AFFIRM; Opinion Filed November 19, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01520-CR
DARRYL RAYNARD GORDON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 30600-422
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice Myers
Appellant Darryl Raynard Gordon was convicted by a jury of evading arrest or detention
with a motor vehicle and sentenced by the jury to life imprisonment. In one issue, he argues the
trial court did not adequately admonish him concerning the dangers and disadvantages of self-
representation, thereby violating appellant’s rights under the Sixth and Fourteenth Amendments
of the United States Constitution and Article 1.051 of the Texas Code of Criminal Procedure.
We affirm.
DISCUSSION
In his issue, appellant argues the trial court’s admonishments did not go far enough and
that “the court should have delved further and deeper into [a]ppellant’s intelligence, competence,
and knowledge of the ramifications of self-representation.” Appellant contends these failures by
the trial court violated the Sixth and Fourteenth Amendments of the United States Constitution as
well as article 1.051 of the Texas Code of Criminal Procedure. The State responds that the trial
court adequately admonished appellant regarding the dangers and disadvantages of self-
representation, and that any deficiency in the admonishments was harmless because appellant
was afforded stand-by counsel.
Federal and state law guarantee a criminal defendant the right to the assistance of counsel
as well as the right to waive counsel and represent himself. See U.S. CONST. amend. VI & XIV;
TEX. CONST. art. 1 § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (West 2005) (accused “shall
have right of being heard by himself, counsel, or both”); Faretta v. California, 422 U.S. 806,
818–820 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002). In Faretta, the
U.S. Supreme Court established the independent right of self-representation, in addition to the
previously recognized right to waive the assistance of counsel. Faretta, 422 U.S. at 819–820
A defendant can choose to proceed pro se by exercising his right of self-representation.
See TEX. CONST. art. 1 § 10 (“[an accused] shall have the right of being heard by himself . . .”);
Faretta, 422 U.S. at 818–820 (1975); Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App.
1999); Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997); Geeslin v. State, 600
S.W.2d 309, 313 (Tex. Crim. App. 1980). When the right of self-representation was established
in Faretta, the Supreme Court stated that “[a]lthough a defendant need not himself have the skill
and experience of a lawyer in order to competently and intelligently choose self-representation,
he should be made aware of the dangers and disadvantages of self-representation . . . .” Faretta,
422 U.S. at 835; see also Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984);
Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982); Collier, 959 S.W.2d at 626. Once
the defendant asserts his right of self-representation, the trial court must advise the accused of the
dangers and disadvantages of self-representation. Ex parte Winton, 837 S.W.2d 134, 135 (Tex.
Crim. App. 1992); Williams v. State, 774 S.W.2d 703, 705 (Tex. App.––Dallas 1989, pet. ref’d).
–2–
But when the trial court appoints stand-by counsel, those admonishments are not
required. Walker v. State, 962 S.W.2d 124, 126–27 (Tex. App.––Houston [1st Dist.] 1997, pet.
ref’d); Robertson v. State, 934 S.W.2d 861, 865–66 (Tex. App.––Houston [14th Dist.] 1996, no
pet.); see also Maddox v. State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1980) (op. on motion for
reh’g) (admonishment required only where defendants represent themselves without assistance
of counsel); Newkirk v. State, No. 05–12–00202–CR, 2013 WL 222278, at *2 (Tex. App.––
Dallas Jan. 22, 2013, no pet.) (not designated for publication); Sumrell v. State, No. 05–09–
00238 & 39–CR, 2010 WL 3123302, at *2 (Tex. App.––Dallas Jan. 26, 2011, pet. ref’d) (not
designated for publication). Where hybrid representation is allowed or standby counsel
appointed, no question of waiver of counsel is involved because counsel remains to assist the
defendant, and, as a result, there is no need to admonish the defendant of the dangers and
disadvantages of self-representation. See Maddox, 613 S.W.2d at 286; Robertson, 934 S.W.2d at
865; Newkirk, 2013 WL 222278, at *2.
The record in this case shows that appellant signed a one-page document entitled “Notice
Concerning Dangers and Disadvantages of Self-Representation and Notice Concerning Financial
Inability to Hire An Attorney” on April 4, 2012, over six months before the start of trial. On
April 9, 2012, the court appointed trial counsel for appellant. Trial counsel sought leave to
withdraw in a motion filed on September 13, 2012. On September 24, 2012, a hearing was held
on the motion to withdraw. During the hearing, appellant told the court several times he wanted
to represent himself. The trial court repeatedly warned appellant against self-representation:
Let me just say that is a very dangerous thing for you to do. I don’t recommend
it. There are many hazards involved.
****
As [trial counsel] indicated, you have a constitutional right to represent yourself.
There are great dangers in doing that. I would never recommend to any defendant
that they represent themselves. You’re held to the same rules of evidence and
–3–
procedure as a trained lawyer. You obviously don’t have that training. There’s
no way in my opinion you can adequately represent yourself on what appear to be
four different cases.
