                                                                                                                              ACCEPTED
                                                                                                                          03-15-00203-CR
                                                                                                                                  8186166
                                                                                                               THIRD COURT OF APPEALS
                                                                                                                          AUSTIN, TEXAS
                                                                                                                    12/10/2015 3:54:22 PM
                                                                                                                        JEFFREY D. KYLE
                                                                                                                                   CLERK



                                           No. 03-15-00203-CR                                    FILED IN
                                                                                          3rd COURT OF APPEALS
                            In the                                                            AUSTIN, TEXAS
                                                                                         12/14/2015 12:28:22 PM
       Court of Appeals for the Third Supreme Judicial                                      JEFFREY D. KYLE
                                                                                                  Clerk
                  District at Austin, Texas
------------------------------------------------------------------------------------------------------------

               STATE OF TEXAS V. RONNIE HUE MONTGOMERY


         On Appeal from the 147TH Judicial District Court, Travis County

                           Trial Court Cause No. D-1-DC-13-202988




                                   APPELLANT’S BRIEF



                                           Rickey D. Jones
                                      Attorney for the Appellant
                                        Bar I.D. No. 00787791
                                      1910 Pacific Ave, Ste 15100
                                         Dallas, Texas 75201
                                      Telephone: (210) 710-7062
                                       Facsimile: (866) 589-0541
                                      Email: rickey@satx.rr.com


                           APPELLANT REQUESTS ORAL ARGUMENT




                                                                                                                     1
                     Identity of the Parties and Counsel

Appellant
MR. RONNIE HUE MONTGOMERY

Trial Counsel
PRO SE
MR. RONNIE HUE MONTGOMERY




MR. THOMAS WEBER
Attorney at Law
SBOT NO. 21044950
8214 Briarwood Lane
Austin, Texas 78757
Phone: (512) 206-0504
STANDBY ATTORNEY FOR THE DEFENDANT

Appellate Counsel
MR. RICKEY D. JONES
SBOT No. 00787791
1910 Pacific Ave, Ste 15100
Dallas, Tx 75201
Telephone: (210) 710-7062
Fax: (214) 742-5956

Trial and Appellate Counsel
MS. RYANN ADELE REAUD
Assistant District Attorney
SBOT NO. 24065953
- and -
MS. EMILY RUTH EDWARDS
Assistant District Attorney
SBOT NO. 24069666

                                                           2
TRAVIS COUNTY DA'S OFFICE
509 W. 11th Street
Austin, Texas 78767
Phone: (512) 854-9400
Fax: (512) 854-4206
ATTORNEYS FOR THE STATE




                            3
                                         TABLE OF CONTENTS

Identities of Parties and Counsel………………………………….….....………….2

Table of Contents…………………………………………………………………...4

Index of Authorities………………………………………………………………...4

Statement Regarding Oral Argument……………..………………………………..6

Statement of the Case.....................................……………………………………...6

Issue Presented..........................................................................................................7

Statement of Facts.....................................................................................................7

Summary of Argument............................................................................................13

Argument………………………...………………………………………………..15

          No record exists that shows: a) that the Court gave Appellant adequate
          Faretta warnings before he signed his Waiver of the Right to Counsel,
          or: b) that Appellant’s waiver was made knowingly and
          intelligently………………………………………………………………...17


Conclusion………………………………………………………………………...23

Certificate of Service……………………………………………………………...25

                                             Index of Authorities

Texas Rules of Appellate Procedure 38, et seq…………………………………….6
Texas Rules of Appellate Procedure 39.1………………………………………….6
Texas Rules of Appellate Procedure 44.2………………………………………...14
Texas Rules of Criminal Procedure, Article 1.051……………………………..7, 13
Texas Constitution, Article 1, Section 10………………………………………7, 16
United States Constitution, Sixth Amendment…………………………………7, 16

                                                                                                                         4
                                  Cases

Cordova v. Baca, 346 F.3d 924 (9th Cir.2003)………………………….........18, 19
Faretta v. California, 422 U.S. 806………………………………………...8, 13, 14
Manley v. State, 23 S.W.3d 172, (Tex. App.—Waco 2000)……………….8, 14, 15
United States v. Balough, 820 F.2d 1489 (9th Cir. 1987)……………………...19-21
United States v. Virgil, 444 F.3d 447, (5th Cir. 2006)…………………...,…...22, 23
Williams v. State, 252 S.W.3d 353 (Tex. Crim. App. 2008)……………....16-18, 22




                                                                         5
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

        COMES NOW, Ronnie Hue Montgomery, Appellant in this cause, by and

through his attorney of record, Rickey Jones, and, pursuant to the provisions of

TEX. R. APP. PRO. 38, et seq., files this brief on appeal.

