Opinion issued June 23, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00581-CR
                           ———————————
                       BRODIES E. MYLES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Case No. 1933896


                         MEMORANDUM OPINION

      Brodies Myles was charged with operating a vehicle without a valid driver’s

license. He represented himself at trial and was convicted. In a single issue, he

contends that his waiver of counsel was constitutionally ineffective. Specifically,
he argues that we should overrule prior precedent 1 and hold that he had a

constitutional right to be warned of the dangers and disadvantages of self-

representation even though the trial court appointed standby counsel to assist him.

Alternatively, he seeks a more narrow holding that, even if such warnings are not

required after standby counsel is appointed, they should have been given to him

before the appointment because critical stages in his criminal proceeding occurred

in the interim.

      We affirm.

                                  Background

      Brodies Myles was charged with operating a motor vehicle without a valid

license. He indicated on two separate documents that he wanted counsel appointed.

Two months later, Myles signed two additional forms acknowledging that he had

been informed of the charges against him and that an attorney could be appointed

to represent him at no charge. On both of those signed forms, he indicated that he

was waiving his right to counsel and wished to represent himself. The second of

the two forms, entitled “Final Order on Defendant’s Request or Waiver of

Appointed Counsel,” was also signed by the trial judge. The judge confirmed that

he had “conducted a Faretta inquiry regarding the dangers and disadvantages of

self-representation,” but no record was made of that exchange between the trial

1
      Walker v. State, 962 S.W.2d 124 (Tex. App.—Houston [1st Dist.] 1997, pet.
      ref’d).
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judge and Myles. There is no indication that standby counsel was appointed at that

time. Four months passed before Myles’s trial date.

      On a form dated the first day of trial, the trial court appointed a former

assistant district attorney as standby counsel to assist Myles. During voir dire, the

trial judge informed the panel that Myles was representing himself. He then

explained to the panel that he always tells defendants that they have a right to be

represented by an attorney and to have one appointed if they cannot afford to hire

one. He informed the panel that he “had numerous conversations with Mr. Myles,”

who chose to represent himself. He also explained the standby counsel’s role,

which he described as being “available” to Myles “to answer any questions he may

have of her during this trial.”

      Myles’s trial position, as he explained it to the panel during voir dire, was

that he was not a citizen of the United States or the State of Texas, the State of

Texas can only require people who are engaged in “commerce” while driving on

its roadways to have a driver’s license, and Myles was not a hired driver engaged

in commerce. As Myles explained, “I don’t drive. I just travel from Point A to

Point B.” Myles never disputed that he was operating the vehicle as he traveled.

      Myles did not request standby counsel’s assistance during his trial. The jury

convicted him of operating a motor vehicle without a valid license. The trial court




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sentenced him to three days in Harris County Jail and a $100 fine, plus court costs.

The trial court then certified his right to appeal.

      On appeal, Myles argues that his waiver of counsel was invalid because “he

was not properly admonished concerning the dangers and disadvantages of self-

representation as required by Faretta v. California, 422 U.S. 806 (1975).”

                             Waiver of Right to Counsel

      In all criminal prosecutions, a defendant has the right to assistance of

counsel. U.S. CONST. amend. VI; see TEX. CODE CRIM. PROC. ANN. art. 1.051(a)

(West Supp. 2014). He likewise has the right to self-representation. Faretta v.

California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534 (1975) (“The Sixth

Amendment, when naturally read, thus implies a right of self-representation.”);

TEX. CODE CRIM. PROC. ANN. art. 1.051(f) (“A defendant may voluntarily and

intelligently waive in writing the right to counsel.”). To waive the right to counsel

intelligently and competently, a defendant must be admonished of the dangers and

disadvantages of self-representation. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541;

Goffney v. State, 843 S.W.2d 583, 584 (Tex. Crim. App. 1992). Such warnings are

referred to as Faretta admonitions. E.g., Walker v. State, 962 S.W.2d 124, 126

(Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

      There also exists a middle ground between self-representation and full

representation by defense counsel. At times, criminal defendants may proceed with


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“hybrid representation,” which is “partially pro se and partially by counsel.” E.g.,

Phillips v. State, 604 S.W.2d 904, 907 (Tex. Crim. App. 1979). The Texas Court of

Criminal Appeals has held that a criminal defendant engaged in hybrid

representation has not waived his right to counsel and, as such, there is no error in

a trial court failing to give the defendant Faretta admonitions regarding the

dangers and disadvantages of self-representation. Clark v. State, 717 S.W.2d 910,

918 (Tex. Crim. App. 1986); Maddox v. State, 613 S.W.2d 275, 286 (Tex. Crim.

App. 1980) (op. on reh’g).

      Another possibility is pro se representation with “standby counsel.” Faretta,

422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46; Maddox, 613 S.W.2d at 286. Standby

counsel is available to advise the pro se defendant, but the defendant is not

required to seek his assistance. Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541

n.46; Walker, 962 S.W.2d at 126. If the defendant actually invokes the

participation of standby counsel, it is considered hybrid representation. Id.;

Robertson v. State, 934 S.W.2d 861, 864 (Tex. App.—Houston [14th Dist.] 1996,

no pet.). As such, Faretta admonitions are not required. Clark, 717 S.W.2d at 918.

