dissenting.
I dissent to the majority’s holding (1) that when a fine only is imposed the defendant has no right to counsel, although the possible punishment could have included up to one year in jail; (2) the implication in the majority opinion that there is not a necessity of a knowing and intelligent waiver of counsel “since there is nothing to indicate that the appellant was too poor to employ counsel”; (3) that the instrument executed by appellant and appearing in the record before us reflects a knowing and intelligent waiver of counsel. This is an appeal from a conviction for theft over $20. V.T.C.A. Penal Code, Sec. 31.03(d)(3). Being a Class A misdemeanor, V.T.C.A. Penal Code, Sec. 12.-21(2), punishment can be up to one year in jail.
It is clearly established that, absent a knowing and intelligent waiver of counsel, no person may be imprisoned for any offense unless he was represented by counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This Court has held that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed.
In Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976), we said:
“It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 520 (1972); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972).”
In Ex parte Olvera, 489 S.W.2d 586 (Tex.Cr.App.1973), we said:
“The Fifth Circuit Court of Appeals in Olvera v. Beto, 429 F.2d 131 (1970), found that
‘. . . adopting the proper perspective for judging the severity of the charge — the maximum penalty which the defendant may receive — it is apparent that all of appellant’s misdemeanor convictions are constitutionally void. In each case the appellant faced a maximum, potential penalty of a $1,000 fine and two years imprisonment.’ (Emphasis supplied.)”
In Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975), cert. denied 424 U.S. 924, 96 S.Ct. 1135, 47 L.Ed.2d 333 (1976), the Fifth Circuit again reiterated the rule that it is the maximum possible punishment, not the sentence received, that determines the right to counsel. The court stated:
“At the time of his misdemeanor conviction in 1964 there is no doubt but that Thomas was entitled to appointed counsel *531if he was unable to afford counsel. Olvera v. Beto, 429 F.2d 131 (5th Cir. 1970); Matthews v. Florida, 422 F.2d 1046 (5th Cir. 1970). The necessity for counsel is judged by the maximum penalty the defendant may receive. Olvera v. Beto, supra. In this respect the cases of this circuit go beyond the Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), which would only require the appointment of counsel when a sentence of imprisonment is imposed. This right to counsel applies retroactively. Berry v. City of Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973); Olvera v. Beto, supra. Here, since Thomas was faced with a possible maximum of two years imprisonment and/or a $1,000 fine, he was entitled to appointed counsel if indigent.”
In the recent decision of Potts v. Estelle, 529 F.2d 450 (5th Cir. 1976), that Court was faced with a case where a number of misdemeanor convictions had been used to impeach the defendant’s credibility at his Texas trial. A number of these convictions obtained without counsel did not result in any actual imprisonment. The Court first recognized that:
“In Argersinger the Supreme Court left open the question of Gideon’s [Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] application to the situation where the maximum possible sentence for a particular offense is imprisonment, but the sentence actually imposed is only a fine or a term of imprisonment that is suspended.”
The Court then noted the rule in Thomas v. Savage, supra, and recognized that there was a conflict in the Circuit since the case of Cottle v. Wainwright, 477 F.2d 269 (5th Cir.) vacated on other grounds, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138 (1973), held that Argersinger applied only where imprisonment had actually been imposed. Cottle was of course consistent with the decisions of this Court in Aldrighetti v. State, 507 S.W.2d 770 (Tex.Cr.App.1974), and Lopez v. State, 507 S.W.2d 776 (Tex.Cr.App.1974), relied on by the majority. The Court then reasoned:
“Confronted with the choice between Cottle and Thomas, we follow the latter. Accord Olvera v. Beto, supra; Matthews v. Florida, 422 F.2d 1046, 1048 (5 Cir.1970); James v. Headley, 410 F.2d 325, 329 (5 Cir.1969). The logic of our choice should be clear. By dint of the serious problems associated with the prosecution of misdemeanors, the great concern in Argersinger was with the salutary contributions to be made through the presence of a lawyer in the courtroom representing the interests of the accused. The issues that arise in misdemeanor prosecutions are often complex and beyond the usual competence of the accused. Whether a sentence of imprisonment is or is not ultimately imposed has little bearing on the complexity of those issues or the ability of the accused to defend himself in the circumstances. Indeed, it may be that the most reliable barometer of the potential problems that can arise in such prosecutions is the maximum penalty the legislature has seen fit to designate for a particular misdemean- or.
“Application of the Cottle rule, which looks to the punishment in fact assessed, can lead to curious practical results. For example, where co-defendants are tried together, the judge or the jury, as the case may be, sometimes imposes different sentences on the different co-defendants. Under the Cottle rule, a situation can arise where a co-defendant who is convicted but has his sentence suspended is not protected by Argersinger, but his co-defendant — convicted of the same crime — is not subject to later impeachment with his conviction because he is the recipient of a jail term. See Aldrighetti v. State, 507 S.W.2d 770, 773-75 (Tex.Cr. App.1974) (Onion, P. J., dissenting). The rule of Thomas avoids the type of situation depicted above and is, we believe, consonant with the concerns expressed by the Supreme Court in Argersinger. For these reasons, we hold that the necessity of counsel in appellant Potts’s prior mis*532demeanor prosecutions is to be judged by the maximum possible sentence he could have received in each of those prosecutions.”
Likewise, Professor Duke, writing in American Criminal Law Review, stated:
“Those who have read Argersinger as approving denial of appointed counsel merely because a jail sentence is not imposed are plainly wrong. Argersinger expressly did not decide the right to counsel where ‘loss of liberty is not involved.’ It should not be construed as if it held the right inapplicable in such a case.” [Footnotes omitted.]
