                                NO. 07-11-00159-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                                 OCTOBER 19, 2011


                       ANGEL JAIME TARANGO, APPELLANT

                                          v.

                         THE STATE OF TEXAS, APPELLEE


              FROM THE COUNTY COURT OF OCHILTREE COUNTY;

                NO. 19,326; HONORABLE EARL MCKINLEY, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION

      Appellant Angel Jamie Tarango appeals the order of the trial court revoking his

community supervision and sentencing him to 180 days’ confinement in the county jail.

Finding appellant was denied the fundamental right to counsel at the hearing on the

State’s motion to revoke community supervision, we reverse the order of the trial court

and remand the case for a new hearing.
                                      Background


      On February 2, 2010, appellant plead guilty to the charge of driving while

intoxicated, second offense.1 The trial court found him guilty and sentenced him to

confinement in the county jail for one year but suspended his sentence and placed him

on community supervision for two years. In a motion to revoke appellant’s community

supervision filed August 16, 2010, the State alleged five violations as grounds.


      On April 5, 2011, appellant appeared without counsel in open court and plead not

guilty to an unrelated charge of driving with a suspended license. The court instructed

him to retain counsel and return on a later date. The court then called the State’s

motion to revoke in the underlying case. Still without counsel, appellant responded the

allegations were true. But following a recess, when the court again inquired about the

allegations, appellant responded, “Not true, sir.” At that, the State announced ready to

proceed and the court instructed the prosecutor to present the State’s case. The only

witness was appellant’s probation officer.       Appellant asked one question on cross-

examination. The State rested and closed. During a following exchange, appellant told

the court he had an appointment with a lawyer. The prosecutor, apparently believing

appellant had waived his right to counsel by his actions at the hearing, took the position

the case was “over” but for sentencing. Without further inquiry concerning appellant’s

representation by counsel, the court found the allegations of probation violations to be

true, and pronounced sentence. This appeal followed. In lieu of a brief, the State has

      1
          Tex. Penal Code Ann. § 49.04 (driving while intoxicated is a Class B
misdemeanor) and § 49.09(a) (enhancement to Class A misdemeanor on showing of
prior conviction for, inter alia, offense relating to operation of motor vehicle while
intoxicated) (West 2011).
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filed a letter acknowledging that review of the record reveals no express waiver of

counsel by appellant with respect to the motion to revoke.


                                         Analysis


        By his first issue, appellant asserts he was denied representation of counsel at

the hearing on the State’s motion to revoke community supervision.


        A criminal defendant has a fundamental right to counsel. U.S. Const. Amend. VI;

Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2010);

Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975);

Gideon v. Wainwright, 372 U.S. 335, 340-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963);

Williams v. State, 252 S.W.3d 353, 355-56 (Tex.Crim.App. 2008). The right applies at a

probation revocation hearing. Hatten v. State, 71 S.W.3d 332, 333 n.1 (Tex.Crim.App.

2002) (citing Ruedas v. State, 586 S.W.2d 520 (Tex.Crim.App. 1979)).             While an

accused may waive his right to counsel, he must do so voluntarily, knowingly and

intelligently.   Webb v. State, 533 S.W.2d 780, 785 (Tex.Crim.App. 1976) (citing

Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972)

(holding “absent a knowing and intelligent waiver, no person may be imprisoned for any

offense, whether classified as petty, misdemeanor, or felony, unless he was

represented by counsel at trial”)).


        The constitution also affords the accused a reciprocal right of self-representation

at trial. Faretta, 422 U.S. at 818-22, 95 S.Ct. at 2532-34; Williams, 252 S.W.3d at 356.

But the right of self-representation does not attach until it is clearly and unequivocally

asserted. Id., 422 U.S. at 835, 95 S.Ct. at 2541. “When a criminal defendant chooses
                                             3
to waive his right to counsel and represent himself, the waiver should be made

knowingly and intelligently and he should be warned of the dangers and disadvantages

accompanying such waiver.” Hatten, 71 S.W.3d at 333 (citing Faretta, 422 U.S. at 835-

836).


        This record contains no testimonial or written evidence that appellant knowingly

and intelligently waived his right to counsel. Webb, 533 S.W.2d at 785; Tex. Code

Crim. Proc. Ann. art. 1.051(g) (West Supp. 2010) (providing written waiver); but see

Burgess v. State, 816 S.W.2d 424, 429-31 (Tex.Crim.App. 1991) (holding no statutory

or constitutional requirement of a written waiver of right to counsel). Nor did appellant

clearly and unequivocally assert the right of self-representation. Williams, 252 S.W.3d

at 356. In the absence of a waiver of the right of counsel, we conclude the trial court

erred in proceeding to disposition of the State’s motion to revoke.


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

prejudice is presumed. Williams, 252 S.W.3d at 357 (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 appellant’s first issue.


        By his second issue, appellant asserts the trial court erred by not ensuring that

he was properly served with a copy of the State’s motion to revoke. We do not reach

this issue because its review is unnecessary to disposition of the appeal. Tex. R. App.

P. 47.1.




                                             4
                                     Conclusion


      Having sustained appellant’s first issue, we reverse the order of the trial court

and remand the case for a new hearing on the State’s motion to revoke community

supervision.




                                                     James T. Campbell
                                                          Justice




Do not publish.




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