KENNETH DEWAYNE HALL v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

In March 2008, Kenneth Dewayne Hall was indicted for engaging in organized criminal activity and aggravated robbery with a deadly weapon. As part of a plea bargain agreement, Hall pled guilty to aggravated robbery with a deadly weapon, the State dropped the remaining charge, and Hall was placed on ten years' deferred adjudication community supervision. Through several amended motions, the State moved to proceed with an adjudication of guilt, alleging that Hall had violated various terms of his community supervision. Hall entered a plea of not true to each of the allegations. At the conclusion of the adjudication hearing, the trial court found that Hall had violated the conditions of his community supervision, found him guilty of the underlying offense of aggravated robbery with a deadly weapon, and sentenced him to forty years in prison.

On appeal, Hall contends that the trial court erred by not allowing him to represent himself and by not properly admonishing him regarding self-representation.

We overrule this point of error and affirm the trial court's judgment because Hall failed to assert his right to self-representation.

I. Did Hall Assert his Right to Represent Himself?

In his sole point of error, Hall argues that the trial court erred by not allowing him to represent himself and by not properly admonishing him regarding his right to self-representation.

A. Standard of Review

The Sixth Amendment to the United States Constitution guarantees the right of a defendant to present his or her legal defense through trial without the aid of counsel. Faretta v. California, 422 U.S. 806, 818–20 (1975); Williams. v. State, 252 S.W.3d 353, 355 (Tex. Crim. App. 2008). Denial of the right to self-representation results in “structural error” and is not subject to a harm analysis. Ex parte Fierro, 934 S.W.2d 370, 372 (Tex. Crim. App. 1996); Garrett v. State, 998 S.W.2d 307, 316–17 (Tex. App.—Texarkana 1999, pet. ref'd); see McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). The right to self-representation does not attach until it is clearly and unequivocally invoked by the defendant.¹ Faretta, 422 U.S. at 835; Williams, 252 S.W.3d at 356. When a defendant asserts the right to represent himself or herself, the trial court must admonish the defendant about 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 his eyes open.’ ” Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel McCann, 317 U.S. 269, 279 (1942)); see TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (West Supp. 2016).

B. Factual Background

Despite having appointed counsel, Hall personally objected, made comments, and asked questions during the adjudication hearing. Hall's first outburst occurred during the State's direct examination of its first witness, Luke Lattrell, Hall's community supervision officer:

Q. [By the State] Okay. Did you ever hear from [Hall] at all from the time you saw him in November--

During the testimony of the State's third witness, Larry Masters, an officer with the Choctaw Nation Tribal Police, the following exchange occurred:

Q. [By the State] Just kind of summarize what happened.

A. There was a young man -- there was a woman playing a machine, gambling. She had a purse on her left shoulder. There was a young man that was walking around watching her as she was playing. The young man grabs the purse, rips her down, runs off out an exit of a motel room, jumps into a car.

(Recess taken).

․

The Court has great leeway in some of the ways I can keep outbursts from happening. I don't want to do that.

The remainder of the adjudication proceedings were held outside Hall's presence.

C. Analysis

Hall's comments show that he was unhappy with how his attorney was representing him. However, a defendant who is displeased with appointed counsel must either accept the assigned attorney, effectively waive the right to counsel in order to represent himself or herself, or show adequate cause for a change of appointed counsel. Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Cain v. State, 976 S.W.2d 228, 235 (Tex. App.—San Antonio 1998, no pet.). Hall said that the proceedings were unfair and that he would continue “blurting out” as long as his counsel was not speaking up for him, but that did not amount to a clear and unequivocal request to represent himself.² See Faretta, 422 U.S. at 835. Therefore, Hall's right to self-representation and the trial court's duty to admonish him did not attach. See id. Accordingly, we overrule this point of error.

II. Conclusion

For the reasons stated above, we find that Hall did not make a clear and unequivocal request to represent himself. Accordingly, his right to self-representation was not violated, and we affirm the trial court's judgment.³

FOOTNOTES

1.   “Unlike the right to counsel, the right of self-representation can be waived by a defendant's mere failure to assert it.” Brown v. Wainwright, 665 F.2d 607, 610–11 (5th Cir.1982).

2.   Hall argues that his actions “impliedly or constructively” invoked his right to self-representation.

3.   The State raised a point of error on cross-appeal, arguing that the trial court was within its discretion to revoke Hall's community supervision and adjudicate him guilty. However, we need not address this point because Hall failed to challenge the merits of the trial court's order of adjudication.

Ralph K. Burgess Justice