NO. 07-11-00159-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 19, 2011
ANGEL JAIME TARANGO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT OF OCHILTREE COUNTY;
NO. 19,326; HONORABLE EARL MCKINLEY, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Angel Jamie Tarango appeals the order of the trial court revoking his
community supervision and sentencing him to 180 days’ confinement in the county jail.
Finding appellant was denied the fundamental right to counsel at the hearing on the
State’s motion to revoke community supervision, we reverse the order of the trial court
and remand the case for a new hearing.
Background
On February 2, 2010, appellant plead guilty to the charge of driving while
intoxicated, second offense.1 The trial court found him guilty and sentenced him to
confinement in the county jail for one year but suspended his sentence and placed him
on community supervision for two years. In a motion to revoke appellant’s community
supervision filed August 16, 2010, the State alleged five violations as grounds.
On April 5, 2011, appellant appeared without counsel in open court and plead not
guilty to an unrelated charge of driving with a suspended license. The court instructed
him to retain counsel and return on a later date. The court then called the State’s
motion to revoke in the underlying case. Still without counsel, appellant responded the
allegations were true. But following a recess, when the court again inquired about the
allegations, appellant responded, “Not true, sir.” At that, the State announced ready to
proceed and the court instructed the prosecutor to present the State’s case. The only
witness was appellant’s probation officer. Appellant asked one question on cross-
examination. The State rested and closed. During a following exchange, appellant told
the court he had an appointment with a lawyer. The prosecutor, apparently believing
appellant had waived his right to counsel by his actions at the hearing, took the position
the case was “over” but for sentencing. Without further inquiry concerning appellant’s
representation by counsel, the court found the allegations of probation violations to be
true, and pronounced sentence. This appeal followed. In lieu of a brief, the State has
1
Tex. Penal Code Ann. § 49.04 (driving while intoxicated is a Class B
misdemeanor) and § 49.09(a) (enhancement to Class A misdemeanor on showing of
prior conviction for, inter alia, offense relating to operation of motor vehicle while
intoxicated) (West 2011).
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filed a letter acknowledging that review of the record reveals no express waiver of
counsel by appellant with respect to the motion to revoke.
Analysis
By his first issue, appellant asserts he was denied representation of counsel at
the hearing on the State’s motion to revoke community supervision.
A criminal defendant has a fundamental right to counsel. U.S. Const. Amend. VI;
Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2010);
Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975);
Gideon v. Wainwright, 372 U.S. 335, 340-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963);
Williams v. State, 252 S.W.3d 353, 355-56 (Tex.Crim.App. 2008). The right applies at a
probation revocation hearing. Hatten v. State, 71 S.W.3d 332, 333 n.1 (Tex.Crim.App.
2002) (citing Ruedas v. State, 586 S.W.2d 520 (Tex.Crim.App. 1979)). While an
accused may waive his right to counsel, he must do so voluntarily, knowingly and
intelligently. Webb v. State, 533 S.W.2d 780, 785 (Tex.Crim.App. 1976) (citing
Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972)
(holding “absent a knowing and intelligent waiver, no person may be imprisoned for any
offense, whether classified as petty, misdemeanor, or felony, unless he was
represented by counsel at trial”)).
The constitution also affords the accused a reciprocal right of self-representation
at trial. Faretta, 422 U.S. at 818-22, 95 S.Ct. at 2532-34; Williams, 252 S.W.3d at 356.
But the right of self-representation does not attach until it is clearly and unequivocally
asserted. Id., 422 U.S. at 835, 95 S.Ct. at 2541. “When a criminal defendant chooses
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to waive his right to counsel and represent himself, the waiver should be made
knowingly and intelligently and he should be warned of the dangers and disadvantages
accompanying such waiver.” Hatten, 71 S.W.3d at 333 (citing Faretta, 422 U.S. at 835-
836).
This record contains no testimonial or written evidence that appellant knowingly
and intelligently waived his right to counsel. Webb, 533 S.W.2d at 785; Tex. Code
Crim. Proc. Ann. art. 1.051(g) (West Supp. 2010) (providing written waiver); but see
Burgess v. State, 816 S.W.2d 424, 429-31 (Tex.Crim.App. 1991) (holding no statutory
or constitutional requirement of a written waiver of right to counsel). Nor did appellant
clearly and unequivocally assert the right of self-representation. Williams, 252 S.W.3d
at 356. In the absence of a waiver of the right of counsel, we conclude the trial court
erred in proceeding to disposition of the State’s motion to revoke.
The complete denial of the right to trial counsel is a structural defect for which
prejudice is presumed. Williams, 252 S.W.3d at 357 (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 appellant’s first issue.
By his second issue, appellant asserts the trial court erred by not ensuring that
he was properly served with a copy of the State’s motion to revoke. We do not reach
this issue because its review is unnecessary to disposition of the appeal. Tex. R. App.
P. 47.1.
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Conclusion
Having sustained appellant’s first issue, we reverse the order of the trial court
and remand the case for a new hearing on the State’s motion to revoke community
supervision.
James T. Campbell
Justice
Do not publish.
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