            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. PD-1245-06



                     JANET LORRAINE WILLIAMS, Appellant

                                            v.

                               THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE FOURTEENTH COURT OF APPEALS
                           BRAZORIA COUNTY

        K EASLER, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, P RICE, J OHNSON, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. W OMACK,
J., not participating.

                                     OPINION

      The Court of Appeals held that Janet Lorraine Williams’s waiver of her right to

counsel was invalid because the trial judge failed to inquire into her indigent status and

admonish her about the right to appointed counsel.1 The court held that the error was




      1
          Williams v. State, 194 S.W.3d 568, 575-79 (Tex. App.—Houston [14th] 2006).
                                                                             WILLIAMS—2

structural constitutional error that is categorically immune to a harm analysis.2 We granted

review to determine whether the court’s refusal to apply a harm analysis was incorrect. We

hold that the court was correct and affirm its judgment.

                                         Background

        Williams was charged with the Class A misdemeanor offense of terroristic threat3 for

threatening to assault a teacher’s assistant at her son’s elementary school. Williams pled not

guilty, and when she appeared for trial, she did not have counsel. The trial judge took note

of this and questioned Williams. Williams told the judge that she wanted to represent herself.

The trial judge then engaged in a brief colloquy with Williams about her desire to proceed

pro se.     During this discussion, the trial judge informed Williams of the charge, the

applicable range of punishment, and warned her that she would be dealing with an

“experienced prosecutor.” Although the judge told Williams that she had the “right” to an

attorney, the judge neither informed Williams that she would be entitled to an attorney if she

could not afford one nor inquired into Williams’s indigent status even though Williams stated

that she did not hire an attorney because she could not afford one. Despite the inadequate

admonishments, the judge allowed Williams to represent herself. A jury found Williams

guilty and assessed her punishment at thirty days’ confinement in the county jail and a $1.00

fine.   However, the jury suspended the sentence and placed Williams on community



        2
            Id. at 579.
        3
            T EX. P ENAL C ODE A NN. § 22.07(a)(2) (Vernon 2003).
                                                                              WILLIAMS—3

supervision for six months.

       Williams filed a notice of appeal and a sworn affidavit of indigency. After a short

indigency hearing, the trial judge determined that Williams was indigent and appointed her

counsel for appeal.

       On appeal before the Fourteenth Court of Appeals, Williams claimed, among other

things, that her decision to waive counsel was not made knowingly, intelligently, and

voluntarily because the trial judge failed to adequately address her indigent status and her

right to appointed counsel as required by Faretta v. California.4 The court of appeals

determined that Williams’s waiver of her right to counsel was invalid.5 In doing so, the court

stated: “Without knowing whether she was entitled to appointed trial counsel, appellant’s

waiver of her right to counsel was not made knowingly, intelligently, and voluntarily as

required by the Sixth and Fourteenth Amendments.” 6 Turning to the question of whether

the error was harmless, the court held that the error was fundamental and not subject to a

harmless error analysis under Texas Rule of Appellate Procedure 44.2.7 As a result, the court

reversed the trial court’s judgment and remanded the case for a new trial.8




       4
           Williams, 194 S.W.3d at 575; Faretta v. California, 422 U.S. 806, 818 (1975).
       5
           Williams, 194 S.W.3d at 575-76.
       6
           Id. at 578-79.
       7
           Id.
       8
           Id. at 579.
                                                                              WILLIAMS—4

       Focusing only on the court of appeals’s refusal to apply a harm analysis, the State

petitioned for review, presenting two grounds for our consideration:

       (1)      whether any error in the trial court’s admonishments to the defendant
                regarding self-representation was a non-structural constitutional error
                subject to harm analysis, and

       (2)      whether the court of appeals erred by not performing a harmless error
                analysis under Rule 44.2 of the Texas Rules of Appellate Procedure.

       We granted the State’s petition and now hold that, under the facts of this case, the

court of appeals did not err.

