                                  NO. 07-07-0438-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                 DECEMBER 29, 2008

                         ______________________________


                       MICHAEL ANTHONY DIAZ, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

          FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

                 NO. CR-07F-105; HON. ROLAND SAUL, PRESIDING

                        _______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Michael Anthony Diaz, appeals his conviction for assault on a public

servant, enhanced by two prior felony convictions, and subsequent sentence of 25 years

confinement in the Institutional Division of the Texas Department of Criminal Justice.

Through two issues, appellant contends that he did not execute a voluntary waiver of his

right to assistance of counsel and that he was denied the right to assistance of counsel.

We disagree and affirm the judgment of the trial court.
                           Factual and Procedural Background


       Appellant was arrested for the offense of public intoxication. During the booking

procedure, appellant was accused of punching a jailer. As a result of this allegation,

appellant was indicted for assault on a public servant.


       After indictment, appellant executed an affidavit regarding his financial status. As

a result of this affidavit, the trial court found appellant indigent and, on July 3, 2007,

appointed counsel to represent appellant. Appointed counsel subsequently filed a waiver

of arraignment on behalf of appellant on July 20, 2007. Between that date and October

5, 2007, trial counsel filed a number of pre-trial motions on behalf of appellant, including

a motion to recuse the trial judge. Ultimately, after a two day hearing, the motion to recuse

was denied and the matter was set for trial to begin on October 9, 2007. During a pre-trial

hearing on October 5, 2007, appellant, for the first time, requested that the trial court

relieve his appointed attorney. During a colloquy with the court regarding the dismissal of

trial counsel, appellant stated that he had no legal training, though he had studied law a

little while in prison. Ultimately, appellant stated to the trial court that he could not

represent himself and the issue of dismissing appellant’s trial counsel was resolved.


       On October the 9th, immediately before jury selection was scheduled to begin,

appellant again asked to dismiss his trial counsel, however, this time appellant opined that

he could represent himself. During the colloquy that followed, the trial court inquired about

the extent of appellant’s formal education. Appellant replied that he went to the 11th grade

in school but had completed his GED while in prison. Further, appellant stated that he


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studied at Lee College while in prison and was a certified HVAC technician. Appellant then

professed that he knew he was not a paralegal but that he felt he could represent himself

better on this case because he knew what happened. The trial court continued the inquiry

by asking appellant if he knew anything about jury voir dire. Appellant responded that he

would talk to the jury about where they worked, if they were prejudiced, and if they had

ever served on a jury. The trial court then advised appellant that there were a number of

procedures that would come into play during the trial, such as opening statements, cross-

examination of witnesses, and the rules of evidence. The trial court advised appellant that

these procedural and evidentiary matters take years to master and that he would be at a

severe disadvantage. During this admonition, the trial court advised that he had seen a

number of defendants try to represent themselves and, in every case, self-representation

turned out to be a disaster for the defendant. Yet, appellant continued to insist on the right

to represent himself. Finally, the trial court continued to point out the danger of self-

representation and the fact that appellant would have to be held to the same standard that

a licensed attorney was held to. The trial court stated that the court could not assist

appellant and that he would have to make his own objections and decisions. Appellant still

insisted on representing himself. Toward the conclusion of the hearing on appellant’s right

to self-representation, appellant appeared to ask to have his appointed lawyer start the

case and, if appellant did not like the job the appointed lawyer was doing, appellant could

take over the representation. The trial court advised appellant that the court could not

permit a hybrid representation. The appellant then stated he was going to represent

himself.



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       The trial court advised he would permit appointed counsel to sit at counsel table as

standby attorney, however, he would not be allowed to participate as long as appellant

insisted on representing himself.     The jury panel was brought in and voir dire was

conducted with appellant conducting his own voir dire. Opening statements were made

with appellant again representing himself during this portion of the trial. After the State’s

first witness completed direct examination, appellant attempted to cross-examine the

witness, but drew numerous objections from the State. At this time, appellant requested

the trial court to allow standby counsel to take over the representation. The trial court

permitted standby counsel to assume the representation, but admonished appellant that

there was to be no further switching back to self-representation.


