                                   NO. 07-07-0122-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  JULY 27, 2009
                         ______________________________

                     MARK ANTHONY CASTANEDA, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B15951-0503; HONORABLE ED SELF, JUDGE
                       _______________________________


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


                               MEMORANDUM OPINION


       Appellant Mark Anthony Castaneda appeals from his adjudication of guilt for the

offense of theft and his resulting sentence of confinement in the State Jail Division for a

period of two years. Through two points of error, appellant contends he did not waive his

right to counsel knowingly and intelligently and was not made aware of the dangers and

disadvantages of proceeding pro se. We reverse and remand.
                                        Background


       In July 2005, appellant, with the assistance of counsel, entered into a plea

agreement with the State by which appellant plead guilty to the offense of theft,1 and was

placed on deferred adjudication community supervision.2 In January 2007, the State filed

a motion to proceed with adjudication of guilt. Appellant was arrested on February 9 for

driving with a suspended license. On March 12, the State filed an amended motion to

proceed with adjudication of guilt, setting forth several violations by appellant of the terms

of his community supervision. The violations alleged included the February 9 offense and

use of cocaine and alcohol in February 2006, and included allegations appellant failed to

report, failed to pay restitution and fees and failed to complete community service. The

record contains a February 22 “order to appear” requiring appellant to appear on March 5

to “report on his attorney.” There is no reporter’s record of the March 5 appearance, but

the court’s docket sheet contains an entry stating that appellant appeared on that date, and

“states he does not want an attorney and wants to represent himself.”


       A hearing on the amended motion to adjudicate guilt was conducted on March 26.

At the outset of the hearing, the following exchange occurred:




       1
        See Tex. Penal Code Ann. § 31.03 (Vernon 2005). This is a state jail felony
punishable by confinement in a state jail facility for any term of not more than two years or
less than 180 days and a fee of not more than $10,000. Tex. Penal Code Ann. §
31.03(4)(A); Tex. Penal Code Ann. § 12.35 (Vernon 2007).
       2
           See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon 2007).

                                              2
       Q. (By the Court)    Now, Mr. Castaneda, you wish to represent yourself in the
                            hearing on this matter. Is that correct?
       A. (Appellant)       Yes, Your Honor.
       Q.                   Do you understand that you will be bound by the same rules
                            that a lawyer would be bound by?
       A.                   Yes, Your Honor.
       Q.                   And you still wish to proceed?
       A.                   Yes, Your Honor.


       Appellant then pled true to each of the allegations in the State’s motion and the

court proceeded to punishment, adjudicating appellant guilty and sentencing him to two

years in the State Jail Division of the Texas Department of Criminal Justice. This appeal

followed.3


                                          Analysis


       Via two points of error, appellant contends: (1) that he did not knowingly and

intelligently waive his right to counsel and thus, was denied his constitutional right to the

effective assistance of counsel; and (2) appellant was not made aware of the dangers and

disadvantages of representing himself to establish that his choice to represent himself was

made with “eyes open.”




       3
       Appellant’s adjudication of guilt occurred before the effective date of the statutory
amendment permitting appeal of adjudications following deferral. See Act of May 28,
2007, 80th Leg., R.S., S.B. 909, amending Tex. Code Crim. Proc. Ann. art 42.12, § 5
(Vernon 2006), effective June 1, 2007. We will construe appellant’s issues to apply to the
assessment of punishment and pronouncement of sentence. See Rodriguez v. State, 972
S.W.2d 135138 (Tex.App.–Texarkana 1998, aff’d on other grounds, 992 S.W.2d 483
(Tex.Crim.App. 1999)) (recognizing appealability of punishment under former law).

                                             3
       The right to be represented by counsel at a criminal trial is a fundamental right

guaranteed by the Sixth Amendment to the United States Constitution. U.S. Const. amend.

VI, XIV; see Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975); see also Williams v. State, 252 S.W.3d 353, 355-56 (Tex.Crim.App.2008). The right

to counsel 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).

The same right attaches in a hearing on a motion to proceed to final adjudication following

a deferred adjudication. Thompson v. State, 626 S.W.2d 750, 753 (Tex.Crim.App. 1981).


       The Sixth Amendment also contains the reciprocal right to self-representation, but

that right does not attach until it is clearly and unequivocably invoked by the defendant.

Faretta, 422 U.S. at 818-20; Williams, 252 S.W.3d at 356. When a defendant asserts the

right to represent himself, the trial court must admonish the defendant about the dangers

and disadvantages of self-representation. Faretta, 422 U.S. at 835 (upon invocation of the

right of self-representation, a defendant “should 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 his eyes open’”); see Tex. Code Crim. Proc. Ann.

art. 1.051(g) (Vernon Supp.2008) (stating that the court “shall advise the defendant of the

nature of the charges against [him] and, if the defendant is proceeding to trial, the dangers

and disadvantages of self-representation”). That a defendant represents to the trial court

he is informed of his right to counsel, and desires to waive it, does not end the court's

responsibility. Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984). Although

there is no formula for the required inquiry, the Court of Criminal Appeals has been explicit


                                             4
that proper admonishments concerning pro se representation must appear on the record.

See Goffney v. State, 843 S.W.2d 583, 584-85 (Tex.Crim.App.1992) (citing Blankenship,

673 S.W.2d at 583); see also Hatten, 71 S.W.3d at 334 (discussing Goffney).


         The Court of Criminal Appeals has stated the trial judge must inform a defendant

desiring to represent himself “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)).       Here, the trial court’s inquiry concerning appellant’s self-

representation at the revocation hearing included that admonition. But it is the only

admonition that appears on the record.


         As noted, the trial court brought appellant to the courtroom some three weeks

before the revocation hearing for the express purpose of inquiring into his representation

by counsel. It is clear to us from the record of the March 26 revocation hearing that the trial

court by then was familiar with appellant’s decision to represent himself. We are confident

the court conducted on March 5 the kind of “penetrating and comprehensive inquiry” into

appellant’s decision to represent himself that case law requires. Blankenship, 673 S.W.2d

at 583; Fulbright v. State, 41 S.W.3d 228, 234 (Tex.App.–Fort Worth 2001, pet. ref’d).

Unfortunately, we do not have a record of that hearing beyond the court’s docket sheet

entry.


         The State relies on the holding of Hatten, 71 S.W.3d at 334, distinguishing between

defendants who contest their guilt and those who appear without an attorney to plead guilty


                                              5
or nolo contendere. But the Court of Criminal Appeals limited that holding to misdemeanor

defendants. Id. (“The requirements of Faretta are not invoked by a misdemeanor defendant

who waives his right to representation by counsel and does not contest his guilt”). We are

unable to find an instance in which the distinction has been applied to a felony conviction,

and we decline to extend the holding to appellant.


       Finding the record does not contain a showing appellant was admonished about

the dangers and disadvantages of self-representation before he undertook to represent

himself at the hearing on revocation and punishment, we sustain his second issue. Our

disposition of the second issue makes unnecessary our consideration of appellant’s first

issue. We reverse the trial court’s judgment as to punishment and remand for punishment

proceedings consistent with this opinion.4




                                                 James T. Campbell
                                                      Justice

Do not publish.




       4
        See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon 2006) (version in effect at
the time of the adjudication of appellant’s guilt). See also Act of May 28, 2007, 80th Leg.,
R.S., S.B. 909, amending Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon 2006),
effective June 1, 2007.

                                             6
