Opinion
No. 10-21-00101-CR
06-29-2022
James Riley SHOOK, Appellant v. The STATE of Texas, Appellee
Stan Schwieger, Law Office of Stan Schwieger, Waco, for Appellant. Kathryn J. Gilliam, Falls County District Attorney, Brandon Keith Dakroub, Falls County Asst. District Attorney, Marlin, for Appellee.
Stan Schwieger, Law Office of Stan Schwieger, Waco, for Appellant.
Kathryn J. Gilliam, Falls County District Attorney, Brandon Keith Dakroub, Falls County Asst. District Attorney, Marlin, for Appellee.
Before Chief Justice Gray, Justice Johnson, and Justice Smith
MATT JOHNSON, Justice
Appellant, James Riley Shook, was found guilty by a jury of assault causing bodily injury. See TEX. PENAL CODE ANN. § 22.01. In his sole issue on appeal, Shook contends that he did not knowingly and voluntarily waive his right to counsel. We affirm.
Background
On September 21, 2020, Shook was indicted for the offense of aggravated assault with a deadly weapon. See id. § 22.02. At his arraignment hearing on September 24, 2020, Shook complained about his court-appointed attorney, who then moved to withdraw. The trial court granted appointed counsel's motion to withdraw, and Shook requested time to retain new counsel, which the trial court granted.
On October 15, 2020, the trial court conducted a "Status of Attorney Hearing," where Shook announced that he had not yet retained an attorney and the trial court offered to again appoint counsel. Shook refused the trial court's offer of a court-appointed attorney, and the trial court reset the case for two weeks. But before concluding the hearing, Shook asked if he could represent himself. The trial court discussed the matter with Shook and then appointed standby counsel.
In his sole issue on appeal, Shook contends that he did not knowingly and voluntarily waive his right to counsel. Specifically, Shook claims that the trial court failed to admonish him fully on a knowing and voluntary waiver of counsel.
Authority
The Sixth Amendment to the Constitution of the United States guarantees that "[in] all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. CONST. amend. VI ; Williams v. State , 252 S.W.3d 353, 355 (Tex. Crim. App. 2008). When a defendant asserts the right to self-representation, the trial judge must inform the defendant of "the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ " Faretta v. California , 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (quoting Adams v. United States , 317 U.S. 269, 279, 63 S. Ct. 236, 241-42, 87 L. Ed. 268 (1942) ).
However, several courts have held that Faretta admonitions are not required when a defendant has access to standby counsel appointed by the trial court. See Walker v. State , 962 S.W.2d 124, 126-27 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) ; Robertson v. State , 934 S.W.2d 861, 864 (Tex. App.--Houston [14th Dist.] 1996, no pet.) ; see also Bradford v. State , No. 05-14-01610-CR, 2016 WL 326631 at *1, 2016 Tex. App. LEXIS 817 at *3 (Tex. App.—Dallas 2016, pet. ref'd) (mem. op., not designated for publication) ; Anderson v. State , No. 2-02-060-CR, 2003 WL 21101519 at *1–2, 2003 Tex. App. LEXIS 4169 at **4-5 (Tex. App.—Fort Worth 2003, pet. ref'd) (mem. op., not designated for publication). A trial court can appoint standby counsel to assist a criminal defendant who represents himself at trial, even over the defendant's objection. McKaskle v. Wiggins , 465 U.S. 168, 184, 104 S. Ct. 944, 954, 79, 79 L.Ed.2d 122 (1984) ; Faretta , 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46 ; Scarbrough v. State , 777 S.W.2d 83,92 (Tex. Crim. App. 1989).
Discussion
Here, the trial court appointed standby counsel for Shook. Because Shook had and utilized standby counsel, we conclude that the trial court was not required to provide Shook with Faretta admonitions. See Walker , 962 S.W.2d at 126-27 ; Robertson , 934 S.W.2d at 864 ; see also Bradford , 2016 WL 326631, at *1, 2016 Tex. App. LEXIS 817, at *3 ; Anderson , 2003 WL 21101519, at *1–2, 2003 Tex. App. LEXIS 4169, at **4-5.
Though the case law indicates that Faretta admonitions are not required when standby counsel is appointed, we believe the better course for any trial judge is to provide Faretta warnings to a defendant in any case where he or she has at any time expressed any desire to engage in self-representation. Giving such warnings, early and often, provides meaningful information to permit a defendant to make rational and well thought-out decisions. Giving them in writing, and asking the defendant to acknowledge receipt of the warnings in writing as well, provides the defendant with even greater understanding of the rights (and perils) of self-representation.
The record shows that a hearing was held on the day before trial and that standby counsel was not present. At this hearing, the trial court inquired about a letter the trial court received from Shook earlier that day because the trial court was concerned about Shook's competency to stand trial. When asked about the letter, Shook explained to the trial court that he did not intend for the letter to infer that he was incompetent; instead, he noted that he was not taking his medication because he did not think it was right. The trial court assured Shook that the Sheriff, who was present in the courtroom, would make sure Shook was given his medication as prescribed.