       The jury subsequently convicted appellant and found that both enhancement

paragraphs were true. The jury returned a punishment verdict of confinement for 25 years

and the trial court subsequently entered a judgment in conformity with the verdict.


       Appellant appeals the trial court’s judgment by contending that he did not effectively

waive his constitutional right to counsel and that the trial court’s refusal to allow both he

and his counsel to be heard denied him his right to assistance of counsel. We disagree.


                                    Waiver of Counsel


       By his first issue, appellant contends that the trial court erred in allowing appellant

to begin the case representing himself. The essence of appellant’s argument is that the

trial court did not properly admonish appellant about the dangers of self-representation

and, therefore, appellant did not effectively waive his right to counsel.

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       Initially, we observe that a criminal defendant has a constitutional right to represent

himself at trial. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975). However, before allowing a criminal defendant to represent himself, the trial

court must take certain steps to ensure that the defendant’s decision is made 1)

competently, 2) knowingly and intelligently, and 3) voluntarily. Id. The law does not require

that the defendant have the skill or experience of an attorney, however, the defendant must

be made aware of the dangers and disadvantages of self-representation in order to

competently and intelligently make the choice. Id. Texas adheres to the same type of

analysis in determining whether a criminal defendant has properly waived his right to

counsel. See TEX . CRIM . PROC . CODE ANN . art. 1.051(g) (Vernon 2005); Collier v. State,

959 S.W.2d 621, 626 (Tex.Crim.App. 1997). Additionally, the record should demonstrate

that the defendant was not coerced for there to have been a voluntary waiver of the right

to an attorney. Collier, 959 S.W.2d at 626.


       There is no courtroom script or formula for the trial judge to recite when a criminal

defendant requests to represent himself. See Blankenship v. State, 673 S.W.2d 578, 583

(Tex.Crim.App. 1984). The trial judge cannot sit idly by when a criminal defendant

requests to represent himself, rather, the trial judge must actively participate in assessing

the defendant’s waiver of counsel. Id. We must review the entire record and the totality

of the circumstances to ascertain if the criminal defendant’s waiver of his right to counsel

was properly made. Id.


       In the case before this Court, the trial judge initially inquired about appellant’s

education. Appellant advised that although he only went to the 11th grade in school, he

                                              5
had completed his GED. Further, appellant advised he had obtained further technical

education while in prison. The trial court went to great lengths to admonish appellant about

the dangers of self-representation. In fact, the record affirmatively reflects that the trial

court attempted to talk appellant out of the decision to represent himself. Under such a

scenario, we cannot say that appellant did not effectively waive his right to counsel.

Faretta, 422 U.S. at 835; Collier, 959 S.W.2d at 626. Accordingly, appellant’s first issue

is overruled.


                                     Denial of Counsel


       Appellant’s second issue seems to contend that the trial court erred by not allowing

both appointed counsel and appellant to conduct the initial voir dire, opening statement,

and cross-examination of the first witness. To support this proposition, appellant cites the

Court to the Texas Constitution and the Texas Code of Criminal Procedure. See TEX .

CONST . art. 1, § 10; TEX . CRIM . PROC . CODE ANN . art. 1.05 (Vernon 2005). However,

appellant’s analysis of the constitutional and statutory provisions ignores a long standing

holding by the Texas Court of Criminal Appeals that an appellant has no right to hybrid

representation. See Landers v. State, 550 S.W.2d 272, 280 (Tex.Crim.App. 1977). The

right to be “heard by himself, or counsel, or both” that appellant contends means he could

have a form of hybrid representation has been construed by the Texas Court of Criminal

Appeals to mean the right to present his side of the story, but not to hybrid representation.

Id. at 278. Appellant has not furnished this Court with any authority to allow the type of

hybrid representation discussed in his second issue and we have found none. Accordingly,

appellant’s second issue is overruled.

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                                      Conclusion


      Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                  Mackey K. Hancock
                                       Justice

Do not publish.




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