concurring and dissenting.
I concur in the majority opinion as to the first five points of error asserted by relator; however, I dissent as to point six.
The majority conclude that “relator has not pleaded lack of waiver of counsel in either his application or amended application for writ of habeas corpus.” I respectfully disagree. Citing Ex parte Martinez 775 S.W.2d 455 (Tex.App. — Dallas 1989, orig. proceeding), relator states in his amended application, in pertinent part, “However, the trial court, in its order failed to establish that Relator had a right to counsel, thereby depriving him of his Constitutional right” (emphasis added). I conclude that relator is basing his writ, at least in part, on having been denied the right to counsel. Although the record before us does not contain a statement of facts, it does contain a copy of relator’s request for court-appointed defense dated June 26, 1989, and filed of record with the trial court on June 27, 1989. The hearing date was July 5, 1989, and the contempt order was signed on that date. It is noted that when the constitution grants protection against criminal proceedings without the assistance of counsel, counsel must be furnished “whether or not the accused requested the appointment of counsel.” See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962).1
In the absence of a recital in the order reflecting the presence of an attorney, a presumption exists that an offer to appoint counsel was not made. Citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, the Criminal Court of Appeals of Oklahoma stated, “The presumption, where the record is silent, is that the offer to appoint counsel was. not made.” Ex parte Meadows, 70 Okl.Cr. 304, 106 P.2d *762139, 147 (1940). Moreover, in Carnley, the Supreme Court stated:
Or, it may have meant that it would assume simply that petitioner knew of his right to counsel and was willing to forego it. Of course, the validity of such presumptions is immediately called in question because the accused has no way of protecting against them during his trial except by requesting counsel — a formality upon which we have just said his right may not be made to depend. Nor is it an answer to say that he may counter such presumptions on collateral attack by showing — if he can — that he had not in fact agreed, or been willing, to be tried without counsel. To cast such a burden on the accused is wholly at war with the standard of proof of waiver of the right to counsel which we laid down in Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019 [1023-1024] 82 L.Ed. 1461.
Carnley, 82 S.Ct. at 889. For the foregoing reasons, I join the dissent in holding that the order of contempt is void. Consequently, I would sustain relator’s sixth point of error, grant the writ of habeas corpus and discharge relator from custody.
ROWE, J., concurs in this opinion.
HOWELL and McCLUNG, JJ., concur only in the dissent portion of this opinion.
. The majority does not dispute that relator was entitled to federal constitutional protections as well as the statutory protections of Tex.Fam.Code Ann. § 14.32(f) (Vernon 1990); they simply dispute that the contempt order must facially reflect the presence of an attorney or the knowing and intelligent waiver thereof.