                            Statement Regarding Oral Argument

          Pursuant to Texas Rules of Appellate Procedure 39.1, Appellant requests

oral argument and submits that it would materially aid the decisional process in

this case.

                                      Statement of the Case

Appellant was charged by indictment with the offense of evading arrest with a

vehicle, alleged to have been committed in Travis County, Texas on or about the

31st day of May 2013.1 The entire trial, both the guilt/innocence phase and the

punishment phase, occurred on March 3, 2015.2 Appellant waived his right to

counsel on January 26, 2015. There is no record that shows either that Appellant

received proper Faretta warnings or that his waiver was made knowingly and

intelligently—on or before the day he signed the waiver. The two Faretta warning

events that did take place as a matter of Record, both took place long after

Appellant signed his Waiver of the Right to Counsel; and both events are

1   Reporter’s Record Vol. 3. page 134
2   The entire trial, both phases, are in the Reporter’s Record Vol. 3.
                                                                                    6
reminders that overtly refer to prior warnings that are not in the Record. Hence,

this appeal raises one fundamental issue regarding a Defendant’s right to a fair trial

as guaranteed by the Constitutions of the United States and the State of Texas. Did

Appellant knowingly and intelligently waive his right to counsel after receiving

appropriate Faretta warnings?


                                  Issue Presented

This Appeal raises one critical issue which is governed by Article 1.051 of Texas

Rules of Criminal Procedure, Article 1, Section 10 of the Texas Constitution, and

the Sixth Amendment of the United States Constitution:

    There is no trial court record below that shows Appellant received proper
    Faretta warnings prior to his Waiver of the Right to Counsel or that Appellant’s
    waiver of his right to counsel was knowingly and intelligently asserted.

                                 Statement of Facts

The jury found the defendant, Mr. Montgomery, guilty of the offense of evading

arrest with a vehicle as alleged in the indictment, and assessed his punishment at

confinement in the Texas Department of Criminal Justice Institutional Division for

a period of five years, and assessed a fine of zero dollars. And, further, the jury

found that Mr. Montgomery has never been convicted of a felony in this state or

any other state; and therefore, the jury recommend community supervision.




                                                                                      7
       The single issue this Court must determine is whether, under the particular

facts and circumstances of this case, Appellant made his decision to waive counsel

voluntarily, knowingly, and intelligently after receiving proper Faretta warnings

before he waived his right to counsel. Faretta, 422 U.S. at 835, 95 S. Ct. 2525.

       The key fact here is that there is no record of any Faretta hearing on or

before the day Appellant executed the WAIVER OF RIGHT TO COUNSEL.

Appellant’s WAIVER OF RIGHT TO COUNSEL was signed on the 26th of

January, 2015.3

       Hence, no evidence exists to show either that Appellant was adequately

warned on or before the day the Court granted Appellant’s WAIVER OF

RIGHT OF COUNSEL. Likewise, no evidence exists to establish whether

Appellant’s waiver was made “knowingly, intelligently, and voluntarily” as

required under Faretta.4

       Regarding the facts related to the charge against Appellant, the following

testimony by Appellant at RR Vol 3, 97:21-100:4 covers Appellant’s view of

the incident in question:

    Q All right. Did you know that Officer Borne was trying to stop you?
    A No, I didn't.