In addition, the trial court informed Shook that he would need to make an election as to whether the court or the jury would assess punishment, if he were found guilty. The trial court also informed Shook that his election had to be made no later than the morning of trial. At the hearing and upon the request of the trial court, Shook made his election and elected to have a jury assess his punishment.
Before voir dire the next day, Shook decided to have standby counsel represent him, and counsel proceeded to trial without changing Shook's election. After the jury found Shook guilty of the lesser-included offense of assault causing bodily injury, Shook waived his election for the jury to assess punishment and agreed to have the trial court assess his punishment at time served, based on an agreement he made with the State. In accordance with the agreement between Shook and the State, the trial court assessed Shook's punishment at 365 days in the county jail.
To the extent that Shook may have been "deprived" of the assistance of counsel at this hearing, we note that Shook, while represented by counsel, did not change his punishment election on the day of trial. Furthermore, while represented by counsel and after the guilt-innocence phase of trial, Shook waived his jury election for punishment, in accordance with his agreement with the State. As a result of the agreement with the State, Shook received a favorable sentence that resulted in his release from incarceration. Therefore, we conclude beyond a reasonable doubt that Shook was not harmed in any way by the absence of standby counsel at the hearing conducted the day before trial. See TEX. R. APP. P. 44.2(a) ("If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."); Satterwhite v. Texas , 486 U.S. 249, 254, 108 S. Ct. 1792, 1796, 100 L. Ed. 2d 284 (1988) (holding that when the absence of counsel does not pervade the entire proceeding, Sixth Amendment violations are subject to a harmless-error analysis); see also Hanson v. State , 11 S.W.3d 285, 289 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). Moreover, based on the totality of the circumstances, we reject Shook's structural-error contention based on the total deprivation of the right to counsel. See Bell v. Cone , 535 U.S. 685, 695-96, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914 (2002) ; Lake v. State , 532 S.W.3d 408, 414 (Tex. Crim. App. 2017) (noting that to be immune from a harm analysis, the violation of the right to counsel must "pervade the entire proceeding" (quoting Satterwhite , 486 U.S. at 257, 108 S. Ct. at 1797 )); Williams v. State , 252 S.W.3d 353, 357 (Tex. Crim. App. 2008) ("When the right to trial counsel has been violated, prejudice is presumed because the trial has been rendered inherently unfair and unreliable."). We overrule Shook's sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
(Chief Justice Gray dissenting)
DISSENTING OPINION
TOM GRAY, Chief Justice
I tip my hat to Brandon Luce. By almost any standard you choose to measure it, as appellant's trial counsel, he did a fabulous job. Appellant, who was charged with the felony offense of aggravated assault with a deadly weapon (a knife) which was to be enhanced at punishment with another conviction for aggravated assault with a deadly weapon, was convicted of the lesser included offense of assault causing bodily injury and was sentenced to only 365 days in County Jail. He had 239 days of jail time credit. Not a horrible outcome for having been appointed counsel about 15 minutes before the trial started.
Not to mislead the reader, appointed counsel had been appointed as stand-by counsel about 5 months earlier. Although documentation in the clerk's record says he was appointed, the reporter's record clearly limits his role to that of stand-by counsel only. As stand-by counsel, he was not in charge of preparing the defense; rather, he was only to consult with appellant when appellant asked for some guidance or assistance. The record does not indicate if that ever happened before trial started. As stand-by counsel, he had no duty to investigate the facts, research the law, evaluate various trial strategies, make recommendations to his client, or zealously represent his client in all phases of pre-trial.
The issue as framed by appellant on appeal is whether he knowingly and intelligently waived his right to counsel. The State, and the Court, seems to vacillate between whether appellant received adequate admonishments from the trial court, in essence, adequate Faretta warnings, of the dangers and disadvantages of self-representation such that he could make a knowing and intelligent invocation of this right to self-representation, or whether such warnings, were required at all for a defendant when "stand-by" counsel has been appointed. See Faretta v. California , 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Both the State and the Court also proceed to conduct a harm analysis in the event that the deprivation of counsel was error, which centers mostly on whether the deprivation was at a critical stage of the proceeding.
There is some question of whether he even intended to invoke his right to self-representation. The colloquy started with the question: "Why can't I represent myself?"
