                      PD-0552-15
                                                            June 12, 2015
                             NO. 24442-A

                                IN THE

                   COURT OF CRIMINAL APPEALS

                              OF TEXAS

                          DANNY CALAMACO,
                             PETITIONER

                                  V.

                       THE STATE OF TEXAS,
                          RESPONDENT


             PETITION FOR DISCRETIONARY REVIEW
                      NO. 11-13-00066-CR
                          COURT OF APPEALS
                FOR THE 11TH DISTRICT OF TEXAS
                            AT EASTLAND


                On appeal from Cause Number 24442-A
           In the 42nd District Court of Taylor County, Texas
            Honorable John W. Weeks, Judge Presiding
  _______________________________________________________

Paul W. Hanneman                       James Eidson
Attorney for Petitioner                District Attorney Taylor County
SBN: 08925500                          300 Oak Street
1305 Lamar Street                      Abilene, Texas 79602
Sweetwater, Texas 79556                325-674-1261
325-235-4777                           325-674-1306 - Fax
325-235-4777 – Fax
pwhlawoffice@gmail.com


                                                                            1
Lisa McMinn                           11th Court of Appeals Clerk
State Prosecuting Attorney            Sherry Williamson
P.O. Box 13046                        P.O. Box 271
Austin, Texas 78711                   Eastland, Texas 76448

                   ORAL ARGUMENT REQUESTED

                        TABLE OF CONTENTS

                                                            PAGE

INDEX OF AUTHORITIES …………………………………………….                       3

STATEMENT REGARDING ORAL ARGUMENT …………………..                   4

STATEMENT OF THE CASE …………………………………………                        4

STATEMENT OF PROCEDURAL HISTORY ……………………….                    5

GROUNDS FOR REVIEW ……………………………………………… 5,6

STATEMENT OF FACTS ………………………………………………                         7

ARGUMENTS AND AUTHORITIES ………………………………. 9,14,16

PRAYER FOR RELIEF …………………………………………………                        23

CERTIFICATE OF SERVICE ...………………………………………..                  24

APPENDIX ……...………………………………………………………..                        26




                                                                    2
                          INDEX OF AUTHORITIES

CASES
Davis v. State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347
(Feb. 27, 1974 Supreme Court of United States) ……...............................19
United States v. Gonzales-Lopez; 548 U.S. 140, 126 S. Ct. 2557, 165
L.Ed.2d 409 (June 26, 2006 Supreme Court of United States)…………... 22
Faretta v. State of California; 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(June 30, 1975)…………………………………………………… 9,10,12,14,20
Gobert v. Court of Criminal Appeals of Texas; 717 S.W.2d 21
(Tex.Crim.App. 1986)……………………………………………………… 20,21
Davis v. State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007)............... 22
Williams v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)..10,14,22
Johnson v. United States; 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718
(May 12, 1997 Supreme Court of United State)………………………... 19,13
Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657
(Supreme Court of the United States May 1984)……………………….…. 19
Medley v. The State of Texas; 47 S.W.3d 17 (Tex.App. – Amarillo 2000).19
Arizona v. Fulminante;499 U.S. 279, 111 S.Ct.1246, 113 L.Ed.2d 302.19,22
Adams v. United States ex rel. McCann; 317 U.S. at 279, 63 S.Ct., at 242.9
Powell v. State; 632 S.W.2d 354, 355 (Tex. Crim. App 1582) …….…. 10,20
Lewis v. State; 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6, 2014)
(mem. Op., not designated for publication), pet. granted, (Tex. Crim App.
Sept. 17, 2014) (No. PD-0307-14)……………………………………..……. 16
Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland
2015)…………………………………………………………. 5,6,8,13,16,18,21
Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023……………..… 9
Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 (1986).19
Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54, 79
L.Ed.2d 122 (1984)………………………………………………………….... 19
Heredia v. State, 528 S.W.2d 847 (Tex. Crim. App. 1975)…………… 20,21
Sullivan v. Louisiana, 508 U.S. 275, 282…………………………………… 22


RULES AND STATUTORY PROVISIONS
TEX.R.App.Pro.66, et seq. …………………………………………………... 4
TEX.CODE.CRIM.PROC.Art 1.051 ………………………………………… 4




                                                                                3
             STATEMENT REGARDING ORAL ARGUMENT


      In the event this petition is granted, the Petitioner requests oral

argument. Argument would assist the Court because resolution of the

grounds for review depends upon a detailed exploration of the facts of the

case. Further, oral argument would provide this Court with an opportunity to

question the parties regarding their positions.

      Appellant has raised important questions of first impression in this

Court and believes that oral argument would help clarify the issues

presented in his petition for discretionary review. Therefore, he respectfully

requests oral argument.



TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL
APPEALS:


      COMES NOW, DANNY CALAMACO, Appellant in this cause, by and

through his attorney of record, Paul W. Hanneman, and, pursuant to the

provisions of TEX.R.App.Pro.66, et seq., moves this Court to grant

discretionary review, and in support will show as follows.



                        STATEMENT OF THE CASE




                                                                             4
      Appellant was indicted in Cause No. 24,442-A for Murder, with a

deadly weapon allegation and enhanced in a second paragraph with three

prior felony convictions (CR, Vol. 1, 7; 8). On January 24, 2013 the jury

found Appellant guilty (CR, Vol. 1, p. 177) and the Court assessed

punishment at Life confinement in the State penitentiary (CR Vol. 1, p 184;

RR vol. 11, p. 9). Appellant gave timely notice of appeal on February 22,

2013 (CR Vol. 1, p. 194) and also filed a Motion for New Trial (CR Vol. 1, p.

189-193) which, after a hearing was overruled on April 05, 2013 (CR Vol. 1,

p. 204; RR Vol. 12, p. 45).



                STATEMENT OF PROCEDURAL HISTORY



      The conviction was affirmed in an opinion designated for publication

by the 11th District Court of Appeal. Calamaco v. State, No. 11-13-00066-

CR (Tex. App. Eastland 2015), delivered April 09, 2015. Appellant

requested an extension of time to file a PDR, which was granted. This

petition is due on June 10, 2015, and therefore, it is timely filed.



                        GROUND FOR REVIEW ONE




                                                                              5
      The Court of Appeals erred when it found that Appellant was properly

admonished regarding his waiver of counsel and granted Appellant’s

waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-

00066-CR, 11th Court of Appeals April 9, 2015, at page 7.



                       GROUND FOR REVIEW TWO



      The Court of Appeals erred when it found that Appellant entered a

knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v.

State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.



                      GROUND FOR REVIEW THREE



      The Court of Appeals erred when, although it correctly found that the

trial court erred by depriving Appellant of counsel during voir dire, it then

incorrectly found the error to be non-structural error and further erred by

applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v.

State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 9.



                          STATEMENT OF FACTS



                                                                                6
      Prior to Voir Dire in his trial on the charge of Murder in this cause,

immediately after his plea of “Not Guilty” was entered, Appellant, who at the

time was represented by court-appointed counsel, Monte Sherrod,

requested that he be allowed to represent himself. (RR, Vol. 7, p. 8). The

Trial Judge examined Appellant regarding his qualifications. The Court

informed Appellant that if Appellant waived his right to counsel and

represent himself instead, that Appellant could change his mind. The Court

told Appellant “You understand that you can change your mind?” (RR, Vol.

7, p. 13). The trial court judge went further to say; “I mean, if you were to

start to represent yourself you could say, well, this is going not like I

thought it would. It’s harder than I thought it would be. I want to change my

mind and tell the Judge and let Mr. Sherrod start representing me. You

understand that?” (RR, Vol. 7, P. 13).

      The trial court judge further admonished Appellant, before the waiver:

            “Now listen, I told you you could change your mind. So

            be sure and tell me. Don’t just sit there and suffer. It’s not

            necessary. Okay? Because you’re going to be missing a

            lot of things. And you’ve never done a voir dire and you

            don’t even know what to say to them.” (RR, Vol. 7, p. 16)




                                                                                7
      The Trial Judge granted Appellant’s motion to let Appellant represent

himself and brought the jury in. (RR, Vol. 7, p. 18). During his presentation

of the defense’s portion of voir dire, Appellant did in fact change his mind

and asked the Court to “remove my motion to represent myself and ask for

Mr. Sherrod’s representation.” (RR, Vol. 7, p. 60). Appellant stated that he

wanted his attorney to do the voir dire. (RR, Vol. 7, p. 60). The Trial Judge

refused Appellant’s request, and did not let Mr. Sherrod start representing

Appellant but instead required Appellant to complete voir dire before the

Court would allow Appellant to have counsel represent him before the jury.

Mr. Sherrod did not take part in voir dire due to the Trial Judge’s failure to

rule consistently with the admonishment he gave Appellant except that he

was present on “standby”.



                 GROUND FOR REVIEW ONE RESTATED



      The Court of Appeals Erred when it found that Appellant was properly

admonished regarding his waiver of counsel and granted Appellant’s

waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State, No. 11-13-

00066-CR, 11th Court of Appeals April 9, 2015, at page 7.




                                                                                 8
                                ARGUMENT



      Review of Ground For Review One is proper because the Court of

Appeals decision has decided an important question of state and federal

law that has not been, but should be settled by the Court of Criminal

Appeals.

      Review of Ground For Review One is proper because the Court of

Appeals has decided an important question of state and federal law in a

way that conflicts with the applicable decisions of the Court of Criminal

Appeals and the Supreme Court of the United States.

