JAMES TRAVIS HENDERSON v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Myers

Appellant, James Travis Henderson, was convicted of driving while intoxicated and sentenced by a jury to 180 days in jail and a $2,000 fine.   In only one issue, appellant argues that his decision to waive his right to counsel and represent himself at trial was not voluntary.   We affirm.   Background and Procedural History

Appellant initially appeared to respond to the instant driving while intoxicated charges with the aid of retained counsel.   Shortly before trial, however, counsel filed a motion asking for leave to withdraw from the case, citing appellant's inability to pay legal fees because of appellant's unemployment.   The motion indicated that appellant was asking counsel to withdraw from the case “so that he may request a court appointed attorney to represent him.”   Appellant verified the motion with an affidavit attesting that he had lost his job and could no longer pay his attorney's fees, and that he would either like to either represent himself or obtain appointed counsel.   On November 9, 2009, which was the original trial setting, the trial court granted the motion to withdraw and reset the case to allow appellant thirty days to find a new attorney or ask to have one appointed.

On December 14, 2009, appellant arrived for a pretrial hearing without a new attorney, nor had appellant applied for appointed counsel.   Appellant completed an affidavit of indigence later that day, but he did not qualify as indigent because of, according to the court, his status as a truck driver and his previous employment.   The court also noted that both the trial court and a county employee had reviewed the application and agreed appellant did not qualify as indigent under the financial guidelines followed by the court.   The court told appellant that it was going to double appellant's bond to $10,000 and remand him to custody, after which it would appoint counsel, when appellant asked, “I don't understand what's going on now.   So now I go back to jail?”   The record then reads in part as follows:

THE COURT:  You've got to go back to jail.   And if you hire Mr. Stith, then I will reinstate your bond.   And Mr. Stith will remain as your attorney.   If you-if you remain in jail, then Mr. Stith will be your court-appointed lawyer.   You're going to have an attorney from this point forward.

THE DEFENDANT:  I've got a question to ask.   Why am I going to jail?

THE COURT:  I'm declaring your bond insufficient.   You didn't show up today with an attorney.   I told you to.

THE DEFENDANT:  I mean, what we had established the last time I was here, you gave me two options.

THE COURT:  I just reviewed them for you.

THE DEFENDANT:  Or I could represent myself.

THE COURT:  Well, you could represent yourself, I suppose.   But you've got-you wanted a court-appointed lawyer.   Do you want a court-appointed lawyer?

THE DEFENDANT:  To keep from jail, I will represent myself cause I don't have the money.

Appellant told the court that he did not want to go to jail, but he was prepared to represent himself because “if I get locked up, I'm not able to work or try to help financially with my family.”   Appellant and the court discussed the fact that appellant had been temporarily laid off from his job and was receiving 173 dollars per week of unemployment compensation after deductions for child support.   The court told appellant that he did not qualify as indigent, but if appellant was in jail the court could appoint a lawyer to represent appellant because he would be indigent.   Appellant asked, “So the other option I've got is to represent myself?”   The court replied, “Well, only if I say that you can․”  The court told appellant that he thought appellant would be “making a big mistake by representing himself.”   Appellant said that he could not afford to hire an attorney but he did not want to go to jail because he could not support his family or pay child support.   The court asked appellant if there was any way he could raise money to hire an attorney, and appellant replied, “Just to keep working when I can.”   The court also told appellant that if he was incarcerated, the time served would “go toward[s] any jail time that you might have to serve in the future,” and that a court-appointed attorney could “get your case ready” and possibly negotiate “a deal where [you] could plead time served.”   Appellant told the court, “I'm going to represent myself, sir.”

Before continuing, the court asked appellant to review an advisory form that explained the dangers and disadvantages of self-representation.   The court then admonished appellant in part as follows:

THE COURT:  Mr. Henderson, you're saying that you don't want a lawyer, and I have advised you of your rights to representation by counsel.   In fact, I had Mr. Stith here and was going to appoint him to represent you, but you declined that, correct?

THE DEFENDANT:  Yes, sir.

THE COURT:  And you've also tried to hire an attorney.   And, in fact, did hire an attorney and he's withdrawn from it with your permission, correct?

THE DEFENDANT:  Yes, sir.

THE COURT:  And you know that if you're unable to afford counsel, you can apply for the court-appointed attorney, which you've already done, but that you're not indigent.

And I told you that, you know, since you weren't indigent, I'm not inclined.   If you're indigent, then I do appoint lawyers to represent indigent people.   But after having filled out the affidavit and after I screened it and also another county employee who does that has screened it, I'm in agreement with this that you're not indigent.

And so-and that you're going to represent yourself;  is that correct?

THE DEFENDANT:  Yes, sir.

After establishing that appellant had read and understood the form explaining the “Dangers and Disadvantages of Self Representation,” and that appellant was a high school graduate who had the ability to “read all the papers” himself, the court found that appellant had sufficient ability to represent himself and set the case for trial.