3Clerk’s Record, page 49
4Faretta, 422 U.S. at 835, 95 S. Ct. 2525 (citing Von Moltke v. Gillies, 332 U.S. 708, 723-
24, 68 S. Ct. 316, 92 L. Ed. 309 (1948); Adams v. United States ex rel. McCann, 317 U.S.
269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942); Johnson v. Zerbst,304 U.S. 458, 464-65, 58 S.
Ct. 1019, 82 L. Ed. 1461 (1938)).
                                                                                               8
Q Did you see his lights?
A No, I didn't.
Q Did you hear him -- his sirens or hear him talking to you?
A No, I didn't.
Q Okay.
A I heard him talking to me once I pulled over because I was already in my
music.
Q Okay. So you had music playing. Is that correct?
A Yes.
Q And would you say that music was very quiet or very loud?
A It was loud enough for me to contain and no noise on the highway. I like
to ride.
Q You had two children in the car with you?
A Yes. Seat belts -- I make sure they put their seat belts on before we leave
the house. We may not have car seats all the time because I know they
don't need it or they're not a baby. They don't need car seats no more.
Q Were you talking to them while you were driving?
A No. We was all listening to music. We was all bumping together.
Q Okay. What does that mean, "bumping together"?
A We was all driving. We was all just enjoying the ride.
Q Okay. And so when was the first time you were aware that the officer
was behind you?
A When I seen him on Cameron Road exit.
Q Was that after you got off of the highway?
A That was right there on the exit ramp. I was getting ready to look in my
mirror. I seen a vehicle with his lights on. So I said, "I've got to pull over."
And I pulled over to the side. "Okay, man, I've got to go to McDonald's but
he's right there." So I had to pull over because he's behind me.
Q So you saw the video where he was behind you and then he later caught
back up with you and you saw where he turned on his lights and everything
and you stopped immediately. Is that correct?
A Yes. Once I noticed that he was behind me, I immediately pulled over.

                                                                                   9
      Q Okay. Did you try to drive off once you realized he was behind you?
      A No.
      Q Did you do anything to avoid him or evade him?
      A No.
      Q Okay. So you had never seen him before.
      A Never seen him. No, I never seen him.

Due to his indigence, the Court assigned attorney Tom Weber as Appellant’s

stand-by counsel on February 12, 2015.5

         The first record of any Faretta discussion is dated March 2, 2015. Below, for

the Court’s convenience, is the Reporter’s Record of the entire transcript held on

the 2nd day of March, 2015, Vol. 1(A): SUPPLEMENTAL REPORTER’S

RECORD WARNING OF SELF REPRESENTATION, which occurred more than

four weeks after the day when Appellant had officially waived his right to counsel,

which was accomplished on January the 26th of 2015.

         The March 2nd, 2015 hearing begins with a plain statement in the form of a

question by the Court, which shows that the Court is merely reminding Appellant

of some prior event of which there is no record.

Pages 4:6-6:25

      THE COURT: Mr. Montgomery, just to go over with you again, to be clear
      on the record, we are going to begin jury selection at 1:30. Also, I wanted
      to go over one other thing on the record and that is, that—we have
      gone over extensively with you the risks and dangers of representing


5   Clerk’s Record, page 81
                                                                                     10
yourself and you indicated that you still want to represent yourself; is
that correct? (Emphasis added)
MR. MONTGOMERY: Yes, sir.
THE COURT: Even though that is the case and all of the things that I have
gone over with you, I have appointed Mr. Weber to be a stand-in. In the
event that you change your mind and you want representation, I wanted
him to be here for you during the trial and to listen to the trial, so that he
can jump in if at any time you decide you want representation, then he will
be able to represent you. Do you understand that?
MR. MONTGOMERY: Yes, sir.
THE COURT: And you are still going to represent yourself; is that what
you are saying?
MR. MONTGOMERY: Yes, sir.
THE COURT: I need to let you know that in representing yourself, you
have an absolute right to do that. I have warned you against it, because I
think it is a better course to have somebody represent you, but you still say
you want to represent yourself; is that right?
MR. MONTGOMERY: Yes.
THE COURT: So given that, I just have to let you know that during jury
selection and everything, I cannot change the rules for you. You will be
held to the same rules of evidence and same rules of law. Do you
understand that?
MR. MONTGOMERY: Yes.
THE COURT: I can't give you any assistance, and I can't help you out in
any way; however, you can consult with Mr. Weber. But in terms of
questioning witnesses and cross-examining witnesses and conducting voir
dire examination, there can't be no hybrid, like, there can't be a joint effort
between you and Mr. Weber. So if you are representing yourself, you are
representing yourself. Do you understand that?
MR. MONTGOMERY: Yes.



                                                                                  11
      THE COURT: You can consult with Mr. Weber, but you are representing
      yourself, and only one person can be the one questioning the witnesses and
      to stand up and conduct the voir dire examination and select a jury. Do you
      understand that?
      MR. MONTGOMERY: Yes.
      THE COURT: And you still want to do that yourself?
      MR. MONTGOMERY: Yes.
      THE COURT: Okay. So what we are going to do is, be back here a little
      before 1:30 because we will start selecting the jury at 1:30 this afternoon.
      All right?
      MR. MONTGOMERY: Okay.
      THE COURT: Do you have any questions of me?
      MR. MONTGOMERY: No.
      THE COURT: Okay. Why don't you plan to be back here at 1:15, so that
      you can consult with Mr. Weber on any questions that you may have. And,
      again, it can't be a hybrid representation, but at any time you want him to
      represent you, he is here so that he can begin to represent you if that time
      comes that you want him to. Do you understand?
      MR. MONTGOMERY: Yes, sir.
There is, however, immediately prior to voir dire yet another episode where the

