                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00188-CR

                                           James BURLEY,
                                              Appellant

                                                v.
                                           The STATE of
                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR8452
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 22, 2014

AFFIRMED

           The sole issue presented in this appeal is whether the trial court sufficiently admonished

appellant, James Burley, regarding his right to counsel and the disadvantages and dangers of self-

representation. We affirm the trial court’s judgment.

                                            BACKGROUND

           Burley was indicted for felony assault against a member of his family or household or a

person with whom he had or has had a dating relationship, enhanced by a prior offense of assault

of a public servant. Prior to trial, the trial court conducted a hearing on Burley’s request to
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represent himself. At the conclusion of the hearing, the trial court found that Burley “made the

decision voluntarily to represent himself and is voluntarily exercising that constitutional right

knowingly and intelligently.”

       During the trial, the State presented evidence to show that Burley beat his girlfriend, who

was four months pregnant at the time, while Burley sought to establish that he was acting in self-

defense and was not and had not dated the victim. A jury found Burley guilty of the offense. The

jury also found the enhancement allegation to be true and assessed his punishment at eleven years

in prison.

                                RIGHT TO SELF-REPRESENTATION

       Although the Sixth Amendment guarantees an indigent defendant the right to be

represented by counsel at trial, it also “includes the reciprocal right to self-representation.”

Williams v. State, 252 S.W.3d 353, 355-56 (Tex. Crim. App. 2008); see also Fernandez v. State,

283 S.W.3d 25, 28 (Tex. App.—San Antonio 2009, no pet.).               If a defendant clearly and

unequivocably asserts his right to self-representation, “the trial court must admonish the defendant

about the dangers and disadvantages of self-representation.” Fernandez, 283 S.W.3d at 28; see

also Williams, 252 S.W.2d at 356. In admonishing the defendant, the trial court 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 (quoting Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988)); see also Franklin,

283 S.W.3d at 28. Although a trial court is not required to inquire into the defendant’s age,

education, background, or prior mental health history in every instance, “the record must contain

the proper admonishments concerning pro se representation and any necessary inquiries so that

the trial court may assess the defendant’s knowing exercise of the right to self-representation.”

Franklin, 283 S.W.3d at 28; see also Williams, 252 S.W.3d at 356.
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       Courts must “indulge every reasonable presumption against waiver” of the right to counsel,

and the trial court must determine that “defendant’s waiver is knowing, intelligent, and voluntary.”

Williams, 252 S.W.3d at 256 (internal citations omitted). In determining whether a waiver is

effective, “courts consider the totality of the circumstances,” including “the particular facts and

circumstances surrounding [the] case [and] the background, experience, and conduct of the

accused.” Id.

                                             ANALYSIS

       At the commencement of the pre-trial hearing, the trial judge confirmed that Burley was

not seeking to represent himself based on his inability to afford a lawyer, informing Burley that an

attorney had been appointed to represent him. Although not required, the trial judge inquired about

Burley’s age and his educational background. Burley informed the court that he was thirty-five

years old and attended school for fourteen years, which included high school and some college.

In response to the trial judge’s inquiries about Burley’s work experience and military service,

Burley informed the court that he had taken vocational courses, was engaged in selling commercial

real estate, and served three years in the military before being honorably discharged due to a

disability. In response to additional questioning by the trial judge, Burley stated that he had never

previously participated in a trial but had studied the law by researching on the internet. Burley

further stated that he did not have any history of mental disorders or psychiatric treatment.

       The trial judge then informed Burley of his right to have a lawyer represent him and to be

appointed an attorney if he could not afford one. The trial judge confirmed that Burley understood

that he was charged with family violence assault and with aggravated assault with a deadly weapon

in a second case. The trial judge further confirmed that Burley understood the State had alleged a

prior offense to enhance his punishment.



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       The trial judge commented that he wanted to make it very clear that he believed Burley

was making a mistake. The trial judge stated that he had a few recent cases where he believed the

defendants received a greater punishment than they would have received if they had been

represented by an attorney. The trial judge further stated that Burley would be expected to comport

himself as a lawyer, would be treated like a lawyer, and would not receive any special favors. The

trial judge informed Burley that he would have to comply with the rules of evidence in introducing

evidence and in objecting to evidence.       Burley was further informed that he could waive

jurisdictional defects and defects in the indictment if he failed to comply with the law in raising

those types of issues. The trial judge stated, “You may be convicted although absolutely innocent

because you may not know how to establish a defense or get it into evidence in front of a jury.”

Finally, the trial judge commented that Burley may not get a fair and impartial jury if he did not

know “how to select a jury and the rules in that regard,” “an incorrect charge might go to the jury”

if Burley failed to properly object, and “the prosecutor might argue something incorrectly” which

the jury would hear if Burley failed to properly object.

       At the conclusion of these admonishments, the trial judge noted that appointed counsel had

been representing Burley for some time, and asked his opinion. Appointed counsel stated that he

believed Burley was competent. After finding Burley voluntarily, knowingly, and intelligently

waived his right to counsel, the trial judge offered Burley the opportunity to have standby counsel

sit with him. Burley declined this offer.

       From the foregoing, the record affirmatively establishes that the trial judge informed

Burley about his right to counsel and of the charges pending against him. The trial judge

discouraged Burley from representing himself and gave examples of the dangers and

disadvantages to such self-representation. The trial judge informed Burley about the rules of

evidence and procedure that he would be required to follow in seeking to admit or exclude evidence
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and in making objections to the jury charge and to the arguments made by the State. The trial

judge further informed Burley that he would be held to the same standards as an attorney and

would not receive any special favors. Although not required, the trial judge also inquired into

Burley’s educational background, his work experience, and his familiarity with the law. Having

reviewed the record, we conclude that the trial judge sufficiently admonished Burley about the

dangers and disadvantages of self-representation, and Burley knowingly and intelligently waived

his right to counsel.

                                         CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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