Appellant represented himself at trial.   The jury convicted appellant and sentenced him to 180 days in jail and a fine of $2,000.   This appeal followed.

Discussion

In his only issue, appellant argues that his decision to represent himself at trial was not voluntary because the trial court told him that, in order to obtain a court-appointed attorney, the court would have to double his bond and place him in custody, after which counsel could be appointed.

Appellant does not ask us to review the trial court's determination that he was not indigent, and therefore not entitled to appointed counsel, so the question before us is whether appellant's decision to represent himself was not voluntary.   Federal and state law guarantee a criminal defendant the right to the assistance of counsel, as well as the right to waive counsel and represent himself.   See U.S. Const. amend.   VI & XIV;  see Tex.Code Crim. Proc. Ann. art. 1.05 (West 2005);  Faretta v. California, 422 U.S. 806, 807, 818-20 (1975);  Hatten v. State, 71 S.W.3d 332, 333 (Tex.Crim.App.2002).   A defendant should be warned of the dangers and disadvantages accompanying the waiver of the right to counsel and decision to self-represent.  Faretta, 422 U.S. at 835;  Hatten, 71 S.W.3d at 333.   To be constitutionally effective, such a decision must be made competently, voluntarily, knowingly, and intelligently.  Godinez v. Moran, 509 U.S. 389, 400-01 (1993);  Faretta, 422 U.S. at 834-36;  Collier v. State, 959 S.W.2d 621 625 (Tex.Crim.App.1997).   The decision is made voluntarily if it is uncoerced.   Collier, 959 S.W.2d at 626.   The decision is made knowingly and intelligently if made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation.  Id.

The record shows that appellant signed a two-page document titled, Dangers And Disadvantages of Self-Representation.   The document advised appellant that the judge and prosecutor are not his lawyers and may not offer him legal advice.   The document advised appellant of his right to a jury trial and right to an attorney's advice regarding whether to waive a jury trial.   The document informed appellant of the benefits of counsel's evaluation of:  (1) the charge against appellant;  (2) the strengths and weaknesses of the State's case, appellant's evidence, and legal defenses;  and (3) the advantages or consequences of a plea.   The document further described how appellant's lack of knowledge of the rules of evidence and procedure could cause problems in admitting evidence or excluding unfavorable evidence.   The document also stated that appellant could hire his own attorney or, if appellant was indigent, the trial court could appoint counsel.   After the admonishments, the document set out a statement substantially similar to the waiver of counsel form found in the code of criminal procedure.   See Tex.Code Crim. Proc. Ann. art. 1.051(g) (West 2005).   The document then propounded questions to appellant regarding his age, education, and whether he had read all of the document himself.   Appellant wrote that he was forty-two years old and had a twelfth-grade level education.   Appellant affirmed that he had read the document himself.

Before appellant signed the document, the trial court inquired whether he understood the dangers and disadvantages of self-representation.   Appellant affirmed that he understood the dangers and disadvantages, and he had read and understood everything in the document.   The trial court also told appellant, slightly earlier in the proceedings, “[Y]ou're making a big mistake by representing yourself.”   Appellant demonstrated a reasonable level of intelligence and understanding throughout the proceeding.

Appellant argues that he was faced with the “Hobbesian choice of representing himself or being incarcerated and receiving court appointed counsel.”   But the record shows that appellant was presented with several choices, i.e., hiring outside counsel, being incarcerated in order to qualify as indigent under the financial guidelines followed by the court, or representing himself.   The record does not show appellant was threatened with incarceration solely because he requested the assistance of counsel.   See Tex.Crim. Proc.Code Ann. art. 26.04(r) (West 2003) (court may not threaten to arrest or incarcerate a person solely because the person requests assistance of counsel).   Moreover, appellant does not ask us to review the trial court's determination that he was not entitled to a court-appointed attorney because he was not indigent, so our review here is limited to determining whether appellant's decision to represent himself was made competently, voluntarily, knowingly, and intelligently.   On this record, given the oral admonishments and the written waiver, we cannot conclude that the trial court insufficiently admonished appellant of the dangers and disadvantages of self-representation.   See Faretta, 422 U.S. at 835-36;  Collier, 959 S.W.2d at 626.   Accordingly, we overrule appellant's point of error.¹

The judgment of the trial court is affirmed.

FOOTNOTES

FN1. Our conclusion that appellant was sufficiently advised of the dangers and disadvantages of self-representation should not be construed as approval of the trial court's determination-unchallenged on appeal-that appellant was not indigent, or the court's colloquy with appellant regarding incarceration and eligibility for court-appointed counsel..  FN1. Our conclusion that appellant was sufficiently advised of the dangers and disadvantages of self-representation should not be construed as approval of the trial court's determination-unchallenged on appeal-that appellant was not indigent, or the court's colloquy with appellant regarding incarceration and eligibility for court-appointed counsel.

LANA MYERS JUSTICE