      The Court of Appeals found that the trial court adequately

admonished the Appellant regarding the possible consequences of the

waver of counsel so that Appellant could enter a knowing and intelligent

waiver. In Faretta v. California the U.S. Supreme Court ruled that to waive

the right to counsel the accused must “knowingly and intelligently” forgo

that right, citing, Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023.

To that end, the trial court must make the defendant “aware of the dangers

and disadvantages of self-representation, so that he knows what he is

doing and his choice is made with eyes open”, citing Adams v. United

States ex rel. McCann, 317 U.S. at 279, 63 S.Ct., at 242. Faretta v.



                                                                              9
California 422 U.S. 806 at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562. Faretta

established that part of making the record establish that the defendant

knows what he is doing and his choice is made with eyes open is

admonishing the defendant that he would be required to follow all the

“ground rules” of trial procedure.

      The Texas Code of Criminal Procedure provides, in part, that in such

circumstances the trial court shall “advise” the defendant of the “dangers

and disadvantages of self representation”. Tex. Code Crim. Proc. Art.

1.051(g).

      When the record does not affirmatively show that the defendant was

sufficiently admonished before defendant’s waiver of counsel is allowed as

is required by Faretta, it is reversible error not subject to harm analysis.

Williams v. State, 252 S.W.3d 353, Powell v. State, 632 S.W.2d 354, 355

(Tex. Crim. App 1582)

      At Appellant’s trial the judge advised Appellant, before allowing him to

represent himself, that Appellant could change his mind even if he were to

start representing himself, that he could tell the judge and “let Mr. Sherrod

start representing” Appellant. The Court’s advise referred to Appellant

changing his mind during the voir dire process when he told Appellant:




                                                                               10
              “Now listen, I told you you could change your mind. So be

        sure and tell me. Don’t just sit there and suffer. It’s not

        necessary. Okay? Because you’re going to be missing a

        lot of things. And you’ve never done a voir dire and you

        don’t even know what to say to them.” (RR, Vol. 7, p. 16)

        But when, following the procedure the judge outlined, Appellant

attempted voir dire on his own and changed his mind, the judge would not

let him have his lawyer back to do voir dire. It is clear from the record that

Appellant believed that the judge would let Mr. Sherrod finished the voir

dire.

              “THE DEFENDANT: That’s fine. At this time I would like to

              move the court to remove my motion to represent myself and

              ask Mr. Sherrod’s representation.

              “THE COURT: Do you want him to do the voir dire?

              “THE DEFENDANT: Yes, sir.”

(RR Vol. 7, p. 60)

        The judge erroneously told Appellant “I can’t” allow Appellant to have

his attorney address the jury on voir dire. (RR Vol. 7, p. 60).

        It was not until voir dire was completed, that the judge allowed Mr.

Sherrod to actively participate in the trial by agreeing to excase some



                                                                                 11
potential jurors, then, a jury was sworn and the court recessed for lunch.

When the court re-convened, Appellant once again requested that he be

allowed to “withdraw my motion for self-representation”. The mixed signals

and erroneous instructions to Appellant evidentially confused him about his

right. Mr. Sherrod represented Appellant to the conclusion of the trial.

      The issue to be before the Court of Criminal Appeals is that when the

trial court gives such misleading advise (intentionally or not) does that

advise fulfill the requirements of Faretta? The Court did not advise or

admonish Appellant of the danger and disadvantage that the court could,

under some circumstances, deprive Appellant of counsel to prevent the

disruption of the orderly progress of the trial, or perhaps; as the State has

argued; to disallow hybred representation. The court did not advise or

admonish that the Appellant would have to follow the ground rules of

procedure but that the judge might make an error that would deprive

Appellant of counsel during a critical phase of trial and that the court, in

effect did not have to follow the rules of procedure because the judge’s

error might be deemed to be “harmless.”

      In short, the trial court told Appellant the law was one thing and then,

after being approached by the Assistant District Attorney, the court decided

the law was another thing and erroneously deprived Appellant of counsel.



                                                                                12
Appellant was led to believe that the law was that he did not “have to

suffer” without an attorney, that he could change his mind “…and tell the

Judge and let Mr. Sherrod start…” RR Vol. 7, p.13. The Appellate court did

not apply the Faretta standard that a defendant must be advised or

admonished in such a way that if he enters a waiver of counsel so that he

does so having been told of the disadvantages and dangers of self-

representation and that he make a choice with eyes open.

      If Faretta is to be modified to allow the trial court to advise a

defendant erroneously on the law or to advise a defendant that the law

protects the defendant in a certain way and then in the same trial to deprive

the same defendant of that protection, then it should be the Court of

Criminal Appeals that delineates standards and limitations on this practice

to guide the courts and the public in the future.



                       GROUND FOR REVIEW TWO


      The Eleventh Court of Appeals Erred when it found that Appellant
entered a knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60.
Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9,
2015, at page 7.




