NO. 12-02-00165-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ENNIS JOHNSON,§ APPEAL FROM THE THIRD
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ ANDERSON COUNTY, TEXAS
OPINION
Appellant Ennis Ray Johnson was convicted by a jury of the felony offense of Aggravated Assault. The jury assessed punishment at seventy-five years in the Texas Department of Criminal Justice-Institutional Division ("T.D.C.J.-I.D."). On appeal, Appellant complains that he was denied his constitutional right of self-representation. We reverse and remand for a new trial.
Background
When the assault occurred, Appellant was an inmate of the T.D.C.J.-I.D. and the victim, Belinda Maple, was a correctional officer at the unit of the T.D.C.J.-I.D. in which Appellant was imprisoned. On the morning of January 25, 1999, Maple had a minor altercation with Appellant about his failure to tuck in his shirt. Later that day, Maple was hit in the face and knocked unconscious. Another correctional officer testified that he witnessed Appellant assault Maple. Maple's family physician testified that Maple possibly suffered from a non-displaced orbital fracture which did not require surgery. The victim testified that four years after the assault, she was still suffering from numbness of the teeth.
Upon Appellant's request, his attorney had filed a Motion to Withdraw as Counsel due to the fact that Appellant did not agree with the way counsel was preparing the case. The motion, which was filed ten days before trial, was denied. On the day the trial commenced, but before a jury was empaneled, Appellant's attorney stated to the trial court that Appellant wished to represent himself. The trial court refused to hold a hearing on Appellant's request, and defense counsel continued to represent Appellant throughout the trial. The jury convicted Appellant of Aggravated Assault on a Correctional Officer, and this appeal followed.
The Right Of Self-Representation
The seminal decision on the right of self-representation is Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In Faretta, the Supreme Court held that a defendant in a federal or state criminal trial has a right under the Sixth and Fourteenth Amendments to proceed without counsel when he elects to do so. Id., 422 U.S. at 814, 95 S. Ct. at 2530-31. The right of self-representation entails a waiver of the right to counsel, since a defendant obviously cannot enjoy both rights at trial. See Burton v. Collins, 937 F.2d 131, 133 (5th Cir. 1991); see also United States v. Johnson, 223 F.3d 665, 668 (7th Cir. 2000).
While the right to counsel is in force until waived, the right of self-representation does not attach until asserted. Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982). In order for a defendant to represent himself, the request must be "clear and unequivocal," Burton, 937 F.2d at 133, and he must "knowingly and intelligently" forego counsel. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. Before the trial court accepts the request, the defendant must be "made 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.'" Id. (quoting Adams v. United States, 317 U.S. 269, 279, 63 S. Ct. 236, 242, 87 L. Ed. 2d 268 (1942)). A request is timely if it is made before the trial court empanels a jury, at least where there is no suggestion that the motion to defend pro se is a tactic to secure delay. See Ex parte Winton, 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); see also McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997)("An accused's right to self-representation must be asserted in a timely manner, namely, before the jury is impaneled."). "[A]lthough an exercise of the right of self-representation may cause some inconvenience or even disruption in the trial proceedings, so long as it is not a calculated obstruction, this delay cannot deprive the accused of the right once properly asserted." Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd).
Unlike the right to counsel, the right of self-representation can be waived by defendant's mere failure to assert it. Brown, 665 F.2d at 610-11. And even if a defendant requests to represent himself, the right may be waived through the defendant's subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. Chapman v. United States, 553 F.2d 886, 893 n.12 (5th Cir. 1977).
It is not necessary that a defendant continually renew his request to represent himself to avoid waiver. Brown, 665 F.2d at 612. "While the number of times a defendant repeats a request may make his intent to waive counsel clearer, the fact that he asks to represent himself only once, standing alone, does not make his request unclear." Burton, 937 F.2d at 133 n.3. Further, a trial court may not "unduly defer a ruling on a firm request by defendant to represent himself in the hopes the defendant may change his mind." Brown, 665 F.2d at 612.
A trial court's denial of a defendant's constitutional right of self-representation is not amenable to a harmless error analysis. The right is either respected or denied; its deprivation cannot be harmless. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8, 79 L. Ed. 2d 122 (1984).
Discussion
The two questions before us are whether Appellant made a clear and unequivocal assertion of his right of self-representation, and if he did so, whether he later waived that right. In the case before us, the following discourse occurred in open court:
The Court: All right. As we speak, the jury is being seated right now. The jury panel is being seated. What is it that the Defense wants, counsel?
Ms. Law: Your Honor, my client has informed me that he wishes to represent himself and not continue with my representation.
The Court: Well, this comes a bit late. The jury has already been qualified. The panel is being seated at this time. I am not inclined to delay the trial while I conduct a Faretta vs. California hearing. And I may consider that after the voir dire, but at the present I'm not-I am not willing to delay the trial long enough to conduct that kind of a hearing. So you are going to voir dire the jury and then we will see where we are.
Appellant was not in the courtroom at the time this exchange took place.
The State argues that because Appellant did not personally assert his right to self-representation, there was no clear and unequivocal assertion of his right of self-representation. Consequently, there was no violation of Appellant's constitutional right. Appellant, on the other hand, contends that he invoked his right when Appellant's attorney stated that Appellant wished to relieve counsel and represent himself.
The general rule is that a court may accept counsel's representations and the defendant is bound thereby, except upon a showing of counsel's bad faith or gross negligence. Brown, 665 F.2d at 612. Counsel may even waive his client's constitutional rights, if so requested by his client. See United States v. Spiegel, 604 F.2d 961, 965 (5th Cir. 1979) (defendant's attorney waived right to a jury of twelve in the absence of a finding that defendant either was consulted about the decision or personally and intelligently assented to fewer than twelve); Winters v. Cook, 489 F.2d 174, 177 (5th Cir. 1973) (rejecting syllogism that "since the rights are those of the defendant, he alone may waive them); United States v. Marcello, 423 F.2d 993, 1001-03 (5th Cir.), cert. denied, 398 U.S. 959, 90 S. Ct. 2172, 26 L. Ed. 2d 543 (1970) (attorney waived defendant's constitutionally guaranteed right to a trial by an impartial jury of the State and district where the crime was committed). We hold, therefore, that Appellant's assertion of his right of self-representation was "clear and unequivocal." Further, we hold that although Appellant failed to reiterate his request, this, without more, did not forfeit Appellant's right to defend himself.
When defense counsel stated, before the jury was empaneled, that Appellant wished to represent himself, the trial court was obliged to conduct a Faretta hearing in order to make Appellant aware of the consequences of self-representation. See Birdwell, 10 S.W.3d at 77. It is axiomatic that if a court does not conduct a hearing, it cannot determine if the request was for purposes of delay, nor can it make a record which would establish that Appellant "knows what he is doing and his choice is made with eyes open." Adams, 317 U.S. at 279, 63 S. Ct. at 242. Thus, when the trial court failed to hold the hearing and make a ruling, it effectively denied Appellant's constitutionally guaranteed right to represent himself. We sustain this issue and do not reach the remainder of Appellant's points. We reverse the judgment of the trial court and remand for a new trial.
JAMES T. WORTHEN
Chief Justice
Opinion delivered May 30, 2003.
Panel consisted of Worthen, C.J. and Griffith, J.
(DO NOT PUBLISH)