally, appellant stated on the self-representation form that he had ten-and-a-half years of school and obtained a GED, but had no law school. Nothing in the record reflects appellant did not understand the proceedings. Appellant also stated on the form that he had previously participated in a trial. The clerk's record contains an extraneous offense list which reflects appellant had prior contact with the criminal justice system. The trial judge explained the proceedings to appellant each step of the way, including: (1) reading the charging instrument; (2) taking appellant's not guilty plea; (3) what invocation of "the Rule" meant; (4) appellant's right to cross-examine the State's witnesses; and (5) at the conclusion of the State's case-in-chief, explaining to appellant his right to call witnesses to testify on his behalf. The judge also stopped the proceedings to ensure a written jury waiver was in the record before the case was tried. Appellant competently cross-examined each of the State's witnesses, called his wife as a witness and questioned her, and testified on his own behalf. The only objection made during trial was by the State and that objection was overruled. The record also reflects that at the close of the testimony, appellant presented some argument. Appellant presented little punishment evidence, but the 180-day sentence was probated, not imposed. Although appellant argues the error is immune from a harm analysis, we disagree. The court of criminal appeals has held that "[e]xcept for certain federal constitutional errors labeled by the United States Supreme Court as `structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). In this case, appellant was not refused representation by counsel. Rather, the error involved the trial court's failure to adequately assess appellant's waiver of counsel. We do not find this error to rise to the level of structural error categorically immune from a harm analysis. Although a detailed record showing the judge actively assessed the defendant's waiver of counsel is the better practice, see Fulbright, 41 S.W.3d at 235, reviewing the record as a whole, we conclude beyond a reasonable doubt the trial court's error did not contribute to appellant's decision to represent himself or to the conviction or punishment. See id. at 236. Therefore, we resolve appellant's first issue against him. We likewise conclude the record does not support appellant's claim that his decision to represent himself was involuntary. The judgment recites that appellant's waiver of counsel was voluntary. Absent direct evidence to the contrary, we presume regularity in the proceedings. See Jones v. State, 77 S.W.3d 819, 822 (Tex.Crim.App. 2002). Nothing in the record rebuts that presumption. The docket sheet entry reflecting appellant's desire to represent himself is dated June 14, 2002 and the self-representation form was signed on August 23, 2002, several months before trial. Appellant was advised in writing of his right to retain counsel or to have counsel appointed if he was indigent. Nothing shows appellant ever rescinded his desire to represent himself or reasserted his desire to have counsel. On the day of trial, the judge again questioned appellant regarding his understanding of his right to counsel. Appellant requested neither appointment of counsel nor additional time to retain counsel. Therefore, we resolve appellant's second issue against him. We affirm the trial court's judgment.
Tex. Pen. Code Ann. § 21.08 (Vernon 2003).
The form stated:
If you had a lawyer he could help you in trial, select a jury, call witnesses, prepare motions and pleadings, inspect charging instruments, discuss and negotiate your case with the District Attorney. An attorney understands the criminal laws and rules of procedure. If you represent yourself, you will be expected to follow all the sames [sic] rules and procedures.
DISSENTING OPINION
Although I agree with the majority that the trial court erred in not properly admonishing appellant on the dangers and disadvantages of representing himself, I would hold that this failure, together with no evidence of appellant's affirmatively requesting to represent himself and affirmative evidence of his questioning whether he wanted to represent himself, is structural error that defies a harm analysis. And even if this is not structural error, I would hold appellant's question mark in answer to the trial court's written question-"Do you still wish to represent yourself?"-should have placed the trial court on notice that inquiry was required into appellant's answers in "Exhibit to Consider Defendant's Request to Proceed Pro Se." Nor do I believe that appellant's proceeding to trial extinguished his need to be fully informed of the dangers and disadvantages of self-representation. In conducting its harm analysis, the majority relies on a docket entry, the trial court's questioning if appellant understood that he had a right to hire an attorney or have one appointed for him, the trial court's helping appellant at each step of the trial, and "an extraneous offense list which reflects appellant had prior contact with the criminal justice system" to show that appellant not only understood the proceedings, but also "that the trial court's error did not contribute to appellant's decision to represent himself." Assuming, without deciding, appellant did want to represent himself, we have no way of determining what difference his knowledge of the dangers and disadvantages of self-representation would have made in (1) his decision and (2) the trial's outcome.
A written form that is ambiguous at best.