Although there is no litany for the trial court to use, "no formulaic questioning," Johnson v. State , 760 S.W.2d 277, 278 (Tex. Crim. App. 1988) (quoting Blankenship v. State , 673 S.W.2d 578, 583 (Tex. Crim. App. 1984) ), the record must be sufficient for the reviewing court to make an assessment that appellant knowingly exercised his right to waive his right to counsel and to personally defend himself. Id. at 279. Admonishments should include an effort to ensure that the defendant is aware of the practical disadvantages of representing himself. Id. The defendant should be aware that there are technical rules of evidence and procedure and that he will not be granted any special consideration solely because he asserted his pro se rights. Id. The admonishments here were little more than general sayings and discouragement in recognition that it is not wise to represent yourself. There were no real warnings as contemplated by Faretta and its progeny about the real and substantial dangers and disadvantages of self-representation. Indeed, the colloquy between appellant and the trial court indicates that appellant had a complete misapprehension about even what stand-by counsel would be doing. This is evident by appellant's suggestion, to which the trial court acceded, that stand-by counsel would be like co-counsel. Nothing could be further from reality. Unlike states which allow hybrid representation where a defendant and counsel both actively participate in the trial, there is no absolute right to hybrid representation in criminal proceedings in Texas. Scarbrough v. State , 777 S.W.2d 83, 92 (Tex. Crim. App. 1989). More importantly, stand-by counsel is not even allowed to actively participate in the trial process. Active and overt participation of stand-by counsel infringes upon Faretta ’s guarantee of self-representation when it interferes with the accused's actual control over his own defense or undermines his appearance before the jury in the status of a pro se defendant. See id. ; see also McKaskle v. Wiggins , 465 U.S. 168, 177, 104 S. Ct. 944, 950, 79 L.Ed.2d 122 (1984) ("the Faretta right must impose some limits on the extent of standby counsel's unsolicited participation.").
Thus, I must disagree in the strongest way with those courts, and now my colleagues on this Court, who hold or suggest that if stand-by counsel is appointed, there is no need to admonish the defendant of the dangers and disadvantages of self-representation. See Walker v. State , 962 S.W.2d 124, 126-27 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) ; Robertson v. State , 934 S.W.2d 861, 864 (Tex. App.—Houston [14th Dist.] 1996, no pet.). See also King v. State , No. 05-18-01116-CR, 2020 WL 1452046, at *2, 2020 Tex. App. LEXIS 2493, at *5–6 (Tex. App.—Dallas Mar. 25, 2020, pet. ref'd) (mem. op., not designated for publication) ; Bradford v. State , No. 05-14-01610-CR, 2016 WL 326631 at *2–3, 2016 Tex. App. LEXIS 817 at *7 (Tex. App.—Dallas Jan. 27, 2016, pet. ref'd) (mem. op., not designated for publication) (same); Griffis v. State , 441 S.W.3d 599, 610 (Tex. App.—San Antonio 2014, pet. ref'd).
Even if giving no warnings is constitutionally adequate in states that allow hybrid representation and appoint counsel, it is not constitutionally adequate in Texas as applied to the appointment of stand-by counsel. I would reject the rationale of these cases and align myself with the Beaumont Court of Appeals and hold that in no way does the appointment of stand-by counsel relieve a trial court of the duty to fully admonish the defendant of the dangers and disadvantages of self-representation. Grant v. State , 255 S.W.3d 642, 647 (Tex. App.—Beaumont 2007, no pet.). The role and responsibilities of stand-by counsel as compared to co-counsel, as noted above, are substantially different. And as the Court of Criminal Appeals has stated:
[w]hen a defendant asserts his pro se rights, analysis must center not on a traditional waiver of counsel analysis, but on whether the defendant is aware of the dangers and disadvantages of self-representation. Thus the focus of a trial court's admonishments of a defendant wishing to proceed pro se is on the knowing and intelligent assertion of the right to self-representation. Such is the focus because the right to selfrepresentation does not arise from the accused's power to waive the assistance of counsel but independently from the Sixth Amendment grant to the accused personally the right to defend.
Johnson v. State , 760 S.W.2d 277, 278 (Tex. Crim. App. 1988) (distinguishing Maddox v. State , 613 S.W.2d 275, 286 (Tex. Crim. App. 1981) (op. on rh'g) which relied entirely on Phillips v. State , 604 S.W.2d 904, 908 (Tex. Crim. App. 1980) wherein the Court stated "appellant partially represented himself in this case, [but] he was also fully represented by counsel. Thus, no question of waiver of counsel is involved.")
Moreover, in this case, in the critical pre-trial stage when investigation, research, evaluation, and recommendations are normally being made by appointed counsel, this appellant had none of that. It was during this time period that he stopped taking his medication while in jail prior to trial because he was concerned that it was not the correct medication being given to him by the sheriff. He expressed this concern in a letter to the trial court. The trial court was rightly concerned about appellant's competency. At the competency hearing held the day before trial, without stand-by counsel being present, appellant declared himself competent and he was asked and entered his sentencing election. The trial then proceeded the next day as scheduled.
On this record, I cannot find an adequate admonishment under the precedential holdings of the United States Supreme Court and the Court of Criminal Appeals, and absent adequate admonishments, there can be no knowing and intelligent waiver of the right to counsel during this critical stage of the proceeding (pretrial development of the case). The fact that counsel was appointed to represent appellant on the day trial started and that due to counsel's skill and experience he was able to secure what appears to be a very favorable outcome, does not mitigate the constitutional depravation of counsel nor does it open this type error to a harmless error analysis. With no time to prepare, appointed counsel obtained an incredible result by limiting a felony charge with a deadly weapon finding to only a misdemeanor conviction. Just think of what appointed counsel could have done if he had been appointed 15 days before trial rather than 15 minutes.
I would reverse the trial court's judgment and remand this proceeding to the trial court for a new trial. Because the Court affirms the appellant's conviction, I respectfully dissent.