Jury selection is a critical stage in a criminal trial such that the trial is unfair if the accused is denied counsel during that part of the trial. United States v. Hanno, 21 F.3d 42, 47 (4th Cir. 1994); Nelson v. State, 810 S.W.2d 753, 755 (Tex.App.-Dallas 1991, pet. ref'd) (right to counsel attaches for voir dire of jury panel). The portion of a criminal trial during which evidence is taken on the issue of defendant's guilt is likewise a critical stage during which the defendant has the right to counsel.
On direct appeal his conviction was reversed and remanded for new trial. See Nelson v. State, 810 S.W.2d 753 (Tex.App.-Dallas 1991, pet. ref'd). His second trial commenced on or about June 23, 1993, and resulted in a verdict of not guilty returned on June 23, 1993. Under the standard set out in Heck v. Humphrey, his suit for malicious prosecution accrued on the date of his acquittal, requiring that his § 1983 action be filed on or before June 23, 1995, unless his failure to file by such date is otherwise excused.
Therefore, the improper denial of the right mandates automatic reversal of the defendant's conviction. See Nelson v. State, 810 S.W.2d 753, 755 (Tex.App.-Dallas 1991, pet. ref'd). However, an assertion of the right to self-representation must be made in a timely manner.
Automatic reversal is required. Nelson v. State, 810 S.W.2d 753, 755 (Tex.App.-Dallas 1991, pet. ref'd). We sustain Steele's issue on appeal.
The demand is timely if it is asserted before the jury is empaneled and if there is no affirmative showing that the demand is merely a delaying tactic. See Chapman v. United States, 553 F.2d 886, 887 (5th Cir. 1977); Blankenship v. State, 673 S.W.2d 578, 585 (Tex.Crim.App. 1984); Nelson v. State, 810 S.W.2d 753, 754 (Tex.App.-Dallas 1991, pet. ref'd). Several letters from Sampson to various judges show that he did want a different attorney, perhaps one that he might retain himself.
The trial court then granted appellant's request to waive his right to counsel and to proceed pro se. Appellant correctly argues that the United States Supreme Court has recognized the right to self-representation as a "structural error," which can never be treated as a harmless error. In re K.R., 63 S.W.3d 796, 799-800 (Tex. 2001), cert. denied, Rodriguez v. Texas Dept. of Protective Services, 536 U.S. 941 (2002); Nelson v. State, 810 S.W.2d 753, 755 (Tex. App.-Dallas 1991, pet. ref'd). Nevertheless, although the trial court initially denied appellant's request to waive his right to counsel, the trial court granted appellant's motion and changed its ruling prior to any substantive continuation in the proceedings.