                                   NO. 12-16-00069-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

MONICA SHAW GIBSON,                                §      APPEAL FROM THE
APPELLANT

V.                                                 §      COUNTY COURT AT LAW

THE STATE OF TEXAS,
APPELLEE                                           §      SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Monica Shaw Gibson appeals her conviction for making a false report to a police officer.
Appellant raises two issues on appeal. We reverse and remand.


                                           BACKGROUND
       The State charged Appellant with providing a false report to a police officer. At her
arraignment, Appellant stated that she wished to represent herself and demanded a jury trial.
Before beginning voir dire, Appellant waived her right to a jury trial. Following a bench trial,
the trial court found Appellant guilty and sentenced Appellant to confinement for one hundred
days in county jail. This appeal followed.


                                      SELF-REPRESENTATION
       In her first issue, Appellant contends that the trial court erred by allowing her to waive
her right to counsel and represent herself without first questioning her competency or properly
admonishing her. She argues that her waiver was not made either competently or knowingly and
intelligently and, as a result, she was denied the right to counsel.
Applicable Law
       “In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance
of Counsel for his defence.” U.S. CONST. amend. VI. The right to counsel is a fundamental right,
and the “[c]ourts indulge every reasonable presumption against waiver and do not presume
acquiescence in the loss of fundamental rights.” Williams v. State, 252 S.W.3d 353, 356 (Tex.
Crim. App. 2008). But if a criminal defendant elects to proceed without counsel, he has a
constitutional right to do so. See Indiana v. Edwards, 554 U.S. 164, 170, 128 S. Ct. 2379, 2383,
171 L. Ed. 2d 345 (2008); Faretta v. California, 422 U.S. 806, 819–20, 95 S. Ct. 2525, 2533, 45
L. Ed. 2d 562 (1975). Several benefits associated with the right to counsel are relinquished upon
a defendant’s invocation of his right to self-representation. See Faretta., 422 U.S. at 835, 95 S.
Ct. at 2541; see also Williams, 252 S.W.3d at 356. To be constitutionally effective, a waiver of
the right to counsel must be made (1) competently, (2) knowingly and intelligently, and (3)
voluntarily. Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999).
       The relevant question is whether the defendant was competent to waive the right to
counsel, not whether she was competent to represent herself. Indiana, 554 U.S. at 172, 128 S.
Ct. at 2384; see also Dunn v. State, 819 S.W.2d 510, 523 (Tex. Crim. App. 1991). Generally,
the standard for waiving the right to counsel is no higher than that for competency to stand trial.
Chadwick v. State, 309 S.W.3d 558, 560 (Tex. Crim. App. 2010). In Texas, a defendant is
competent to stand trial if she has sufficient present ability to consult with her lawyer with a
reasonable degree of rational understanding or a rational and factual understanding of the
proceedings against her. Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008). A
competency determination is required only when there is sufficient evidence to create a bona fide
doubt as to whether the defendant meets the test of legal competence. Moore, 999 S.W.2d at
393. Evidence is sufficient to create a bona fide doubt if it shows recent severe mental illness, at
least moderate retardation, or truly bizarre acts by the defendant. Id.
       The decision to waive counsel and proceed pro se is made knowingly and intelligently if
it is based on a full understanding of the right to counsel, which is being abandoned, as well as
the dangers and disadvantages of self-representation. Collier v. State, 959 S.W.2d 621, 626
(Tex. Crim. App. 1997). A defendant “should be made aware of 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.’” Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (quoting Adams v.