                                      Law and Analysis

       The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defense.” 9 The right to

counsel at trial is regarded as fundamental.10 The assistance of counsel protects a defendant’s

right to a fair trial;11 counsel ensures that the prosecution’s case is subjected to meaningful

adversarial testing 12 and safeguards the defendant’s rights.13 An indigent defendant is




       9
            U.S. C ONST. A MEND. VI; Gideon v. Wainwright, 372 U.S. 335, 340-45 (1963).
       10
            Gideon, 372 U.S. at 343-44; Strickland v. Washington, 466 U.S. 668, 684-85
(1984).
       11
            Gideon, 372 U.S. 343-44; Faretta, 422 U.S. at 832-33.
       12
            United States v. Cronic, 466 U.S. 648, 659 (1984); Strickland, 466 U.S. at 685.
       13
         Kimmelman v. Morrison, 477 U.S. 365, 377 (1986) (citing Maine v. Moulton,
474 U.S. 159, 168-70 (1985); Cronic, 466 U.S. at 653; Schaefer, Federalism and State
Criminal Procedure, 70 H ARV. L. R EV. 1, 8 (1956)).
                                                                             WILLIAMS—5

therefore entitled to appointed counsel unless the defendant competently, intelligently, and

voluntarily waives the right to counsel.14

       The Sixth Amendment also includes the reciprocal right to self-representation.15

However, “the right to self-representation does not attach until it has been clearly and

unequivocably asserted.” 16 Once asserted, under Faretta, the trial judge must inform 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 eyes open.’” 17 When

advising a defendant about the dangers and disadvantages of self-representation, the trial

judge must inform the defendant “that there are technical rules of evidence and procedure,

and he will not be granted any special consideration solely because he asserted his pro se

rights.” 18 But a trial judge has no duty to inquire into an accused’s “age, education,

background or previous mental history in every instance where an accused expresses a desire




       14
         Gideon, 372 U.S. at 340-45; Johnson v. Zerbst, 304 U.S. 458, 464-65, 467-68
(1938); Faretta v. California, 422 U.S. 806, 818 (1975).
       15
         Faretta, 422 U.S. at 818. But see Martinez v. Court of Appeal of California,
Fourth Appellate District, 528 U.S. 152, 163 (2000).
       16
          Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) (citing
Faretta, 422 U.S. at 835; Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)).
       17
         Id. at 835 (citing Adams v. United States, 317 U.S. 269, 279(1942)). But see
Iowa v. Tovar, 541 U.S. 77, 81 (2004); Patterson v. Illinois, 487 U.S. 285, 299 (1988).
       18
            Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988).
                                                                             WILLIAMS—6

to represent himself[.]” 19

       “‘[C]ourts indulge every reasonable presumption against waiver’ and . . . ‘do not

presume acquiescence in the loss of fundamental rights.’” 20 The trial judge is responsible for

determining whether a defendant’s waiver is knowing, intelligent, and voluntary.21 To assess

whether a waiver is effective, courts consider the totality of the circumstances. This means

that courts must examine “the particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the accused.” 22

       A complete denial of the constitutional right to counsel at trial is a structural defect

that affects the framework of the trial.23 When the right to trial counsel has been violated,

prejudice is presumed because the trial has been rendered inherently unfair and unreliable.24

So although most constitutional errors are subject to a harm analysis,25 the complete denial


       19
            Goffney v. State, 843 S.W.2d 583, 584-85 (Tex. Crim. App. 1992).
       20
            Zerbst, 304 U.S. at 464.
       21
            Id. at 465.
       22
            Id. at 464.
       23
         Johnson v. United States, 520 U.S. 461, 468-69 (1997) (citing Gideon, 372 U.S.
at 339-47); Arizona v. Fulimante, 499 U.S. 279, 309 (1991).
       24
            Satterwhite v. Texas, 486 U.S. 249, 256 (1988); Cronic, 466 U.S. 659-61.
       25
         Chapman v. California, 386 U.S. 18, 24 (1967); Rose v. Clark, 478 U.S. 570,
576-77 (1986) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)); Rushen v.
Spain, 464 U.S. 114, 118 (1983) (per curiam); United States v. Hasting, 461 U.S. 499,
508-09 (1983); Moore v. Illinois, 434 U.S. 220, 232 (1977); Milton v. Wainwright, 407
U.S. 371 (1972); Chambers v. Maroney, 399 U.S. 42, 52-53 (1970); Hopper v. Evans,
456 U.S. 605, 613-14 (1982)); see generally Johnson v. State, 169 S.W.3d 223, 229-33
                                                                               WILLIAMS—7

of the right to counsel at trial is not.26 In accord with this principle, we have recognized that

when the record does not affirmatively show that the defendant was sufficiently admonished

as required by Faretta, it is reversible error, not subject to a harm analysis.27

