IN THE
TENTH COURT OF APPEALS
No. 10-13-00422-CR
SIMPSON THOMPSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. D34995-CR
MEMORANDUM OPINION
Simpson Thompson appeals from a conviction for possession of a controlled
substance less than one gram. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010).
Thompson complains that the trial court erred by refusing his oral motion for
continuance to allow him ten days to prepare for trial and that his waiver of right to
counsel was invalid. Because we find that the waiver of Thompson's right to counsel
was invalid, we reverse the judgment and remand this proceeding to the trial court for a
new trial.
Waiver of Right to Counsel
In his second issue, Thompson complains that his waiver of right to counsel was
invalid because the trial court did not properly admonish him prior to the execution of
his waiver pursuant to Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L.
Ed.2d 562 (1975).
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. U.S. CONST. amend. VI; TEX.
CONST. art. I, § 10. However, this right to counsel may be waived, and the
defendant may choose to represent himself at trial. Faretta v. California,
422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed.2d 562 (1975). Although the
right to self-representation is absolute, 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. George v. State, 9
S.W.3d 234, 236 (Tex. App.—Texarkana 1999, no pet.) (citing Johnson v.
Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), and
Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978)).
How does a court decide whether a valid waiver of counsel exists? Faretta
requires that (1) the appellant make a "knowing and intelligent" waiver;
and (2) the appellant must be made aware of the "dangers and
disadvantages of self-representation." Id. (citing TEX. CODE CRIM. PROC.
ANN. art. 1.051 (Vernon Supp. 1999)); Faretta, 422 U.S. at 835, 95 S. Ct. at
2541. To decide whether a defendant's waiver is knowing and intelligent,
the court must make an inquiry, evidenced by the record, which shows
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. George, 9 S.W.3d at
237 (citing Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th
Dist.] 1990), aff'd, 816 S.W.2d 424 (Tex. Crim. App. 1991)). The court must
determine not only that the defendant wishes to waive his right to
counsel, but that he understands the consequences of such waiver. Id.
Although it is not mandatory that the warnings be given in writing, we
have previously held that the record must show that the defendant
understands the consequences of his waiver. Goffney v. State, 812 S.W.2d
Thompson v. State Page 2
351, 352 (Tex. App.—Waco 1991), aff'd, 843 S.W.2d 583 (Tex. Crim. App.
1992). It is not enough that the record show conclusions by the trial court
that the defendant is aware of the dangers and disadvantages of self-
representation.
Griffith v. State, No. 10-11-00262-CR, 2013 Tex. App. LEXIS 5200 at * 2-3 (Tex. App.—
Waco April 25, 2013, pet. ref'd) (mem. op.) (citing Manley v. State, 23 S.W.3d 172, 173-74
(Tex. App.—Waco 2000, pet. ref'd).
Relevant Facts
On the day of trial, just prior to the start of voir dire, Thompson made an oral
motion to represent himself and asked for time to prepare a defense. The State
responded by saying that it was up to the trial court, but that "it's a bad idea."
The trial court then stated to Thompson:
Well, I will allow you to represent yourself, sir. But I want you to
understand I'm not giving you a continuance. This case is set for trial
today, it's been set for trial today.
I believe that it is a very bad idea for you to represent yourself, but you do
have that right, and if you chose to do that, we are going to go forward
today, sir.
Thompson's trial counsel then asked the trial court to allow him to withdraw,
which the trial court ultimately allowed. Initially the trial court was going to have
Thompson's trial counsel to act as standby counsel, but Thompson did not want him to
continue in that capacity and the trial counsel stated that he felt that he could not
participate in that capacity. Thompson's trial counsel offered to remain in the
courtroom to follow the proceedings and to be prepared in case Thompson changed his
Thompson v. State Page 3
mind at some point during the trial; however, the trial court did not allow this.
Thompson stated that he felt that given additional time to research he would be able to
represent himself at the trial because he felt that his trial counsel was inadequate. The
trial court then granted the motion for self-representation but denied Thompson's
motion for continuance.
A break was taken for the purpose of having Thompson execute a written waiver
of the right to counsel and then the following exchange took place between the trial
court and Thompson:
TRIAL COURT: Sir, you've advised the Court that you want to waive
your right to counsel, and you're electing to proceed pro se. I'm going to
read this Motion for you – or this waiver.