****
You have the right to represent yourself; but if you opt to do that, then you
represent yourself. If I put a lawyer in a stand-by position to be available for
advice, that means he can give you some advice; but he’s not going to be the one
interrogating the witnesses. He’s not going to be the one doing the voir dire.
He’s not going to be the one objecting to evidence. He’s not going to be the one
trying to defend an objection. You’re going to be held to the same standards as a
board certified lawyer on procedure and evidentiary matters. And frankly, there is
no way you could be up to speed on it.
****
So I don’t recommend it. I think you’re dealing with fire without having a hose to
fight the blaze. And so I don’t suggest or recommend that you do it. You have
the absolute right to do it if you want to, but I don’t suggest it and don’t
recommend it.
Before granting trial counsel’s motion to withdraw, the trial court asked appellant:
THE COURT: Okay. All right, Mr. Gordon, let me be crystal clear with you on
this. You are electing to represent yourself, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: On all four cases?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. I’m going to grant your motions to withdraw on all four
cases.
After granting the motion to withdraw, the trial court subsequently appointed stand-by counsel
for appellant.
At a pretrial hearing held on October 25, 2012, shortly before the start of trial, appellant
announced ready for trial and was again admonished regarding the enhanced punishment ranges
for all four of his pending cases. The trial court reiterated that appellant would be allowed to
represent himself at trial, and the court explained to appellant the limits of stand-by counsel’s
involvement in the case. The court reviewed appellant’s duties in the voir dire process, and, in
–4–
response to appellant’s inquiries, the prosecutor clarified which witnesses would likely be called
in the State’s case-in-chief.
When the case was called for jury trial on October 29, 2012, the trial court began by
noting stand-by counsel’s presence and availability to act in an advisory role for appellant. After
appellant entered a not-guilty plea outside the jury’s presence, the trial court admonished
appellant regarding the charged offense 1 and the right to appointed counsel. Appellant agreed he
wanted the previous attorney removed from the case, but advised the court he did not want to
waive his right to counsel because a waiver might harm him “in the appeal process.” After the
court explained to appellant that he would have to waive his right to counsel if he wanted to
represent himself, appellant signed a written waiver of the right to counsel and announced he was
ready for trial. The trial court then admonished appellant regarding the right to a jury trial and
the Fifth Amendment right not to testify. Appellant indicated he would not testify. The trial
court further admonished appellant of his right to call witnesses and to confront and cross-
examine the State’s witnesses. The record here shows appellant’s ability to communicate
clearly, conduct himself appropriately and respectfully, proceed in an orderly fashion, cross-
examine the State’s witness, object (with the assistance of stand-by counsel) to the submission of
a deadly weapon issue in the jury charge at guilt-innocence, and deliver closing arguments at
both the guilt-innocence and punishment phases of the trial. Stand-by counsel was present in
court throughout the trial. 2
1
The trial court explained to appellant that if he was convicted of the charge in the indictment, and if the State proved the two enhancement
paragraphs, appellant’s range of punishment would increase to a minimum of 25 years and up to 99 years or life in prison.
2
After the jury retired to deliberate appellant’s punishment, he affirmed that stand-by counsel had been available throughout the trial:
THE COURT: Back on the record. The jury is outside the presence of the court.
[STAND-BY COUNSEL]: Mr. Gordon, this is the conclusion of evidence and arguments in the case. I just want to ask
you one last time. Knowing that the Court appointed me as essentially standby counsel or resource, not necessarily your
lawyer, have you had the opportunity to ask me any questions throughout this proceeding that you needed to?
THE DEFENDANT: Yes, sir, I have.
–5–
This Court has previously held that when, as in this case, a defendant has standby counsel
at his disposal, a trial court is not required to admonish a defendant on the dangers and
disadvantages of self-representation. See, e.g., Newkirk, 2013 WL 222278, at *3, Sumrell, 2010
WL 3123302, at *2. We therefore reject appellant’s contention that the trial court failed to
adequately advise appellant of the dangers and disadvantages of self-representation. The record
shows appellant had stand-by counsel at his disposal throughout the trial of this case, and that
appellant was repeatedly admonished by the trial court regarding the dangers and disadvantages
of self-representation. Accordingly, appellant’s constitutional and statutory rights were not
violated. We overrule appellant’s issue.
We affirm the trial court’s judgment.
/s/ Lana Myers
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
121520F.U05
[STAND-BY COUNSEL]: And are you satisfied I’ve answered to the best of my abilities, given you maybe not the
answers that you wanted, but a correct recitation of the law?
THE DEFENDANT: Yes, sir.
[STAND-BY COUNSEL]: Nothing further.
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DARRYL RAYNARD GORDON, On Appeal from the 422nd Judicial District
Appellant Court, Kaufman County, Texas
Trial Court Cause No. 30600-422.
No. 05-12-01520-CR V. Opinion delivered by Justice Myers.
Justices FitzGerald and Francis participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 19th day of November, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
–7–