Court admonishes Appellant regarding the difficulties of self-representation and

expresses a strong opinion that Appellant should reconsider and allow Attorney

Weber, his assigned stand-by counsel to conduct the trial.6 Nevertheless, all these

warnings came weeks after 24 year old Mr. Montgomery had decided to represent

himself. Undeniably, the above hearings occurred after Appellant signed his

Waiver of the Right to Counsel. Hence, there is no evidence anywhere in the entire
6   See Reporter’s Record Vol. 2 at 5:17-7:16
                                                                                     12
record that shows Appellant’s waiver was "knowing and voluntary" at the time it

was signed.

                                 Summary of Argument

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. Moreover, the right to counsel may be waived; and the

defendant represent himself at trial.7 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.8 (Emphasis added). The question arises: What is the proper test for a valid

waiver of counsel?

       The Faretta requirements are: (1) the appellant makes a "knowing and

intelligent" waiver; and (2) the appellant must be made aware of the "dangers and

disadvantages of self-representation."9 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 as well as the ability to appreciate the

7 Faretta v. California, 422 U.S. 806, 821; 95 S. Ct. 2525, 2534; 45 L.Ed.2d 562 (1975).
8 Manley v. State, 23 S.W.3d 172, 173 (Tex. App. —Waco 2000) citing: 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)).
9 Id. at 173 (citing TEX.CODE CRIM. PROC. ANN. art. 1.051 (Vernon Supp.1999)); Faretta,

422 U.S. at 835, 95 S. Ct. at 2541.
                                                                                            13
practical disadvantage he will confront in representing himself.10 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.11 (Emphasis added).

       While it is not mandatory that the warnings be given in writing—it is

mandatory that the record clearly shows that the defendant understands the

consequences of his waiver.12 The purpose of the "knowing and voluntary"

inquiry is to determine whether the defendant actually does understand the

significance and consequences of his waiver of the right to counsel. As the Faretta

Court held, “…defendant waiving counsel must 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.’”13 Hence, such an

inquiry must be made before the defendant signs such a waiver.

       In the present matter, there is no record of any Faretta warnings given prior

to Appellant executing his Waiver of the Right to Counsel. And, since no Faretta

warning hearing was held before he executed his waiver, likewise there is no

showing in the record that Appellant understood the consequences of his waiver as


10 Id at 173-74 (emphasis added) citing: 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)).
11 Id. at 174
12 Id. at 174 citing: Goffney v. State, 812 S.W.2d 351, 352 (Tex. App.--Waco 1991), aff'd, 843

S.W.2d 583 (Tex.Crim.App.1992).
13 Faretta v. California, (422 U.S. at 835, 95 S. Ct. 2525) quoting Adams v. United States ex rel.

McCann, (317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942)).
                                                                                                14
required by law. Hence, Appellant is entitled to a reversal and remand for a new

trial.

                                          Argument

         No error, other than federal constitutional errors labeled as structural by the

United States Supreme Court, i.e., those involving "fundamental constitutional

systemic requirements," is categorically immune to harmless error analysis.14 The

Supreme Court has defined such requirements in part as those which, when denied,

"defy analysis by 'harmless error' standards;" moreover, a complete denial of

counsel falls within this category.15 Hence, the Manley Court held:

     Allowing a defendant to proceed pro se without properly determining
     whether he has knowingly and intelligently waived his right to counsel is
     as critical as forcing a defendant to proceed to trial without the presence
     of counsel. We believe that the failure to properly admonish a defendant on the
     dangers and disadvantages of self-representation is error involving
     "fundamental constitutional systemic requirements" and is categorically
     immune to a harmless error analysis.16 Thus, we forego any attempt to apply
     Rule of Appellate Procedure 44.2 to this error. (Emphasis added)