                                                 2
ex. rel. McCann, 317 U.S. 269, 279, 635 S. Ct. 236, 242, 87 L. Ed. 268 (1942)); Williams, 252
S.W.3d at 356. No formulaic questioning or particular script is required for a trial court to assure
itself that an accused has asserted his right to self-representation with eyes open. Burgess v.
State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). A valid waiver must be made with an
apprehension of the nature of the charges, the statutory offenses included within them, the range
of allowable punishments, possible defenses to the charges, any mitigating circumstances, and all
other facts essential to a broad understanding of the whole matter. Blankenship v. State, 673
S.W.2d 578, 583 (Tex. Crim. App. 1984).           Furthermore, 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. Williams, 252 S.W.3d at 356.
       A denial of the constitutional right to trial counsel is a structural defect that affects the
framework of the trial. Id. at 357. Therefore, when the right is violated, prejudice is presumed
because the trial has been rendered inherently unfair and unreliable. Id. When the record does
not affirmatively show that the defendant was sufficiently admonished, it is reversible error and
not subject to a harm analysis. Id.
Analysis
       At her arraignment, the trial court informed Appellant and several other individuals, as a
group, that they had the right to an attorney, which meant they could hire one, ask the court to
appoint one, or represent themselves. The trial court advised the group of the punishment ranges
for both class A and class B misdemeanors but did not explain these ranges to each defendant
individually. Each individual received a form entitled “Admonishment of Right to Counsel,”
which (1) stated that a defendant has the right to an attorney, and (2) gave each defendant the
opportunity to waive the right to counsel and represent themselves.
       When she had an opportunity to speak with the trial court, Appellant stated that she
wished to represent herself and that she understood the charges against her. The trial court
neither questioned Appellant about her decision nor warned her of the disadvantages of
proceeding pro se. The court then set Appellant’s case for trial. On the day of trial, the court
confirmed that Appellant still wished to represent herself. At that time, the trial court confirmed
with Appellant that she had no legal training and allowed her to continue pro se.
       As part of her first issue, Appellant argues the trial court should have determined whether
she was competent to waive her right to counsel. However, a competency determination is not



                                                 3
required unless there is evidence sufficient to create a bona fide doubt as to whether the
defendant meets the test of legal competence. Moore, 999 S.W.2d at 393. Appellant has not
pointed to any evidence that she was not competent to waive her right to counsel. Therefore, the
trial court was not required to make a specific competency determination. See id.
         Appellant also contends that she was not properly admonished regarding the
disadvantages of self-representation. As a result, she urges that her waiver was not knowingly or
intelligently made. As previously discussed, while there is no particular script required for
admonishing a defendant, the trial judge must inform the defendant that she will not be granted
any special consideration or relief from the technicalities of the rules of evidence and procedure
solely because she elects to appear pro se. See Williams, 252 S.W.3d at 356; see also Burgess,
816 S.W.2d at 428. Additionally, waiver must be made with a full understanding of the dangers
and disadvantages of self-representation. See Farretta, 422 U.S. at 835, 95 S. Ct. at 2541; see
also Collier, 959 S.W.2d at 626.
         In the present case, the trial court asked Appellant whether she had any legal training, but
did not inform Appellant of the disadvantages of proceeding to trial without an attorney. Before
she waived her right to a jury, the trial court explained to Appellant that she would be
responsible for making “legal objections” and that the court could not act as her lawyer.
However, the trial judge did not specifically admonish Appellant that she would not be granted
any relief from the technicalities of the rules of evidence and procedure. See Buster v. State, 144
S.W.3d 71, 77 (Tex. App.—Tyler 2004, no pet.) (determining trial court committed error but
conducting harm analysis).            Under these circumstances, we conclude that the trial court
inadequately admonished Appellant.               Consequently, her waiver of counsel was not made
knowingly and intelligently and was constitutionally ineffective. See Moore, 999 S.W.2d at 396;
see also Collier, 959 S.W.2d at 625.               Because Appellant’s right to counsel was violated,
prejudice is presumed and we need not conduct a harm analysis. See Williams, 252 S.W.3d at
357. Accordingly, we sustain Appellant’s first issue and do not address her second issue.1 See
TEX. R. APP. P. 47.1.




         1
          In her second issue, Appellant contends the trial court violated her right to due process by not giving her
an opportunity to review her presentence investigation report prior to the sentencing hearing.


                                                         4
                                                  DISPOSITION
         Having sustained Appellant’s first issue, we reverse the trial court’s judgment and
remand the cause for a new trial.

                                                                BRIAN HOYLE
                                                                   Justice

Opinion delivered December 27, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                       DECEMBER 27, 2016


                                        NO. 12-16-00069-CR


                                    MONICA SHAW GIBSON,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                               Appeal from the County Court at Law
                       of Smith County, Texas (Tr.Ct.No. 001-83181-15)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for a new trial in
accordance with the opinion of this court; and that this decision be certified to the court below
for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
