(dissenting) — Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), is not controlling in this case. Under Faretta, the trial court must give the defendant the opportunity to represent himself when he so requests. In that case, Mr. Faretta made his request 3 weeks before trial. Here, there was no request before or at trial. Faretta does not impose an affirmative duty upon the trial judge to advise a defendant of his right to represent himself unless the defendant first indicates that he desires to proceed pro se.
The majority opinion focuses on the following colloquy:
Mr. Garcia: ... I don't want this attorney to be there representing me because I don't believe that he has counseled me right and I know that I don't have no money to pay for a lawyer, but maybe my folks would be able to afford one for me. They live in Texas. I'd have to get in contact with them and see if they could.
The Court: No.
Mr. Garcia: But in that case I do not wish to have this attorney with me because I believe that he hasn’t been representing me right and I believe I haven't been represented.
The majority believes that the italicized statement indicates that Mr. Garcia wanted to represent himself. I respectfully disagree. The thrust of all the colloquy contained in the majority opinion is Mr. Garcia's concern that he be given new counsel; at no time did he express a desire to appear as his own attorney.
The only reference to the right of a defendant to proceed without counsel was by Mr. Gano, court appointed counsel, when he referred to Faretta v. California, supra. Mr. Gano made this reference in the presence of Mr. Garcia. Notwithstanding, Mr. Garcia gave no indication that he wanted to proceed pro se. He just wanted another lawyer. Now, for the first time on appeal, he argues through different counsel that he was denied his constitutional right to represent himself. He does not claim that he was inadequately represented. In fact, the record reveals that Mr. Gano competently performed his function as defense counsel. In my *68opinion, Faretta does not require a trial court to advise a defendant that he may proceed pro se in the circumstances of this case.
Consequently, I respectfully dissent.
Reconsideration denied August 29, 1978.
Review granted by Supreme Court January 19, 1979.