In anticipation of the State’s argument in favor of harmless error analysis,

Appellant now provides an analysis of the law that appears to support a harmless

error beyond a reasonable doubt standard in Faretta-warning cases. The key case


14 Id. at 175 citing: Salinas v. State, 980 S.W.2d 219, 219 (Tex.Crim.App.1998); Foster v. State,
8 S.W.3d 445, 446 (Tex. App.--Waco 1999, no pet.) (Citing Ibarra v. State, 11 S.W.3d 189, 197
(Tex.Crim.App.1999)).
15 Id. at 175 citing: Foster, 8 S.W.3d at 446 (citing Arizona v. Fulminante, 499 U.S. 279, 309-10,

111 S. Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)).
16 Id. at 175 citing: Faretta, 422 U.S. at 816-23, 95 S. Ct. at 2532-35; Salinas, 980 S.W.2d at

219.
                                                                                                15
appears to be Williams v. State, 252 S.W.3d 353 (Tex. Crim. App. 2008). The

Williams case was granted review specifically to determine whether the Trial

Court’s refusal to apply a harm analysis was proper; and the Texas Court of

Criminal Appeals held that it was correct in the Williams case to refuse to perform

a harmless beyond a reasonable doubt analysis.17

        First, the Williams Court affirmed that:
     1. “‘[C]ourts indulge every reasonable presumption against waiver’ and ...‘do
        not presume acquiescence in the loss of fundamental rights.’”18
     2. The trial judge is responsible for determining whether a defendant's waiver
        is knowing, intelligent, and voluntary.19
     3. To assess whether a waiver is effective, courts consider—the totality of the
        circumstances.20
     4. This means that courts must examine “the particular facts and circumstances
        surrounding that case, including the background, experience, and conduct of
        the accused."21 (In the present matter, no such examination was conducted.)

Moreover, the Williams Court explicitly affirmed the following:

        A complete denial of the constitutional right to counsel at trial is a structural

defect that affects the framework of the trial.22 When the right to trial counsel has

been violated, prejudice is presumed because the trial has been rendered inherently

unfair and unreliable.23 So although most constitutional errors are subject to a harm

17 Williams v. State, 252 S.W.3d 353, 354 (Tex. Crim. App. 2008).
18 Id. at 356 citing: Zerbst, 304 U.S. at 464, 58 S. Ct. 1019.
19 Id. at 356 citing: Zerbst, 304 U.S. at 465, 58 S. Ct. 1019.
20 Id. at 356
21 Id. at 356 citing: Zerbst, 304 U.S. at 464, 58 S. Ct. 1019.
22 Id. at 357 citing: Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544, 137 L.Ed.2d

718 (1997) (citing Gideon, 372 U.S. at 339-47, 83 S. Ct. 792); Arizona v. Fulminante, 499 U.S.
279, 309; 111 S. Ct. 1246; 113 L.Ed.2d 302 (1991).
23 Id at 357 citing: Satterwhite v. Texas, 486 U.S. 249, 256; 108 S. Ct. 1792, 100 L.Ed.2d 284

(1988); Cronic, 466 U.S. at 659-61, 104 S. Ct. 2039.
                                                                                               16
analysis,24 the complete denial of the right to counsel at trial is not.25 In accord with

this principle, we have recognized that—when the record does not affirmatively

show that the defendant was sufficiently admonished as required by Faretta, it is

reversible error, not subject to a harm analysis.26 (Emphasis added).

       The Williams Court stated: “By holding that Williams’ waiver of her right to

trial counsel was not made knowingly, intelligently, and voluntarily, the court

determined that her waiver was invalid.27 The State does not challenge this

holding, and although it characterizes the error as one involving insufficient

admonishments, the particular error at issue concerns instead an invalid waiver of

the right to counsel.”28



24 Id at 357 citing: Chapman v. California, 386 U.S. 18, 24; 87 S. Ct. 824; 17 L.Ed.2d 705
(1967); Rose v. Clark, 478 U.S. 570, 576-77; 106 S. Ct. 3101; 92 L.Ed.2d 460 (1986) (citing
Delaware v. Van Arsdall, 475 U.S. 673, 684; 106 S. Ct. 1431; 89 L.Ed.2d 674 (1986) ); Rushen
v. Spain, 464 U.S. 114, 118; 104 S. Ct. 453; 78 L.Ed.2d 267 (1983) (per curiam); United States v.
Hasting, 461 U.S. 499, 508-09; 103 S. Ct. 1974; 76 L.Ed.2d 96 (1983); Moore v. Illinois, 434
U.S. 220, 232; 98 S. Ct. 458; 54 L.Ed.2d 424 (1977); Milton v. Wainwright, 407 U.S. 371; 92 S.
Ct. 2174; 33 L.Ed.2d 1 (1972); Chambers v. Maroney, 399 U.S. 42, 52-53; 90 S. Ct. 1975; 26
L.Ed.2d 419 (1970); Hopper v. Evans, 456 U.S. 605, 613-14; 102 S. Ct. 2049; 72 L.Ed.2d 367
(1982); see generally Johnson v. State, 169 S.W.3d 223, 229-33 (Tex.Crim.App.2005).
25 Id at 357 citing: Gideon, 372 U.S. at 339-47; 83 S. Ct. 792; Cronic, 466 U.S. at 659; 104 S. Ct.