STRUCTURAL ERROR
All errors, with the exception of certain federal constitutional errors labeled as structural, are subject to harmless error analysis. See Gonzales v. State, 994 S.W.2d 170, 171-72 (Tex.Crim.App. 1999). Waiver does not apply to complaints involving fundamental systemic requirements. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999). "Structural defects in the constitution of the trial mechanism defy analysis by `harmless-error' standards." Thompson v. State, 89 S.W.3d 843, 853 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Arizona v. Fulminante, 499 U.S. 279, 280 (1991)); Rey v. State, 897 S.W.2d 333, 344 (Tex.Crim.App. 1995) (holding that if constitutional violation impacts structural underpinnings of entire trial, it defies subjugation to harm analysis and calls for automatic reversal). The absence of counsel and self-representation affects the conduct of trial from beginning to end. Rey, 897 S.W.2d at 344. It is error within the framework of the trial itself that defies a harm analysis, not error in the process. Id. at 345. All criminal defendants have a right to represent themselves at trial. Faretta v. California, 422 U.S. 806, 813-17 (1975). The mandates of Faretta are triggered when a defendant appears without an attorney to contest his guilt. See Goffney v. State, 843 S.W.2d 583, 584 (Tex.Crim.App. 1992). We focus not on whether appellant actually waived his right to counsel, but on whether he was aware of the dangers and disadvantages of self-representation. Id. at 585. The trial court must sufficiently admonish a defendant so that he "knowingly and intelligently" forgoes the benefit of counsel. Faretta, 422 U.S. at 835. We do not lightly infer a waiver and indulge in every reasonable presumption against the validity of such a waiver. George v. State, 9 S.W.3d 234, 236 (Tex.App.-Texarkana 1999, no pet.) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).THE DOCKET ENTRY
Docket entries are made only for the clerk's convenience and are usually unreliable. Rush v. Barrios, 56 S.W.3d 88, 95 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Only in certain circumstances can appellate courts consider docket entries as evidence. Guyot v. Guyot, 3 S.W.3d 243, 246-47 (Tex.App.-Fort Worth 1999, no pet.). It is the record, not the docket entry, upon which the parties must rely on appeal. Kerr v. State, 83 S.W.3d 832, 834 (Tex.App.-Texarkana 2002, no pet.) (citing Bell v. State, 734 S.W.2d 83, 84 (Tex.App.-Austin 1987, no pet.)). The majority relies on the June 14, 2002, docket entry of a visiting judge-"atty released-Def. Wants to represent himself" — to show appellant decided to represent himself after he was already represented by counsel. But, the record contains no evidence or document in which appellant purportedly dismissed his attorney and chose to represent himself.SELF-REPRESENTATION FORM
The record must show that the defendant has "sufficient intelligence to demonstrate a capacity to waive his right to counsel and the ability to appreciate the practical disadvantage he will confront in representing himself." Manley v. State, 23 S.W.3d 172, 173-74 (Tex.App.-Waco 2000, pet. ref'd). However, simply handing out a "standardized form" waiver will not replace the trial court's determining whether the defendant understands the consequences of his waiver. See George, 9 S.W.3d at 237. The trial court must determine that the defendant voluntarily and intelligently waives this right. Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2004-05). It is uncontested that appellant signed a preprinted form entitled "Exhibit to Consider Defendant's Request to Proceed Pro Se" on August 23, 2002. This form described the role of counsel and informed appellant that "[i]f you represent yourself you will be expected to follow all the same rules and procedures." Although the form did not follow the statutory language of article 1.051, it substantially complied by advising appellant of his right to court-appointed counsel. Additionally, the form contained certain questions which appellant answered as follows:Years of school, 10½ GED Not law school Have you ever participated in a trial? Yes Has anyone forced you to represent yourself? Yes Do you understand that you will be given time to hire an attorney? No Money Do you understand that you have a right to a Jury Trial? Yes Do you still wish to represent yourself? (italics added).The majority relies on this form to show appellant waived counsel because it informed appellant of his right to have an attorney appointed for him if he was "unable to afford counsel because [he was] indigent" and that he would "be given time to hire an attorney." The majority correctly recites the fill-in-the-blank answers, but never addresses appellant's placing a question mark after "do you still want to represent yourself?" The majority also ignores that appellant answered "yes" to the question "[h]as anyone forced you to represent yourself?" and "no money" to the question of whether he knew that he would be given time to hire an attorney. I take these answers as affirmative evidence that in August 2002, appellant had neither decided to represent himself nor could afford to hire an attorney. Additionally, nowhere in the record can I find where the trial court inquired into appellant's indigent status. The majority also concludes that this form is "evidence" that appellant's GED, previous participation in a trial, and contact with the criminal justice system demonstrate his ability to represent himself. Additionally, the majority uses the unsworn, handwritten comments on the State's punishment recommendation (150 days, probated for one year) to verify appellant's previous experience in the criminal justice system. Although the State signed the plea recommendation in cursive, the person who listed the "prior record and pending cases" did so by printing. Even presuming the same State's attorney that signed the plea agreement printed this list, no evidence shows that appellant is one and the same individual to whom these "prior . . . and pending cases" refer. This unverified list shows a misdemeanor theft case in 1996 and a felony credit card abuse case in 1993 in which some court deferred finding someone guilty. Additionally, the list contains a 1994 misdemeanor bench trial for "harboring a runaway," as well as a 1993 pending felony credit card abuse case. But neither this recommendation nor the record shows that appellant "ever before waived his right to representation" or "that his prior experience was sufficient to show capacity for waiver." See Geeslin v. State, 600 S.W.2d 309, 314 (Tex.Crim.App. 1980). The State's recommendation contained no information on the disposition of the bench trial or the status of the pending credit card abuse case. Without more, I fail to see how the trial court could have evaluated appellant's ability to represent himself or how this Court can now consider the unproven notations to determine harm. These notations went unchallenged which, rather than waiving their validity, shows more inquiry might have changed the outcome of this trial.