          Before us, the State claims that the trial judge’s failure to sufficiently admonish

Williams regarding pro se representation is non-structural constitutional error that is subject

to a harm analysis. Thus, the State contends that the court of appeals should have determined

whether the trial judge’s failure to admonish Williams more fully was harmless beyond a

reasonable doubt.28 Toward that end, the State urges us to follow the approach taken by the

Fort Worth Court of Appeals in Fulbright v. State.29 There, the appellant argued that the trial

judge erred in failing to appoint counsel because he never waived his right to counsel and

because the trial judge failed to adequately admonish him about the dangers and

disadvantages of self-representation.30 The court of appeals disagreed and held that “the

record shows the trial court adequately admonished appellant regarding the dangers and



(Tex. Crim. App. 2005).
          26
               Gideon, 372 U.S. at 339-47; Cronic, 466 U.S. at 659; see also Clark, 478 U.S.
at 578.
          27
          Goffney, 842 S.W.2d at 584-85; Powell v. State, 632 S.W2d 354, 355 (Tex.
Crim. App. 1982); Johnson v. State, 614 S.W.2d 116, 117-19 (Tex. Crim. App. 1981);
Linsey v. State, 574 S.W.2d 144, 145-47 (Tex. Crim. App. 1978).
          28
               See Chapman, 386 U.S. at 24; T EX. R. A PP. P. 44.2(a).
          29
               41 S.W.3d 228, 235-36 (Tex. App.—Fort Worth 2001, pet. ref’d).
          30
               Id. at 234.
                                                                                WILLIAMS—8

disadvantages of self-representation, so that he intelligently and knowingly waived his right

to counsel and instead chose to represent himself.” 31 The court went on to say, in dicta, that

even if the trial judge’s admonishments were insufficient, the error was harmless.32

       Looking to Rule 44.2(a) of the Texas Rules of Appellate Procedure, the Fort Worth

Court of Appeals stated: “The question here is whether the trial court’s alleged failure to

admonish more fully was harmless beyond a reasonable doubt.” 33             Concluding that the

alleged error was harmless, the court reasoned that the appellant intended to represent

himself “irrespective of the trial court’s admonishments or advice that he choose to be

represented by counsel.” 34 The court observed that the appellant “had a history of firing

court-appointed attorneys in this and other cases[;]” the appellant had represented himself

in municipal court in the past and was, at the time of his trial, representing himself in a Dallas

case.35 The court stated that the error was not a factor in the appellant’s decision to waive

counsel and represent himself or in the outcome of the trial based on the facts of the case.36

       Adopting the rationale of the Forth Worth Court of Appeals, the State argues that the




       31
            Id. at 235.
       32
            Id.
       33
            Id.
       34
            Id. at 236.
       35
            Id.
       36
            Id.
                                                                               WILLIAMS—9

trial judge’s failure to inquire into Williams’s indigency and admonish her about her right

to appointed counsel was not a factor in her decision to waive counsel and represent herself.

The State further contends that, had Williams been properly admonished, the outcome of the

trial would have been no different. Finally, Williams, the State maintains, was not “refused

counsel” because of the trial judge’s insufficient admonishments.

       Williams and Texas Appleseed as amicus curiae for Williams argue that Williams was

denied her right to trial counsel due to the trial judge’s failure to obtain a knowing,

intelligent, and voluntary waiver. They contend that the error was structural error and not

subject to a harmless error analysis. Addressing the State’s argument that the error was

harmless, Williams and Texas Appleseed maintain that the State is attempting to speculate

about what impact counsel would have had on Williams’s trial had she been properly

admonished. They also argue that the State has created a false and meaningless distinction

between a “refusal” to appoint counsel and a “denial” of the right counsel.

