                                MEMORANDUM OPINION
                                        No. 04-07-00474-CR

                                      Viatric A. HINOJOSA,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                          From the County Court, Jim Wells County, Texas
                                      Trial Court No. 39,420
                            Honorable L. Arnoldo Saenz, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 6, 2008

REVERSED AND REMANDED

           Appellant Viatric Hinojosa was found guilty by the trial court of enticing a child and

assessed punishment at 180 days confinement in the county jail, suspended and probated for a

term of eighteen months. On appeal, Hinojosa argues the trial denied her right to counsel and the

evidence was legally and factually insufficient to support the conviction. The parties both

concede that the record does not substantiate the trial court’s compliance with the necessary

requirements set forth in Faretta v. California, 422 U.S. 806 (1975), but differ as to the remedy.
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We reverse the judgment of the trial court and remand this matter to the trial court for further

proceedings consistent with this opinion.

                                    FACTUAL BACKGROUND

       Hinojosa’s case was called to trial on April 17, 2007, and Hinojosa represented herself at

the bench trial. After some confusion as to whether Hinojosa’s case was set for trial, Hinojosa

complained that her witness, a police officer with the Alice Police Department, was not present.

The trial court informed Hinojosa that it was too late to begin issuing subpoenas and instructed

the State to present their case.   The record does not contain any waivers by Hinojosa or

admonishments given by the trial court.

       The State first called Alice Police Officer Tony Aguilar who testified that in October of

2006, he was involved in an incident where a mother was seeking the return of her juvenile

daughter. Another officer, no longer with the Alice Police Department, prepared a report of the

incident. Aguilar was allowed to read the entire report into evidence without objection. The

report indicated that J.V., the child’s mother, did not approve of her daughter, A.Z., hanging

around with Hinojosa and her daughter because the family was “gay lesbian.” Aguilar further

testified that J.V. was asked to provide an affidavit in which she “made it clear . . . that her

daughter was staying someplace else against her wishes.” Shortly before the State passed the

witness, the prosecutor informed the court:

       And, Your Honor, if I may interrupt just a moment, we have to basically read the
       Information out loud to the Defendant. I’m not sure she is aware, even though it
       has been on file with the Court, if you want to take this opportunity to read what
       the Information or Complaint was to the Defendant.

The trial court complied; however, Hinojosa was never asked to enter a plea to the charges and

never informed of the possible range of punishment. To the contrary, the State simply asked

Aguilar if the Information alleged the correct penal code violation. During cross-examination by



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Hinojosa, Aguilar admitted that he never investigated the charges beyond taking J.V.’s

statement.

         Willie Ruiz, the assistant principal at Alice High School, testified that, during the 2006-

2007 school year, A.Z. had a total of fifty-two absences and J.V. had expressed concern and

acknowledged that A.Z. was not living at home. J.V. testified that she and A.Z. fought over

whether A.Z. could attend a concert with Hinojosa and her daughter, and shortly thereafter, A.Z.

left home. A.Z. did not come home after the concert, but the following day, A.Z., Hinojosa and

two Alice police officers came to the house to pick up A.Z.’s clothes and personal belongings.

When J.V. complained, the officers told her that there was nothing they could do because A.Z.

was seventeen years old. J.V. subsequently filed a complaint against Hinojosa with the Alice

Police Department complaining that A.Z. was under the age of eighteen and that she had not

given A.Z. permission to stay with Hinojosa. During cross-examination, J.V. acknowledged that

A.Z. was only in Hinojosa’s custody for a period of five days at which point A.Z. moved in with

her godmother and then a different family. Hinojosa was convicted of the offense of enticing a

minor.

                                       LEGAL SUFFICIENCY

         Because legal sufficiency is a dispositive issue requiring acquittal, we first turn to

Hinojosa’s challenge that the evidence is legally insufficient to support her conviction.

         A.     Standard of Review

         In a legal sufficiency review, we examine the evidence in the light most favorable to the

verdict, and ask whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v.

State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The standard of review is the same whether




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the evidence is direct, circumstantial, or both. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.

Crim. App. 1999).

B.       Enticing a Child – Texas Penal Code Section 25.04

         A person commits the offense of enticing a child “if, with the intent to interfere with the

lawful custody of a child younger than 18 years, he knowingly entices, persuades, or takes the

child from the custody of the parent or guardian or person standing in the stead of the parent or

guardian of such child.” TEX. PENAL CODE ANN. § 25.04 (a) (Vernon 2003). In the absence of

evidence that the defendant intended to commit a felony against the child, the offense is a Class

B Misdemeanor. Id. at § 25.04(b). An individual found guilty of a Class B Misdemeanor shall

be punished by “(1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed

180 days; or (3) both such fine and confinement.” TEX. PENAL CODE ANN. § 12.22 (Vernon

2003).