Duke, The Right to Appointed Counsel: Argersinger and Beyond, 112 Am.Crim.L.Rev. 601, 607 (1975); see, e. g., Wood v. Supt. Caroline Corr. Unit, 355 F.Supp. 338 (E.D.Va.1973); Mills v. Municipal Court for San Diego Jud. Dist., 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 288 (1973).
Furthermore, Art. 26.04, V.A.C.C.P., provides in part:
“(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. . ” [Emphasis supplied.]
The majority’s rule requiring the trial court to determine the probable punishment prior to trial is neither fair to the State nor the defendant. The State is automatically barred from seeking jail time as a penalty, although within the proscribed punishment range, unless it has presented sufficient evidence to the court in advance of trial to prompt appointment of counsel. There are, of course, doubtless many classes of misdemeanors for which confinement is virtually never imposed, even for a confirmed repeat offender. These offenses can be isolated by class but this is a determination by offense rather than “case-by-case.”
Where the likelihood of confinement depends on the facts of the offense, the defendant’s record, and other individual criteria, it undermines the prospect of a fair trial to advise the trial judge of adverse evidence in advance of trial, and it places a time-consuming, if not impossible, burden on both the prosecutor and trial judge. Further, considering the volume of cases handled in many misdemeanor courts, the prosecuting attorney will himself know little or nothing about the defendant and his record prior to trial. See, Nutter, The Quality of Justice in Misdemeanor Arraignment Courts, 53 Journal of Criminal Law, Criminology and Police Science 215 (1962).
It is prejudicial to the defendant if the judge determines in advance that confinement is likely upon conviction and therefore appoints counsel, since a subsequent assessment of confinement by the court will appear to have been the product of the pretrial determination, and not the result of the evidence offered at trial. If a judge other than the one who appointed counsel accepts a plea or tries the case, the appointment of counsel by the first judge will appear to be a signal that confinement is appropriate, undermining the objectivity of the second judge. See generally, Duke, supra, at 612.
The judgment and sentence merely recite that the “State of Texas appeared by her Criminal District Attorney” and “Came the Defendant in person.”
The instrument executed by appellant insofar as it relates to waiver of counsel recites:
“Now comes the undersigned defendant in this cause and represents to the Court that he has no attorney, that he does not intend to employ counsel herein and that he waives any right he may have, on application therefor, to have the court appoint an attorney to defend him in this cause.”
There is no mention of a knowing and intelligent waiver of counsel in the judgment and sentence, nor will the instrument set out above support such a finding. When a defendant makes known his desire to represent himself, “he should be made aware of the dangers and disadvantages of self-representation, so that the record will *533establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. See Webb v. State, Tex.Cr.App., 533 S.W.2d 780.
The facts in Hooper v. State, Tex.Cr.App., 557 S.W.2d 122, are similar to those in the instant case except that the defendant therein was assessed a jail term. We find our opinion in Hooper to be dispositive of all questions presented herein aside from the issue of no jail term being assessed in the instant case. In Hooper, we said:
“The record is before us without a transcription of the court reporter’s notes. Although a docket entry in the record reflects that appellant is represented by retained counsel on appeal, no brief was filed in appellant’s behalf pursuant to Art. 40.09(9), V.A.C.C.P. There is no claim of indigency. Nevertheless, we find in the record unassigned error which should be reviewed in the interest of justice under Art. 40.09(13), V.A.C.C.P.
“The judgment and the sentence state that appellant was not represented by counsel at trial [footnote omitted] without a recital that there was a knowing and intelligent waiver of counsel. The Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), after discussing constitutional authorities, stated:
‘We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemean- or, or felony, unless he was represented by counsel at his trial.’ (Emphasis added.)
“In the instant case, there is nothing in the record before us to show a knowing and intelligent waiver by appellant of his right to be represented by counsel at trial (footnote omitted); we cannot presume such waiver from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Consequently, the judgment must be reversed and the cause remanded. Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975).” [Emphasis supplied.]
As in the instant case, the record was before us in Hooper without a transcription of the court reporter’s notes and there was no showing of indigency.1 Unlike Barrow v. State, Tex.Cr.App., 502 S.W.2d 162 (cited by the State), and Brown v. State, Tex.Cr.App., 505 S.W.2d 277, cases where there were no transcriptions of the court reporters’. notes, there is no finding in the judgment and sentence in this cause which will enable us to consider the question of whether we can presume that the court’s findings or orders were supported by evidence. Further, we cannot agree with the position urged in the State’s brief that the burden was upon appellant to perfect a bill of exception or agreed statement of facts when appellant was without the benefit of counsel at trial. We are not here confronted with a situation where the defendant makes a knowing and intelligent waiver of counsel, elects to represent himself, and thereby suffers the burdens and perils of self-representation. See Webb v. State, supra.
The record does not reflect a knowing and intelligent waiver of appellant’s right to counsel, nor can we presume such a waiver from the record before us. Carnley v. Cochran, supra; Hooper v. State, supra; Parker v. State, Tex.Cr.App., 545 S.W.2d 151; Baker v. State, Tex.Cr.App., 519 S.W.2d 648. I cannot agree that the fact that appellant received a fine obviated the necessity of a showing of knowing and intelligent waiver of counsel where the possible punishment could have included up to one year in jail. A procedure whereby the court determines it will not consider the full range of punishment proscribed for an offense prior to trial is foreign to our judicial system.
I dissent.
ONION, P. J., and ROBERTS, J., join this dissent.. In the recent case of Trevino v. State, Tex.Cr.App., 565 S.W.2d 938, we held the fact that absent counsel was retained rather than appointed did not authorize the trial court to proceed in his absence with a hearing on a motion for new trial.