                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00422-CR

SIMPSON THOMPSON,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 13th District Court
                             Navarro County, Texas
                           Trial Court No. D34995-CR


                          MEMORANDUM OPINION


       Simpson Thompson appeals from a conviction for possession of a controlled

substance less than one gram. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010).

Thompson complains that the trial court erred by refusing his oral motion for

continuance to allow him ten days to prepare for trial and that his waiver of right to

counsel was invalid. Because we find that the waiver of Thompson's right to counsel

was invalid, we reverse the judgment and remand this proceeding to the trial court for a

new trial.
Waiver of Right to Counsel

       In his second issue, Thompson complains that his waiver of right to counsel was

invalid because the trial court did not properly admonish him prior to the execution of

his waiver pursuant to Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L.

Ed.2d 562 (1975).

       The Sixth Amendment to the United States Constitution and Article 1,
       Section 10 of the Texas Constitution provide that a defendant in a criminal
       trial has the right to assistance of counsel. U.S. CONST. amend. VI; TEX.
       CONST. art. I, § 10. However, this right to counsel may be waived, and the
       defendant may choose to represent himself at trial. Faretta v. California,
       422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed.2d 562 (1975). Although the
       right to self-representation is absolute, a waiver of the right to counsel will
       not be "lightly inferred," and the courts will indulge every reasonable
       presumption against the validity of such a waiver. George v. State, 9
       S.W.3d 234, 236 (Tex. App.—Texarkana 1999, no pet.) (citing Johnson v.
       Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), and
       Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978)).

       How does a court decide whether a valid waiver of counsel exists? Faretta
       requires that (1) the appellant make a "knowing and intelligent" waiver;
       and (2) the appellant must be made aware of the "dangers and
       disadvantages of self-representation." Id. (citing TEX. CODE CRIM. PROC.
       ANN. art. 1.051 (Vernon Supp. 1999)); Faretta, 422 U.S. at 835, 95 S. Ct. at
       2541. To decide whether a defendant's waiver is knowing and intelligent,
       the court must make an inquiry, evidenced by the record, which 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. George, 9 S.W.3d at
       237 (citing Archie v. State, 799 S.W.2d 340, 344 (Tex. App.—Houston [14th
       Dist.] 1990), aff'd, 816 S.W.2d 424 (Tex. Crim. App. 1991)). The court must
       determine not only that the defendant wishes to waive his right to
       counsel, but that he understands the consequences of such waiver. Id.

       Although it is not mandatory that the warnings be given in writing, we
       have previously held that the record must show that the defendant
       understands the consequences of his waiver. Goffney v. State, 812 S.W.2d


Thompson v. State                                                                        Page 2
       351, 352 (Tex. App.—Waco 1991), aff'd, 843 S.W.2d 583 (Tex. Crim. App.
       1992). It is not enough that the record show conclusions by the trial court
       that the defendant is aware of the dangers and disadvantages of self-
       representation.

Griffith v. State, No. 10-11-00262-CR, 2013 Tex. App. LEXIS 5200 at * 2-3 (Tex. App.—

Waco April 25, 2013, pet. ref'd) (mem. op.) (citing Manley v. State, 23 S.W.3d 172, 173-74

(Tex. App.—Waco 2000, pet. ref'd).

Relevant Facts

       On the day of trial, just prior to the start of voir dire, Thompson made an oral

motion to represent himself and asked for time to prepare a defense.                 The State

responded by saying that it was up to the trial court, but that "it's a bad idea."

       The trial court then stated to Thompson:

       Well, I will allow you to represent yourself, sir. But I want you to
       understand I'm not giving you a continuance. This case is set for trial
       today, it's been set for trial today.

       I believe that it is a very bad idea for you to represent yourself, but you do
       have that right, and if you chose to do that, we are going to go forward
       today, sir.

       Thompson's trial counsel then asked the trial court to allow him to withdraw,

which the trial court ultimately allowed. Initially the trial court was going to have

Thompson's trial counsel to act as standby counsel, but Thompson did not want him to

continue in that capacity and the trial counsel stated that he felt that he could not

participate in that capacity.     Thompson's trial counsel offered to remain in the

courtroom to follow the proceedings and to be prepared in case Thompson changed his



Thompson v. State                                                                       Page 3
mind at some point during the trial; however, the trial court did not allow this.

Thompson stated that he felt that given additional time to research he would be able to

represent himself at the trial because he felt that his trial counsel was inadequate. The

trial court then granted the motion for self-representation but denied Thompson's

motion for continuance.