I've been advised, this 12th day of November, 2013, by the Court of my
right to representation by counsel in the case pending against me. I have
further been advised that if I am unable to afford counsel, one will be
appointed for me free of charge, and I have been admonished by the
Court about the dangers and disadvantages of representing myself and of
the obligations involved.
And Mr. Thompson, I – I did advise you that you're going to be under the
same Rules and – and guidelines as an attorney; do you understand that,
sir?
THOMPSON: Ma'am, I understand that.
TRIAL COURT: Okay.
THOMPSON: All I ask is for time to prepare for this trial.
TRIAL COURT: And – and I've denied that, sir. Understanding my
right to have counsel –
THOMPSON: Well, if you've denied it –
Thompson v. State Page 4
TRIAL COURT: – appointed – sir, I am talking.
Understanding my right to have counsel appointed for free of charge, if I
am not financially able to employ counsel and of the dangers and
disadvantages of representing myself, I wish to waive that right and
request the Court to proceed with my case without an attorney being
appointed for me. I hereby waive my right to counsel and elect to
represent myself.
Is that what you wish to do, sir?
THOMPSON: Yes. But I also wish – I – I also wish to have a fair trial
– and a chance to have a fair trial instead of being kicked to the side and
made to – I would like to take the time to represent myself. I know I can
do it. I – I did before.
TRIAL COURT: And I –
THOMPSON: All I'm asking is give me time to prepare myself for
the trial.
TRIAL COURT: I need you to sign that, sir, if that's what you wish to
do.
And I will get you a copy of this in just a second, sir. And you as well
[trial counsel].
And at this time, Mr. Thompson has signed the waiver. [Trial counsel] are
released from the case. And at this time, that will conclude this hearing.
Analysis
The record demonstrates that Thompson was aware that he would have to
follow the same rules as an attorney and that representing himself was "a very bad
idea," however, that is where the admonishments regarding the dangers and
disadvantages of representing himself ended. The record does not evidence that the
Thompson v. State Page 5
trial court made any attempt to explain why it was a bad idea for Thompson to
represent himself. Further, there is nothing in the record to show that the trial court
ensured that Thompson was made aware of any specific difficulties he might encounter
in representing himself beyond a general recognition that he would have to follow the
rules that attorneys are bound to follow. There is nothing in the record to show that
Thompson had been provided with an opportunity to review or have access to
discovery, and it appears from an exchange at the beginning of voir dire that he did not
have that opportunity.
While Faretta does not mandate an inquiry concerning the defendant's age,
education, background or previous mental health history in every instance where an
accused expresses a desire to represent himself, Martin v. State, 630 S.W.2d 952, 954
(Tex. Crim. App. 1982), the record must contain proper admonishments concerning pro
se representation and any necessary inquiries of the defendant so that the trial court
may make "an assessment of his knowing exercise of the right to defend himself."
Faretta, 422 U.S. at 836; see also Blankenship v. State, 673 S.W.2d 578, 580 (Tex. Crim. App.
1984).
Because we are required to indulge every reasonable presumption against the
validity of a waiver to the right to counsel, and because the record does not
demonstrate that the trial court adequately advised Thompson of the dangers and
disadvantages of self-representation, we find that the record is inadequate to establish
Thompson v. State Page 6
that Thompson's waiver of right to counsel was knowingly and intelligently made.
Because of this, Thompson's waiver was invalid.
Harm Analysis
The complete denial of the right to trial counsel is a structural defect for which
prejudice is presumed. Williams v. State, 252 S.W.3d 353, 357 (Tex. Crim. App. 2008)
(citing Gideon, 372 U.S. at 339-47). The error is therefore not subject to a harm analysis
but requires reversal. Id. at 357. We sustain Thompson's second issue. Since this error
requires that we reverse and remand for a new trial, it is not necessary to address
Thompson's first issue regarding the trial court's denial of ten days to prepare for trial.
Conclusion
Because we find that Thompson's waiver of right to counsel was invalid, we
reverse the judgment of conviction and remand this proceeding to the trial court for a
new trial.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed October 23, 2014
Do not publish
[CR25]
Thompson v. State Page 7