2039; see also Clark, 478 U.S. at 578; 106 S. Ct. 3101.
26 Id at 357 citing: Goffney, 843 S.W.2d at 584-85; Powell v. State, 632 S.W.2d 354, 355

(Tex.Crim.App.1982); Johnson v. State, 614 S.W.2d 116, 117-19 (Tex.Crim.App.1981); Lisney
v. State, 574 S.W.2d 144, 145-47 (Tex.Crim.App.1978).
27 Id at 358
28 Id. at 358 and by way of a footnote, the Court advised: See Cordova v. Baca, 346 F.3d 924,

926-27 (9th Cir.2003) (discussing the difference between a defective Faretta colloquy and an
ineffective waiver of the right to trial counsel—and noting the potential application of a harmless
error analysis to a defective Faretta colloquy to find an effective waiver); see also United States
v. Virgil, 444 F.3d 447, 456-47 (5th Cir.2006) (recognizing that a defective waiver colloquy, as
opposed to a defective waiver, may be subject to a harmless error analysis).
                                                                                                17
         However, in its footnote number 38, the Williams Court specifically

identifies the two cases upon which it relies regarding the issue of the rare

exception cases where a Faretta-warning might be subject to a harmless beyond a

reasonable doubt standard: Cordova v. Baca, 346 F.3d 924 (9th Cir.2003) and

United States v. Virgil, 444 F.3d 447 (5th Cir.2006). For the sake of thoroughness,

Appellant will now briefly review this question: Do rare exceptions exist where the

harmless error beyond a reasonable doubt standard would apply in a Faretta-

warning case?

         After fully reviewing the case law cited by the State in its contention that a

harmless error standard applied regarding the short-comings of the Faretta-

warnings at the trial, the Cordova Court rejected all of the State’s examples and

concluded:

       In sum, we conclude that if a criminal defendant is put on trial without
       counsel, and his right to counsel has not been effectively waived, he is
       entitled to an automatic reversal of the conviction. The reason for the
       denial--whether it be an oversight on the part of the court, a failure to
       give proper warning or some other reason--is irrelevant. What matters
       is that the defendant was put on trial without a lawyer though the
       Constitution guarantees him that right. That is the kind of defect in the trial
       process the Supreme Court has told us time and again cannot be
       unscrambled. The Appellate Division's effort to analyze the evidence and
       determine what would have happened, had Cordova been represented by
       counsel, is precisely the kind of inquiry the Supreme Court has said cannot
       be made. Automatic reversal of the conviction is the only lawful remedy.29



29   Cordova v. Baca, 346 F.3d 924, 930 (9th Cir.2003). (Emphasis added)
                                                                                         18
Moreover, the Cordova Court addressed the issue of a 5th Circuit holding that did

find a harmless error analysis applied to defective waiver of counsel; and the

Cordova Court specifically stated that they had “every confidence the Fifth Circuit

will reconsider its position…” The Cordova Court stated:

        All but one of the remaining cases on which the state relies are equally
     unhelpful to its position. Richardson v. Lucas, 741 F.2d 753 (5th Cir.
     1984), did apply harmless error analysis to a case involving a defective
     waiver of the right to counsel, but it preceded the Supreme Court's opinions
     in Rose and Penson, and thus cannot stand for the proposition that Rose and
     Penson are not controlling on this point. Even worse from the state's
     perspective, the only authority Richardson cited was a Tenth Circuit case,
     United States v. Gipson, 693 F.2d 109, 112 (10th Cir. 1982). Gipson was
     subsequently overruled by the Tenth Circuit, relying on the intervening
     authority of Penson. See United States v. Allen, 895 F.2d 1577, 1579-80
     (10th Cir. 1990).
        We have every confidence that the Fifth Circuit will reconsider its
     position in Richardson when it next revisits the issue.30