If the defendant does not invoke standby counsel’s participation, it is not

considered hybrid representation; nonetheless, both this Court and the Fourteenth

Court of Appeals have held that Faretta admonitions are not required in that

context either. Walker, 962 S.W.2d at 126–27 (trial court indicated on record that


                                         5
Faretta warnings were given but there was no record of the hearing; standby

counsel was appointed); Robertson, 934 S.W.2d at 865–66 (no indication of

Faretta warnings; standby counsel was appointed).

      Myles indicated, on multiple occasions, that he wanted to waive his right to

counsel and proceed pro se. The trial court stated on the record that the court had

advised Myles as to his right to an appointed lawyer and that Myles “knows the

dangers of doing so.” The trial judge stated that he had several discussions with

Myles about self-representation, including that Myles would be required to abide

by the applicable rules and that there were dangers in choosing to proceed pro se.

Myles did not object or otherwise indicate that he disagreed with the trial court’s

statements. Further, the trial court appointed standby counsel before Myles’s trial

began.

      Because the record reveals that the trial court admonished Myles under

Faretta and also appointed standby counsel, we reject Myles’s claim of a

constitutional violation. See Walker, 962 S.W.2d at 126–27.

Lag between Initial Self-Representation and Appointment of Standby Counsel

      Myles also argues that, even if we “decline [his] request to reconsider the

holding in Walker,” we should reverse his conviction because standby counsel was

not appointed until the first day of trial, other events occurred pretrial while he was

representing himself, and there is no Faretta record from which to determine


                                          6
whether he intelligently and competently waived his right to counsel for those

pretrial proceedings. In other words, Myles is arguing that Walker does not address

the particular facts of this case, involving a delay in the appointment of standby

counsel until after all pretrial events had occurred. The State has not responded to

this lag-in-time argument.

       “The Sixth Amendment right to counsel ‘extends to all critical stages of the

criminal proceeding, not just the actual trial.’” Gilley v. State, 418 S.W.3d 114, 120

(Tex. Crim. App. 2014) (quoting Hidalgo v. State, 983 S.W.2d 746, 752 (Tex.

Crim. App. 1999)). “But ‘not every event following the inception of adversary

judicial proceedings constitutes a critical stage so as to invoke the right to counsel

under the Sixth Amendment.’” Id. (quoting Green v. State, 872 S.W.2d 717, 720

(Tex. Crim. App. 1994)).

      To determine whether a particular stage of a pretrial proceeding is a critical

one, we must “examin[e] the event in order to determine whether the accused

required aid in coping with legal problems or assistance in meeting his adversary”

at that stage. Green, 872 S.W.2d at 720 (quoting United States v. Ash, 413 U.S.

300, 313, 93 S. Ct. 2568, 2575 (1973)). In other words, an appellate court

      must scrutinize any pre-trial event with a view to ascertaining whether
      presence of counsel is necessary to assure fairness and the effective
      assistance of counsel at trial, which is, after all, “the core purpose of
      the counsel guarantee . . . , when the accused [is] confronted with both
      the intricacies of the law and the advocacy of the public prosecutor.”


                                          7
Id. at 720–21 (quoting Ash, 413 U.S. at 309, 93 S. Ct. at 2573).

      Myles argues that two critical stages occurred between waiver of counsel

and appointment of standby counsel, thereby invoking the need for Faretta

admonitions at those stages.

      First, he argues that plea negotiations qualify as a critical stage in a criminal

proceeding and plea negotiations “presumably” occurred before his standby

counsel was appointed. Our review of the record does not reveal any indication

that plea negotiations occurred. Absent any evidence of plea negotiations in the

record, we will not presume that they occurred. Cf. Oliver v. State, 995 S.W.2d

878, 880 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (concluding that initial

appearance hearing was not shown to be critical stage of proceeding because

“[n]othing in the record shows that bail was set, that appellant entered a plea, or

that an examining trial was held at the hearing”).

      Second, he argues that the order granting the State’s motion to disclose

experts establishes that at least one pretrial discovery hearing took place before

standby counsel was appointed. The State’s motion was granted, but there is no

indication that the trial court ruled following a hearing versus by submission. Even

if a hearing did occur, not every pretrial hearing automatically qualifies as a critical

stage of a proceeding. See Green, 872 S.W.2d at 721; Hidalgo, 983 S.W.2d at 753

(holding that there is no “bright line rule” when particular event will qualify as


                                           8
critical stage); Gobert v. State, 717 S.W.2d 21, 23–24 (Tex. Crim. App. 1986)

(analyzing events that occurred during particular proceeding, not abstract category

of event, to determine whether it qualified as critical stage); Wingfield v. State, 197

S.W.3d 922, 926 (Tex. App.—Dallas 2006, no pet.) (same). Myles has not

explained how a hearing to compel disclosure of experts was critical to his case.

Nor do we see why counsel would have been necessary on that issue given the

absence of any indication in the record that Myles had any experts who were

subject to such a motion. He neither disclosed experts nor presented any at trial.

      Finding no evidence in the record that a critical stage of Myles’s criminal

proceeding occurred in the absence of Faretta warnings and standby counsel, we

do not reach the issue whether the occurrence of a critical stage before standby

counsel was appointed would have mandated Faretta warnings at that juncture.

                                     Conclusion

      The judgment of the trial court is affirmed.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).



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