dissenting.
The majority reverse this conviction because the incomplete record before us fails to reflect a voluntary and knowing waiver by appellant of his right to counsel and because that incomplete record fails to reflect that he was made aware of the dangers and disadvantages of self-representation.
If the issue is to be addressed on the merits despite the deficiencies in the .record, *374the ground of error should be overruled. The record that is before us presents facts suggesting appellant has manipulated his right to counsel in such a manner as to defeat the orderly process of justice.
In Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App., 1977), the defendant was represented for five months before trial by appointed counsel. On the day of trial he complained for the first time that he did not want to be represented by that attorney. The author of the majority opinion and I agreed in his dissent to reversal of Thomas’ conviction that such manipulation of the right to counsel should not be sanctioned. In the case at bar appellant was represented by retained counsel almost four months prior to trial. Two months before trial that attorney was permitted by the court to withdraw and appellant was given the opportunity to hire another attorney. When his case came on for trial two months later, appellant still had not hired another attorney. Just as a defendant represented by appointed counsel should not be allowed to manipulate his right to counsel by waiting until the day of trial to reject his appointed counsel, so also should a defendant who is able to retain counsel and who has retained counsel not be permitted to manipulate his right to counsel by appearing on the day of trial without having hired an attorney.
The author of the majority opinion and I agreed on this general principle in Thomas v. State, supra, and I am at a loss to understand why he has apparently abandoned that recently stated position in the factual context of the instant case. If the issue is to be decided on the merits, the indications in the record of manipulation of the right to counsel should dictate denial of relief on this ground of error. For this reason, I dissent to reversal of the conviction.
Alternatively, I dissent to disposition of the issue on the merits because of the incomplete state of the record and the belated assertion of the issue by appellant.
The only transcribed reporter’s notes in the record before us show part of the proceedings on the day of trial. The docket sheet reflects five appearances prior to trial. At the first three appellant was represented by counsel. On the fourth date, September 11, 1975, counsel withdrew v/ith leave of court. On September 25 appellant again appeared without counsel. No record is before us of the proceedings on those dates.
The claim of denial of the right to counsel was first raised in the appeal brief. Consequently, the State has not been given an opportunity to rebut appellant’s claim of a violation of the right to counsel. Although appellant did file a motion for new trial, no assertion of a violation of the right to counsel was voiced therein. This Court does know from the docket sheet that the case was passed on September 11 in order to allow appellant to retain counsel, yet we do not know whether proper warnings and admonitions were given to appellant at that time. This Court also knows from the docket sheet that the case was passed for a jury trial on September 25, when appellant was not represented by counsel, yet again we do not know whether proper warnings and admonitions were given on that occasion. We also know that appellant did hire one attorney to represent him at trial, and that he is represented by retained counsel now.
I dissent to reversal of this conviction because the record before us is insufficient to determine the issue. If appellant’s right to counsel has been violated, he can pursue this claim collaterally. In that manner the State would be given an opportunity to challenge the claim and this Court would be presented with a complete record upon which to determine the issue.
In view of the majority’s disposition of this issue on the merits despite the incomplete state of the record, pro se defendants may secure “automatic” reversal by presenting an incomplete record to this Court and claiming a right to counsel violation. The State, on the other hand, would be well-advised, in view of today’s decision, to request inclusion of all proceedings in the record on any appeal from a pro se defendant’s conviction and to secure an agreed *375statement (Art. 40.09(14), V.A.C.C.P.), or bill of exception (Art. 40.09(6), V.A.C.C.P.), to show any admonishments, warnings or waivers occurring at proceedings where no court reporter was present in such a case. Only by such diligence may the State protect itself against being bushwhacked by a pro se defendant’s potential claim for the first time on appeal that no such admonishment, warning or waiver was made.
Appellant’s contention should be overruled on grounds of manipulation of the right to counsel or, alternatively, the issue should not be reached on the merits. For these reasons, I dissent.
DOUGLAS, J., joins in this dissent.