IN THE
TENTH COURT OF APPEALS
No. 10-07-00230-CR
WILLIAM RESTO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F39156
MEMORANDUM OPINION
Resto appeals his convictions for two counts of sexual assault of a child and two
counts of indecency with a child by sexual contact, the punishment being enhanced to
that for a first-degree felony by Resto’s prior felony adjudication. See TEX. PENAL CODE
ANN. § 12.42(b), (f) (Vernon Supp. 2007), § 21.11(a)(1), (c) (Vernon 2003), § 22.011(a)(2)
(Vernon Supp. 2007). We affirm.
In one issue, Resto contends that the trial court erred in allowing Resto to represent
himself at trial. Resto moved the trial court to allow Resto to “[r]epresent [him]self with
legal counsel,” that is, appointed standby counsel. (21 R.R. at 4.) The trial court granted
Resto’s motion.1 Resto is represented by appointed counsel on appeal. We understand
that Resto complains that the trial court did not, sua sponte, make “further inquiry” into
Resto’s competence to represent himself at trial. (See Br. at 11.)
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST.
amend. VI. But “the Sixth and Fourteenth Amendments” also “include a ‘constitutional
right to proceed without counsel when’ a criminal defendant ‘voluntarily and
intelligently elects to do so.’” Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008) (quoting
Faretta v. California, 422 U.S. 806, 807 (1975) (emphasis in Faretta)); see U.S. CONST.
amend. XIV, § 1.
The United States Supreme Court held in Faretta v. California, “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’ forego those
relinquished benefits.” Faretta, 422 U.S. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458,
464-65 (1938)); see Edwards, 128 S. Ct. at 2383. The Texas Court of Criminal Appeals has
held in Martin v. Texas, “Faretta does not mandate . . . an inquiry concerning [the]
appellant’s age, education, background, or previous mental health history in every
1 We assume without deciding that Resto preserved his complaint for appellate review. See TEX.
R. APP. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Cameron v. State, 241 S.W.3d
15, 22 (Tex. Crim. App. 2007); Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Buchanan v. State,
207 S.W.3d 772, 775 (Tex. Crim. App. 2006); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005);
Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004); Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim.
App. 1997).
Resto v. State Page 2
instance where an accused expresses a desire to represent himself, for the record may
otherwise be sufficient to make ‘an assessment of his knowing exercise of the right to
defend himself.’” Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982) (quoting
Faretta at 836) (emphasis omitted) (some internal quotation marks omitted).
Resto relies primarily upon the United States Supreme Court’s opinion in Indiana v.
Edwards. See Edwards, 128 S. Ct. 2379. In Edwards, the Supreme Court holds that “the
Constitution does not forbid a State . . . to insist” that a “defendant proceed to trial with
counsel, the State thereby denying the defendant the right to represent himself.” Id. at
2381. Resto concedes “that the Edwards case does not explicitly provide for a new legal
standard for pro se criminal defendants.” (Br. at 11.) Resto nonetheless argues,
“arguing in the obverse, Edwards would seem to indicate that further inquiry, of the
very sort the Court Criminal Appeals found unnecessary in Martin, should be
undertaken by trial judges in instances where criminal defendants whose competence is
in doubt . . . seek to represent themselves.” (Id.); see Martin, 630 S.W.2d 952.
Under the United States Constitution, “a State may . . . permit a gray-area
defendant,” that is, a defendant who satisfies Dusky v. United States’s standard for
mental competence but might not satisfy some higher standard, “to represent himself.”
Edwards, 128 S. Ct. at 2385 (citing Godinez v. Moran, 509 U.S. 389 (1993)) (emphasis
omitted); see Dusky v. United States, 362 U.S. 402 (1960). Edwards does not overrule or
even challenge that prior law. See Edwards at 2388. Edwards does, however, expressly
decline to adopt a different standard. Id.
Resto v. State Page 3
Resto does not suggest how the trial record is not sufficient for the trial court to
make an assessment of Resto’s knowing exercise of the right to defend himself. 2 Most of
what Resto points to as reasons Resto was not mentally competent to represent himself,
for example, his reference to his prior adjudication during his examination of the venire
panel, concerns instead Resto’s “technical legal knowledge,” which Edwards expressly
holds “not relevant” to the mental-competence evaluation. See Edwards, 128 S. Ct. at
2385 (quoting Moran, 509 U.S. at 400; Faretta, 422 U.S. at 836); see Edwards at 2386-87.
The trial court had before it the reports of psychological examinations of Resto’s sanity
and his mental competence for trial. Those reports consider most of the Martin factors
that Resto urges us to require the trial court to inquire into. See Martin, 630 S.W.2d at
954.
Resto does not show that the trial court erred in granting Resto’s motion to
represent himself. We overrule Resto’s issue.
Having overruled Resto’s sole issue, we affirm.
TOM GRAY
Chief Justice
2 The trial court found:
Defendant clearly and unequivocally declared that he wanted to represent himself.
Defendant wished to waive his right to counsel.
Defendant’s waiver is voluntarily and intelligently made.
The Court advised Defendant of the dangers and disadvantages of self-representation.
The Court advised Defendant that he would be required to follow trial procedure.
(1 C.R. at 201.)
Resto v. State Page 4
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed September 17, 2008
Do not publish
[CRPM]
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