C.       Analysis

         The evidence clearly supports that A.Z. was only seventeen at the time of the incident.

J.V. made it very clear to Hinojosa, the Alice Police Department and anyone who would listen

that she wanted A.Z. returned to her custody. Additionally, because Hinojosa went to J.V.’s

house, accompanied by two police officers, the trial court could have reasonably inferred that she

was taking A.Z. from the custody of J.V., without J.V.’s consent. See TEX. PENAL CODE ANN.

§ 25.04 (a) (Vernon 2003). Accordingly, we hold that the evidence is legally sufficient to sustain

the conviction.

                                     THE RIGHT TO COUNSEL

         Hinojosa asserts in her first two issues on appeal that the record lacks any waiver of her

right to counsel or any admonishments under Faretta v. California, 422 U.S. 806 (1975).




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Accordingly, Hinojosa argues that this failure of the trial court to properly address her decision

to forego representation by trial counsel violated the Sixth and Fourteenth Amendments to the

United States Constitution and abridged her right to due process.

A.     Assistance of Counsel

       The Sixth and Fourteenth Amendments to the Federal Constitution, as well as Article I,

Section 10 of the Texas Constitution, guarantee a number of rights to the accused in a criminal

proceeding. Not the least of these rights is the right to counsel. U.S. CONST. amend. VI, XIV;

TEX. CONST. art. 1, § 10. See also Faretta, 422 U.S. at 807; Gideon v. Wainwright, 372 U.S.

335, 342-44 (1963); Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999). An accused,

in any state or federal court, must be afforded the right to the assistance of counsel before she

can be validly convicted and punished by imprisonment. Faretta, 422 U.S. at 807, Argersinger

v. Hamlin, 407 U.S. 25, 30-31 (1972) (right to counsel in jailable misdemeanor cases).

Importantly, the right to counsel in misdemeanor cases is not lost merely because the trial court

grants probation after assessing punishment with a period of confinement in jail. Warr v. State,

591 S.W.2d 832, 835 (Tex. Crim. App. 1979).

       The right of an accused to self-representation in her own defense is an independent right

that does not arise from one’s power to waive assistance of counsel. Faretta, 422 U.S. at

819-820. In Johnson v. State, 614 S.W.2d 116, 119 (Tex. Crim. App. 1981), the Court of

Criminal Appeals determined that Faretta requirements are triggered simply by a defendant

appearing without an attorney to contest his guilt. See also Williams v. State, 194 S.W.3d

568, 577 (Tex. App.—Houston [14th Dist.] 2006) (holding that “[t]he appearance of a criminal

defendant in court without counsel necessitates an examination by the trial judge to assure the




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defendant is actually aware of his right to retain an attorney and to discover whether he intends

to do so.”), aff’d, 252 S.W.3d 353 (Tex. Crim. App. 2008).

       Once the right to self-representation has been invoked, the trial judge is obligated to

determine, at a minimum, whether the waiver of the right to counsel was knowing, intelligent,

and voluntary. Faretta, 422 U.S. at 835. In order to do so, Faretta requires the trial court to

sufficiently   admonish   a   defendant   regarding   “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.’” Id. A trial judge may “not sit idly by doling out enough legal

rope for defendants to participate in impending courtroom suicide; rather, judges must take an

active role in assessing the defendant’s waiver of counsel.” Blankenship v. State, 673 S.W.2d

578, 583 (Tex. Crim. App. 1984). To decide whether a defendant’s waiver is knowing and

intelligent, the court must make an inquiry, evidenced by the record, that shows that the

defendant has sufficient intelligence to demonstrate a capacity to waive his right to counsel and

the ability to appreciate the practical disadvantage he will confront in representing himself.

Goffney v. State, 843 S.W.2d 583, 584-85 (Tex. Crim. App. 1992); Geeslin v. State, 600 S.W.2d

309, 313 (Tex. Crim. App. 1980).

       An appellate review indulges every reasonable presumption against the waiver of

counsel. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Trevino v. State, 555 S.W.2d 750, 751

(Tex. Crim. App. 1977); (holding that “‘courts indulge every reasonable presumption against

waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the

loss of fundamental rights.’”) (footnote omitted). Moreover, it is the State that bears the heavy

burden to demonstrate an intelligent, voluntary, and knowing waiver of constitutional rights,




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particularly as applied to the right to retained or appointed counsel. Williams, 194 S.W.3d at

576-77.

