                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00230-CR

WILLIAM RESTO,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F39156


                           MEMORANDUM OPINION


     Resto appeals his convictions for two counts of sexual assault of a child and two

counts of indecency with a child by sexual contact, the punishment being enhanced to

that for a first-degree felony by Resto’s prior felony adjudication. See TEX. PENAL CODE

ANN. § 12.42(b), (f) (Vernon Supp. 2007), § 21.11(a)(1), (c) (Vernon 2003), § 22.011(a)(2)

(Vernon Supp. 2007). We affirm.

     In one issue, Resto contends that the trial court erred in allowing Resto to represent

himself at trial. Resto moved the trial court to allow Resto to “[r]epresent [him]self with

legal counsel,” that is, appointed standby counsel. (21 R.R. at 4.) The trial court granted
Resto’s motion.1 Resto is represented by appointed counsel on appeal. We understand

that Resto complains that the trial court did not, sua sponte, make “further inquiry” into

Resto’s competence to represent himself at trial. (See Br. at 11.)

     The Sixth Amendment provides, “In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST.

amend. VI. But “the Sixth and Fourteenth Amendments” also “include a ‘constitutional

right to proceed without counsel when’ a criminal defendant ‘voluntarily and

intelligently elects to do so.’” Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008) (quoting

Faretta v. California, 422 U.S. 806, 807 (1975) (emphasis in Faretta)); see U.S. CONST.

amend. XIV, § 1.

     The United States Supreme Court held in Faretta v. California, “When an accused

manages his own defense, he relinquishes, as a purely factual matter, many of the

traditional benefits associated with the right to counsel. For this reason, in order to

represent himself, the accused must ‘knowingly and intelligently’ forego those

relinquished benefits.” Faretta, 422 U.S. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458,

464-65 (1938)); see Edwards, 128 S. Ct. at 2383. The Texas Court of Criminal Appeals has

held in Martin v. Texas, “Faretta does not mandate . . . an inquiry concerning [the]

appellant’s age, education, background, or previous mental health history in every




         1 We assume without deciding that Resto preserved his complaint for appellate review. See TEX.

R. APP. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Cameron v. State, 241 S.W.3d
15, 22 (Tex. Crim. App. 2007); Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Buchanan v. State,
207 S.W.3d 772, 775 (Tex. Crim. App. 2006); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005);
Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004); Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim.
App. 1997).

Resto v. State                                                                                        Page 2
instance where an accused expresses a desire to represent himself, for the record may

otherwise be sufficient to make ‘an assessment of his knowing exercise of the right to

defend himself.’” Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982) (quoting

Faretta at 836) (emphasis omitted) (some internal quotation marks omitted).

     Resto relies primarily upon the United States Supreme Court’s opinion in Indiana v.

Edwards. See Edwards, 128 S. Ct. 2379. In Edwards, the Supreme Court holds that “the

Constitution does not forbid a State . . . to insist” that a “defendant proceed to trial with

counsel, the State thereby denying the defendant the right to represent himself.” Id. at

2381. Resto concedes “that the Edwards case does not explicitly provide for a new legal

standard for pro se criminal defendants.”        (Br. at 11.)   Resto nonetheless argues,

“arguing in the obverse, Edwards would seem to indicate that further inquiry, of the

very sort the Court Criminal Appeals found unnecessary in Martin, should be

undertaken by trial judges in instances where criminal defendants whose competence is

in doubt . . . seek to represent themselves.” (Id.); see Martin, 630 S.W.2d 952.

     Under the United States Constitution, “a State may . . . permit a gray-area

defendant,” that is, a defendant who satisfies Dusky v. United States’s standard for

mental competence but might not satisfy some higher standard, “to represent himself.”

Edwards, 128 S. Ct. at 2385 (citing Godinez v. Moran, 509 U.S. 389 (1993)) (emphasis

omitted); see Dusky v. United States, 362 U.S. 402 (1960). Edwards does not overrule or

even challenge that prior law. See Edwards at 2388. Edwards does, however, expressly

decline to adopt a different standard. Id.



Resto v. State                                                                         Page 3
       Resto does not suggest how the trial record is not sufficient for the trial court to

make an assessment of Resto’s knowing exercise of the right to defend himself. 2 Most of

what Resto points to as reasons Resto was not mentally competent to represent himself,

for example, his reference to his prior adjudication during his examination of the venire

panel, concerns instead Resto’s “technical legal knowledge,” which Edwards expressly

holds “not relevant” to the mental-competence evaluation. See Edwards, 128 S. Ct. at

2385 (quoting Moran, 509 U.S. at 400; Faretta, 422 U.S. at 836); see Edwards at 2386-87.

The trial court had before it the reports of psychological examinations of Resto’s sanity

and his mental competence for trial. Those reports consider most of the Martin factors

that Resto urges us to require the trial court to inquire into. See Martin, 630 S.W.2d at

954.

       Resto does not show that the trial court erred in granting Resto’s motion to

represent himself. We overrule Resto’s issue.

       Having overruled Resto’s sole issue, we affirm.



                                                    TOM GRAY
                                                    Chief Justice




         2   The trial court found:
         Defendant clearly and unequivocally declared that he wanted to represent himself.
         Defendant wished to waive his right to counsel.
         Defendant’s waiver is voluntarily and intelligently made.
         The Court advised Defendant of the dangers and disadvantages of self-representation.
         The Court advised Defendant that he would be required to follow trial procedure.
(1 C.R. at 201.)

Resto v. State                                                                                  Page 4
Before Chief Justice Gray,
    Justice Vance, and
    Justice Reyna
Affirmed
Opinion delivered and filed September 17, 2008
Do not publish
[CRPM]




Resto v. State                                   Page 5