What is yet more, the Cordova Court cited United States v. Balough as a key

aspect of its enquiry into the propriety of a harmless error analysis in Faretta-

warning cases.31 Hence, here we include, for the Court’s convenience, relevant

portions of the Balough analysis of the harmless error question:

     If a defendant chooses to represent himself, however, his decision must be
     made knowingly and intelligently; that is, a criminal defendant must be
     aware of the nature of the charges against him, the possible penalties, and
     the dangers and disadvantages of self-representation, before his decision to
     waive counsel will be knowing and intelligent.32

30 Id at 927-928.
31 Id at 926-927 citing United States v. Balough, 820 F.2d 1485 (9th Cir. 1987)
32 United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987) citing United States v. Rylander,

714 F.2d 996, 1005 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S. Ct. 2398, 81 L.Ed.2d 355
(1984); Harris, 683 F.2d at 324.
                                                                                               19
While acknowledging a limited exception where the harmless error rule would

apply, the Balough Court stated: Our cases have consistently held, however, that

this "limited exception [is] to be applied in rare cases."33 And the Balough Court

explicitly stated the true focus of enquiry. The Court stated: Throughout this

inquiry, we—must focus on what the defendant understood, rather than on

what the court said or understood.34

        The Balough Court recited the relevant facts; and these facts represent a fact

pattern highly similar, if not identical, to the facts of Appellant’s trial. The Balough

Court noted:

      In the case at bar, the district court did not specifically discuss the three
      elements with Balough at the hearing on his motion to appear pro se.
      Therefore, we must inquire into the record as a whole to determine whether
      Balough nonetheless sufficiently understood the nature of the charges against
      him, the possible penalties, and the dangers and disadvantages of self-
      representation, to waive his right to counsel knowingly and intelligently.35

Moreover, and again, highly similar to Appellant’s trial, the Balough Court then

based its decision on the following facts:

     Nothing in the record indicates that Balough has any legal training, specialized
     education, or unusual background which might make it apparent that he
     possessed a sufficient understanding of the disadvantages of self-representation.
     The government, however, argues that because Balough was assisted by counsel

33 Id at 1488, citing Harris, 683 F.2d at 324; see also Rylander, 714 F.2d at 1005 ("It is an
unusual case where, absent such a colloquy, a knowing and intelligent waiver of counsel will be
found."); Aponte, 591 F.2d at 1250 ("It will be only the rare case ... in which an adequate waiver
will be found on the record in the absence of a specific inquiry by the trial judge.").
34 Id at 1487-88, citing Harris, 683 F.2d at 325; Kimmel, 672 F.2d at 722. (Emphasis added).
35 Id at 1488.


                                                                                                20
     up until the hearing on his motion to waive counsel, and had numerous previous
     felony convictions, he had ample opportunity to observe the advantages of
     representation and acquired extensive experience with the legal process. In
     Kimmel, we held that a well-educated defendant, who was assisted by advisory
     counsel throughout his case, who had been prosecuted several times before and
     had even represented himself in at least one case, could not be deemed to
     understand sufficiently the dangers and disadvantages of self-representation
     absent additional facts such as indicating that he had been informed about the
     risks of self-representation at some point previously. 36

The Balough Court held that:
      As we noted in Kimmel, the mere fact that a criminal defendant has been
      repeatedly exposed to the legal process and has even represented himself
      before cannot, without more, suffice to support a finding of a knowing and
      intelligent waiver. Id. Without some assurance that the defendant has been
      apprised of the dangers and disadvantages of self-representation, we
      cannot say that such a defendant has waived his right to counsel "with
      eyes open."37 (Emphasis added).

Furthermore, the Balough concurring opinion in footnote numbered 2 states:
      Even advanced education in a non-legal field or extensive experience in
      other sophisticated areas cannot suffice to show an adequate understanding
      of the disadvantages of self-representation. “An intelligent professional
      man may well be competent in his field and yet have no understanding of
      the law or legal procedures.” Harris, 683 F.2d at 325 (physician did not
      adequately understand disadvantages of self-representation); see also
      Rylander, 714 F.2d at 1005 (corporate president); Bird, 621 F.2d at 991
      (retired professor).

MR. MONTGOMERY was ONLY 24 YEARS OLD!!! What is yet more, nothing

in the Record indicates that he had any basis for actually understanding the




36Id at 1489, citing Kimmel, 672 F.2d at 722.
37Id. citing Kimmel, 672 F.2d at 722, and Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; Bird, 621
F.2d at 991.
                                                                                               21
consequences of his waiver. Hence, like Balough, Appellant’s case should be

reversed and remanded.