       A break was taken for the purpose of having Thompson execute a written waiver

of the right to counsel and then the following exchange took place between the trial

court and Thompson:

       TRIAL COURT:         Sir, you've advised the Court that you want to waive
       your right to counsel, and you're electing to proceed pro se. I'm going to
       read this Motion for you – or this waiver.

       I've been advised, this 12th day of November, 2013, by the Court of my
       right to representation by counsel in the case pending against me. I have
       further been advised that if I am unable to afford counsel, one will be
       appointed for me free of charge, and I have been admonished by the
       Court about the dangers and disadvantages of representing myself and of
       the obligations involved.

       And Mr. Thompson, I – I did advise you that you're going to be under the
       same Rules and – and guidelines as an attorney; do you understand that,
       sir?

       THOMPSON:           Ma'am, I understand that.

       TRIAL COURT:        Okay.

       THOMPSON:           All I ask is for time to prepare for this trial.

       TRIAL COURT:        And – and I've denied that, sir. Understanding my
       right to have counsel –

       THOMPSON:           Well, if you've denied it –


Thompson v. State                                                                   Page 4
       TRIAL COURT:          – appointed – sir, I am talking.

       Understanding my right to have counsel appointed for free of charge, if I
       am not financially able to employ counsel and of the dangers and
       disadvantages of representing myself, I wish to waive that right and
       request the Court to proceed with my case without an attorney being
       appointed for me. I hereby waive my right to counsel and elect to
       represent myself.

       Is that what you wish to do, sir?

       THOMPSON:             Yes. But I also wish – I – I also wish to have a fair trial
       – and a chance to have a fair trial instead of being kicked to the side and
       made to – I would like to take the time to represent myself. I know I can
       do it. I – I did before.

       TRIAL COURT:          And I –

       THOMPSON:             All I'm asking is give me time to prepare myself for
       the trial.

       TRIAL COURT:          I need you to sign that, sir, if that's what you wish to
       do.

       And I will get you a copy of this in just a second, sir. And you as well
       [trial counsel].

       And at this time, Mr. Thompson has signed the waiver. [Trial counsel] are
       released from the case. And at this time, that will conclude this hearing.

Analysis

       The record demonstrates that Thompson was aware that he would have to

follow the same rules as an attorney and that representing himself was "a very bad

idea," however, that is where the admonishments regarding the dangers and

disadvantages of representing himself ended. The record does not evidence that the



Thompson v. State                                                                          Page 5
trial court made any attempt to explain why it was a bad idea for Thompson to

represent himself. Further, there is nothing in the record to show that the trial court

ensured that Thompson was made aware of any specific difficulties he might encounter

in representing himself beyond a general recognition that he would have to follow the

rules that attorneys are bound to follow. There is nothing in the record to show that

Thompson had been provided with an opportunity to review or have access to

discovery, and it appears from an exchange at the beginning of voir dire that he did not

have that opportunity.

         While Faretta does not mandate an inquiry concerning the defendant's age,

education, background or previous mental health history in every instance where an

accused expresses a desire to represent himself, Martin v. State, 630 S.W.2d 952, 954

(Tex. Crim. App. 1982), the record must contain proper admonishments concerning pro

se representation and any necessary inquiries of the defendant so that the trial court

may make "an assessment of his knowing exercise of the right to defend himself."

Faretta, 422 U.S. at 836; see also Blankenship v. State, 673 S.W.2d 578, 580 (Tex. Crim. App.

1984).

         Because we are required to indulge every reasonable presumption against the

validity of a waiver to the right to counsel, and because the record does not

demonstrate that the trial court adequately advised Thompson of the dangers and

disadvantages of self-representation, we find that the record is inadequate to establish




Thompson v. State                                                                      Page 6
that Thompson's waiver of right to counsel was knowingly and intelligently made.

Because of this, Thompson's waiver was invalid.

Harm Analysis

       The complete denial of the right to trial counsel is a structural defect for which

prejudice is presumed. Williams v. State, 252 S.W.3d 353, 357 (Tex. Crim. App. 2008)

(citing Gideon, 372 U.S. at 339-47). The error is therefore not subject to a harm analysis

but requires reversal. Id. at 357. We sustain Thompson's second issue. Since this error

requires that we reverse and remand for a new trial, it is not necessary to address

Thompson's first issue regarding the trial court's denial of ten days to prepare for trial.

Conclusion

       Because we find that Thompson's waiver of right to counsel was invalid, we

reverse the judgment of conviction and remand this proceeding to the trial court for a

new trial.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed October 23, 2014
Do not publish
[CR25]




Thompson v. State                                                                      Page 7
