Robinson v. State

Full title: DAYRIN LEMOND ROBINSON, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 19, 2005

No. 05-04-00235-CR (Tex. App. Jul. 19, 2005)

Opinion

No. 05-04-00235-CR

Opinion Filed July 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-71644-JT. Affirm.

Before Justices WHITTINGTON, FITZGERALD, and RICHTER.

OPINION

RICHTER, Justice.

Dayrin Lemond Robinson appeals his forty-year sentence for the aggravated robbery of a grocery store employee. In a single issue, Robinson asserts the trial judge violated his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution by allowing him to represent himself at punishment without being properly admonished of the dangers and disadvantages of self-representation. Finding no error, we affirm.

Background

The record reflects Robinson was represented by appointed counsel at trial. Following the State's direct examination of its second punishment witness, the trial judge conducted a hearing outside the jury's presence because Robinson "wanted to speak to the judge." Robinson was unhappy with counsel for several reasons and wished to "intelligent[ly] . . . waive [his] right to counsel." The trial judge attempted to respond to each of Robinson's complaints about his counsel, but Robinson repeatedly interrupted and interjected new complaints unrelated to his counsel. After several minutes, Robinson's counsel stated to the court that he was going to ask Robinson to "take a deep breath and go back in the holdover for a minute and not say anymore," but Robinson responded that he did not know why counsel was speaking because he had "waived [his] right to counsel." Robinson then resumed his complaints. After a few more minutes, the judge managed to ask Robinson whether he wished to continue with counsel. Robinson replied "no," that his counsel "could go" because he was "through" with counsel and counsel was "through" with him. The following then occurred

[JUDGE]: [Counsel] has got to remain here in court as advice of counsel.

[ROBINSON]: Okay. Well, I appreciate that. If he can give me some advice, I like that.

[JUDGE]: I highly recommend that you not represent yourself.

[ROBINSON]: I understand that, Your Honor, but I think that we're going to do it like that . . .

[JUDGE]: Mr. Robinson, if you wish to do this — [ROBINSON]: My client is, Your Honor, let's do it. [JUDGE]: Mr. Robinson? [ROBINSON]: Let's do it.

[JUDGE]: Mr. Robinson. Look at me. I will make sure that the procedures are followed as best I can —

[ROBINSON]: Your honor, the Code of Criminal Procedure is out of tack [sic] already . . .

[JUDGE]: Okay. Mr. Robinson, if you wish to represent yourself —

[ROBINSON]: I wish to represent [myself]. How many times have I said that, Your Honor?

[JUDGE]: I'm trying to help you.

[ROBINSON]: Your Honor, if we was [sic] going to get some help, if I was going to get some help, I wouldn't have been in this trial . . .

* * *

[JUDGE]: Now, Mr. Robinson, I think it's quite clear to the Court that you wish to represent yourself —

[ROBINSON]: Yes, your Honor.

[JUDGE]: — and [counsel] will remain as counsel for any legal questioning you may have. Now —

The judge then answered a procedural question Robinson had and explained to him the "rules" of witness-examination. Following that discussion, Robinson "assumed control" of his case, cross-examining the State's punishment witnesses, calling his mother to testify in his defense, and presenting closing argument. Throughout this time, however, "standby" counsel interjected objections, moved to have the testimony of one of the witnesses limited to certain facts, participated in the charge conference, and entered into an agreement with the prosecutor concerning the jury, all on Robinson's behalf.

Discussion

The Sixth and Fourteenth Amendments of the United States Constitution guarantee an accused in a criminal prosecution the right to the assistance of counsel. Faretta v. California, 422 U.S. 806, 807 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex.Crim.App. 2002). These amendments also guarantee an accused the right to waive counsel and conduct his own defense. Faretta, 422 U.S. at 834; Hatten, 71 S.W.3d at 333. Before a judge may allow an accused to proceed pro se, however, the judge must admonish the accused on the record of the dangers and disadvantages of self-representation. Faretta, 422 U.S. at 835; Hatten, 71 S.W.3d at 334. This is to ensure that the accused "knows what he is doing and his choice is made with eyes open," because in contrast to an accused represented by counsel, an accused proceeding pro se will control the organization and content of his own defense, make motions and objections, argue points of law, and participate in all phases of trial including questioning the witnesses and arguing to the jury. Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942); Robertson v. State, 934 S.W.2d 861, 863-64 (Tex.App.-Houston [14^th Dist.] 1996, no pet.). A judge need not admonish an accused of the dangers and disadvantages of self-representation, however, when, in response to the accused's request to proceed pro se, he allows hybrid representation; that is, he allows the accused to present his own defense but also allows counsel to participate in the proceedings. Clark v. State, 717 S.W.2d 910, 918 (Tex.Crim.App. 1986); Maddox v. State, 613 S.W.2d 275, 286 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g). A judge need not even admonish an accused of the dangers and disadvantages of self-representation when he allows the accused to present his own defense but at the same time appoints standby counsel to advise the accused as necessary. See Walker v. State, 962 S.W.2d 124, 126-27 (Tex.App.-Houston [1^st Dist.] 1997, pet. ref'd); Robertson, 934 S.W.2d at 865-66. In cases where hybrid representation is allowed or standby counsel is appointed," no question of waiver of counsel is involved," since counsel remains to assist the accused, and thus no need to admonish the accused of the dangers and disadvantages of self-representation exists. See Maddox, 613 S.W.2d at 286; Robertson, 934 S.W.2d at 865. Here, although the record reflects the judge "highly recommended" to Robinson that he not represent himself, nothing in the record shows the judge admonished him of the actual dangers and disadvantages of proceeding pro se. However, as the State argues, although Robinson was allowed to present his defense, the trial judge kept appointed counsel as "standby" counsel and allowed counsel to actively participate during the proceedings, in effect, allowing hybrid representation. Because the judge allowed hybrid representation, we conclude no issue of waiver of counsel actually arose. See Maddox, 613 S.W.2d at 286. As such, the judge was not required to admonish Robinson of the dangers and disadvantages of self-representation. Clark, 717 S.W.2d at 918; Maddox, 613 S.W.2d at 286. We resolve Robinson's sole issue against him. We affirm the trial court's judgment.