       The application of a harm analysis is dependent on the type of error or violation at

issue in this case. The court of appeals held that Williams’s waiver was not made knowingly,

intelligently, and voluntarily because the trial court failed to inquire into Williams’s indigent

status and admonish Williams about her right to appointed counsel.37 By holding that

Williams’s waiver of her right to trial counsel was not made knowingly, intelligently, and

voluntarily, the court determined that her waiver was invalid. The State does not challenge


       37
            Williams, 194 S.W.3d at 578-79.
                                                                            WILLIAMS—10

this holding, and although it characterizes the error as one involving insufficient

admonishments, the particular error at issue concerns instead an invalid waiver of the right

to counsel.38

       An invalid waiver waives nothing; therefore, Williams’s right to trial counsel

remained intact.39 As a result, Williams was entitled to be represented by counsel during her

trial. And because the trial judge allowed Williams to represent herself without a valid

waiver of the right to counsel, Williams was denied her right to trial counsel. Contrary to the

State’s assertion, the fact that the trial judge did not explicitly “refuse” counsel is of no

consequence. Williams’s failure to request the assistance of counsel at trial did not forfeit

her right to counsel.40 Indeed, a defendant cannot be expected to assert the right to appointed

trial counsel if the defendant is unaware of the right.41

       We conclude that Williams’s trial was rendered fundamentally unfair and unreliable

because she was denied the right to appointed counsel. The application of a harmless error


       38
          See Cordova v. Baca, 346 F.3d 924, 926-27 (9th Cir. 2003) (discussing the
difference between a defective Faretta colloquy and an ineffective waiver of the right to
trial counsel and noting the potential application of a harmless error analysis to a
defective Faretta colloquy to find an effective waiver); see also United States v. Virgil,
444 F.3d 447, 456-47 (5th Cir. 2006) (recognizing that a defective waiver colloquy, as
opposed to a defective waiver, may be subject to a harmless error analysis).
       39
            See Alabama v. Shelton, 535 U.S. 654, 658 (2002).
       40
        Gideon, 372 U.S. at 340 (citing Zerbst, 304 U.S. at 465); Oliver v. State, 872
S.W.3d 713, 715-16 (Tex. Crim. App. 1994).
       41
         See Tovar, 541 U.S. at 81; Patterson, 487 U.S. at 299; cf. Miranda v. Arizona,
384 U.S. 436, 473 (1966).
                                                                            WILLIAMS—11

analysis is therefore not appropriate; prejudice is presumed.

       The State’s harmless-error arguments serve as a reminder of why a total deprivation

of trial counsel requires automatic reversal. In arguing that the error was harmless, the State

contends that the record shows that Williams “intended to represent herself irrespective of

the trial court’s admonishments or advice, and that she specifically chose to represent

herself.” Additionally, the State argues that, under the facts of this case, the outcome of the

trial would not have been different. These arguments, as noted by Williams, are purely

speculative, and it is the speculative nature of these arguments that makes an assessment of

harmlessness impossible.

       When a defendant’s waiver is invalid and, as a result, the right to appointed trial

counsel is violated, a court cannot, with any accuracy, predict what would have occurred in

the absence of the violation.42 We do not know whether Williams would have accepted the

assistance of appointed counsel had she been properly admonished by the trial judge.

Moreover, in arguing that the outcome of the trial would have been the same, the State

ignores the fact that “[t]he entire conduct of the trial from beginning to end is obviously

affected by the absence of counsel . . . .” 43 Thus, in this case, there is simply no way to

discern what the outcome would have been had Williams been represented by counsel.

       42
          Cf. Satterwhite, 486 U.S. at 256-57; Penson v. Ohio, 488 U.S. 75, 87 (1988)
(“Mere speculation that counsel would not have made a difference is no substitute for
actual appellate advocacy, particularly when the court’s speculation is itself unguided by
the adversary process.”).
       43
            Fulminate, 499 U.S. at 309-10.
                                                                          WILLIAMS—12

                                       Conclusion

       Because Williams was allowed to represent herself at trial in the absence of a valid

waiver of her right to counsel, we hold that the court of appeals did not err in refusing to

conduct a harmless error analysis. The judgment of the court of appeals is affirmed.




DATE DELIVERED: January 16, 2008
PUBLISH