         Finally, the Texas Court of Criminal Appeals in Williams also cited the 5th

Circuit opinion in Virgil for the notion that harmless error analysis is applicable to

some cases.38 The 5th Circuit in Virgil reversed its prior holding on the issue of the

applicability of harmless error analysis in Faretta-warning scenarios. And it stated

exactly where and when harmless error analysis may be applicable. Its reasoning is

clear:

     Even without further discussion, it is sufficiently clear that these Supreme Court
     decisions, among others, have abrogated our holding in Richardson . See
     generally Cordova v. Baca , 346 F.3d 924, 927–28 (9th Cir. 2003) (discussing
     Richardson 's instability after the Supreme Court's decisions in Rose and Penson
     and stating "We have every confidence that the Fifth Circuit will reconsider its
     position in Richardson when it next revisits the issue.").
             To hold now, as our sister circuits have, that this type of Faretta error at
     trial is—insusceptible to harmless error analysis is not necessarily to hold
     that the same error at sentencing could never be harmless. Recognizing the
     distinction, though, we see only imperfect ways of drawing a line between the
     two.39 (Emphasis added).

What is yet more, the Virgil Court explicitly held:
      Richardson is further undercut by the holdings of every other circuit to
      consider the issue, all of which have concluded that harmless error analysis
      is inapplicable to failure-to-warn Faretta violations.40


38 See Williams v. State, 252 S.W.3d 353 (Tex. Crim. App. 2008), at footnote 38 citing United
States v. Virgil, 444 F.3d 447 (5th Cir.2006).
39 United States v. Virgil, 444 F.3d 447, 456 (5th Cir. 2006).
40 Id at 455 citing: See Allen, 895 F.2d at 1579–80; Strozier v. Newsome, 871 F.2d 995, 997 &

n.3 (11th Cir. 1989); United States v. Balough, 820 F.2d 1485, 1490 (9th Cir.1987); United
States v. Welty, 674 F.2d 185, 194 n.6 (3d Cir. 1982).
                                                                                                22
Exactly so in the present matter. Appellant did not receive adequate Faretta-

warnings at any time during his hearing on his pre-trial motion. Appellant did not

get the mandatory 10 day pre-trial preparation period. And there is insufficient

facts in the record to confirm the notion that Appellant had ever, in the underlying

trial or in any prior trial, been adequately admonished regarding the Faretta-

warnings requirements. Hence, the present matter is insusceptible to harmless error

analysis. Therefore, reversal and remand is proper.

                                          Conclusion

What is more fundamental to American Criminal Jurisprudence, under both our

Federal and State Constitutions, than the principle that every human being has an

inalienable right to a fair trial?

      The 5th Circuit has explicitly acknowledged that every other Federal Circuit

Court to consider the issue has concluded that “…harmless error analysis is

inapplicable to failure-to-warn Faretta violations.41 (Emphasis added). As

Benjamin Disraeli noted, “Justice is truth in action.” Given the facts of this case, in

the light of governing precedents, in keeping with our nation's commitment to

justice, and to honor our oaths to support and uphold the Constitution, this Court

should reverse and remand this case for a new trial.

41United States v. Virgil, 444 F.3d 447, 455 (5th Cir. 2006), citing: See Allen , 895 F.2d at 1579–
80; Strozier v. Newsome , 871 F.2d 995, 997 & n.3 (11th Cir. 1989);
United States v. Balough, 820 F.2d 1485, 1490 (9th Cir.1987); United States v. Welty , 674 F.2d
185, 194 n.6 (3d Cir. 1982).
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                                     Respectfully submitted,
                                     Rickey Jones
                                     1910 Pacific Ave, Ste 15100
                                     Dallas, Texas 75201
                                     210 710 7062
                                     866 589 0541 facsimile




                                     By:
                                       Rickey Jones
                                       State Bar No. 00787791
                                       Attorney for Ronnie Montgomery




                             Certificate of Service
      This is to certify that on December 10, 2015, a true and correct copy of the
above and foregoing document was served on the Travis County District Attorney's
Office, 509 W. 11th Street Austin, Texas 78767 by facsimile transmission.




                                     Rickey Jones




                                                                               24
                      CERTIFICATE OF COMPLIANCE
Appellant’s Brief is in compliance with Rule 9.4 of the Texas Rules of Appellate
Procedure with a word count of 5,792 and Times New Roman typeface no smaller
than 14-point font.




                                      Rickey Jones




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