B.     Analysis

       Just as in Williams, Hinojosa appeared on the day of trial without an attorney, triggering

the trial court’s obligation to conduct a comprehensive examination of whether the waiver of

counsel was knowingly, intelligently and voluntarily made. Id. at 577. This necessarily included

an understanding of all the circumstances under which her waiver of counsel was tendered. Id. at

578. Absent in the present case is any such inquiry or an admonishment of Hinojosa’s right to

have counsel appointed to defend her if she was unable to hire an attorney on her own. Although

the State suggests that Hinojosa was admonished at her arraignment, the State concedes that the

record does not support a knowing and intelligent waiver.

       The record substantiates that the trial court failed to make a preliminary determination of

whether Hinojosa was either indigent or, more specifically, qualified to receive appointed trial

counsel. Id. at 578 n.5. After Hinojosa was convicted and sentenced on April 17, 2007, the

record substantiates that the trial court conducted an indigency hearing, or at least considered

Hinojosa’s affidavit of indigency, and found that Hinojosa was indigent. On May 2, 2007,

attorney Michael Guerra was appointed to represent Hinojosa on her post-trial motions, and on

July 9, 2007, after the hearing on Hinojosa’s motion for new trial, the court appointed appellate

counsel. As the Williams’ Court observed on similar facts, “[i]t is unlikely appellant’s financial

status had changed significantly in the month since her trial.” Id. Without knowing whether she

was entitled to appointed trial counsel, Hinojosa’s waiver of her right to counsel, if any, could

not have been made knowingly, intelligently and voluntarily as required by the Sixth and

Fourteenth Amendments. Id.




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C.      Texas Rule of Appellate Procedure 44.2

        Rule 44.2(a) categorizes the review of errors in a criminal case into two general

categories: constitutional errors and non-constitutional errors. TEX. R. APP. P. 44.2. With regard

to constitutional errors, if the error is a structural constitutional error, then the error is reversible

without a harm analysis. TEX. R. APP. P. 44.2(a); Cain v. State, 947 S.W.2d 262, 264 (Tex.

Crim. App. 1997) (superceded by statute on other grounds). On the other hand, if the error is a

nonstructural, constitutional error, an appellate court must reverse the trial court if it fails to find

beyond a reasonable doubt that the error did not contribute to the judgment. TEX. R. APP. P.

44.2(a). All other errors, defects, irregularities or variances that do not affect the substantial

rights of a defendant are disregarded. TEX. R. APP. P. 44.2(b).

        As previously determined, the right to counsel is guaranteed by the Sixth and Fourteenth

Amendments of the United States Constitution. Thus, the error in this case was a constitutional

error requiring a determination of whether the error is subject to harmless error review. TEX. R.

APP. P. 44.2(a). Structural errors are constitutional violations “affecting the framework within

which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v.

Fulminante, 499 U.S. 279, 310 (1991); see also Cain, 947 S.W.2d at 264 (determining that

constitutional errors not subject to harm analysis are limited to “certain federal constitutional

errors labeled by the United States Supreme Court as ‘structural’”). The United States Supreme

Court has determined these fundamental constitutional rights include the right to counsel, the

right to an impartial judge, the right to not have members of the defendant’s race unlawfully

excluded from a grand jury, the right to self-representation at trial, and the right to a public trial.

Fulminante, 499 U.S. at 309-10; see also Manley v. State, 23 S.W.3d 172, 175 (Tex. App.—

Waco 2000, pet. ref’d) (“A complete denial of counsel falls within this category.”). Because we




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hold that proceeding to trial without a knowing, intelligent and voluntary waiver of counsel or

the necessary admonishments against self-representation, is a structural, constitutional error, it is

not subject to a harm analysis. 1 TEX. R. APP. P. 44.2(a). We, therefore, reverse the judgment of

the trial court and remand the cause for a new trial. 2


                                                        Rebecca Simmons, Justice


DO NOT PUBLISH




1
  Because the right to counsel attaches for any jailable misdemeanor, Argersinger, 407 U.S. 25 at 30-31, and
Hinojosa was charged with a class B misdemeanor, an offense punishable by confinement for up to 180 days in jail,
whether the trial court determines punishment without confinement is irrelevant. See Warr, 591 S.W.2d at 835.
We, therefore, decline to follow the State’s recommendation to remand this matter for a new punishment hearing.
2
  Because our findings with regard to Hinojosa’s Sixth Amendment right to counsel are dispositive of this appeal,
we need not address Hinojosa’s issue related to factual sufficiency. See TEX. R. APP. P. 47.1 (encouraging concise
opinions addressing only those issues “necessary to final disposition of the appeal”).


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