                                                                             13
                                 ARGUMENT


      Review of Ground For Review Two is proper because the Court of

Appeals decision has decided an important question of state and federal

law that has not been, but should be settled by the Court of Criminal

Appeals.

      Review of Ground For Review Two is proper because the Court of

Appeals has decided an important question of state and federal law in a

way that conflicts with the applicable decisions of the Court of Criminal

Appeals and the Supreme Court of the United States.

      In order for Appellant’s waiver of counsel which was entered before

voir dire commenced at trial herein to have been valid, it must have been

given competently, knowingly, intelligently and voluntarily; it is his

constitutional right to elect to do so and to represent himself. (U.S. Const.,

amend. VI; Tex.Const.Art. 1, Sec 10; Faretta v. California, 422 U.S. 806,

819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Williams v. State, 252 S.W.3d

353, 356 (Tex.Crim.App. 2008)

      The Appellate Court in this case found that Appellant knowingly and

intelligently waived his right to counsel prior to voir dire. However, the

record reflects that Appellant could not have given a knowing, intelligent

nor voluntary relinquishment of his right to counsel at this critical phase of

                                                                                 14
trial because he was misinstructed by the Trial Court as to what could and

would happen and was misinformed as to how the law would eventually be

carried out regarding his waiver of right to counsel and further, Appellant

relied on that misinformation to his detriment in waiving his right to counsel.

         Because the Court undertook to inform Appellant of the law pertinent

to his decision to have counsel withdrawn and to represent himself and that

information was substantially incorrect and erroneously applied, the

Appellant cannot be said to have given knowing, intelligent, and voluntary

waiver. A defendant should be able to rely on the Court’s advice and here,

Appellant did so to his detriment, his eyes closed by the advice of the trial

court.

         Appellant relied on the trial court’s representation that the court would

not commit the error of depriving Appellant of Counsel if Appellant waived

his right to counsel. The trial court then committed the error, depriving

Appellant of counsel during a critical phase of the trial; voir dire. Only if the

trial court had advised Appellant that the court could deprive him of counsel

regardless of the court’s representation that it would not deprive him of

counsel and further that, if the court deprived him of counsel, Appellant

might have no remedy at law because it might be harmless error and then

Appellant decided to go ahead and waive the right to counsel could the



                                                                                15
waiver have been said to have been entered by Appellate with his eyes

open, aware of the dangers and disadvantages, knowing, intelligently and

voluntarily. If Texas courts are to modify Faretta and it’s progeny, then it

should be the Court of Criminal Appeals that delineates these standards

and which sets limitations on this practice, resolving any conflicts.



                      GROUND FOR REVIEW THREE


      The Court of Appeals erred when, although it correctly found that the
trial court erred by depriving Appellant of counsel during voir dire, it then
incorrectly found the error to be non-structural error and further erred by
applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v.
State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.




                                 ARGUMENT



      Review of Ground For Review Three is proper because this Court

has recently granted review of a PDR with a similar issue Lewis v. State,

No. 02-12-00246-CR, 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6,

2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim

App. Sept. 17, 2014) (No. PD-0307-14). The issue presented in the parties’

briefs to the Court of Criminal Appeals in Lewis is whether the proper

                                                                                16
standard of review on appeal was de novo or abuse of discretion. In Lewis

the trial court denied the defendant’s request for court appointed counsel to

represent him during voir dire and subsequently, throughout trial when he

attempted to withdraw his waiver of court appointed counsel.

      Review of Ground For Review Three is proper because the Court of

Appeals’ decision has decided an important question of state and federal

law that has not been, but should be settled by the Court of Criminal

Appeals.

      Review of Ground For Review Three is proper because the Court of

Appeals has decided an important question of state and federal law in a

way that conflicts with the applicable decisions of the Court of Criminal

Appeals and the Supreme Court of the United States.

      Review of Ground For Review Three is also proper because the

question of whether a partial denial by the trial judge of counsel for a

defendant during voir dire in a criminal trial can ever be “structural error” is

a novel question of law which has not been, but should be, decided by the

Court of Criminal Appeals.

      The 11th Court of Appeals found that the trial court erred when it

refused to allow Appellant withdraw his waiver of counsel and allow

appointed counsel to complete the defense portion of voir dire. RR Vol. 7,



                                                                               17
pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of

Appeals April 9, 2015, p 7.

      The Court of Appeals then ruled:

            “Because Appellant was not totally deprived of

            counsel during voir dire, we hold that the error was

            not a structural one but, rather, one subject to a

            harm analysis.” RR Vol. 7, pp. 8-16, 60. Calamaco

            v. State No. 11-13-00066-CR, 11th Court of Appeals April

            9, 2015, at page 7.

      The Court of Appeals then went on to state:

            “We have not found a case in which a court specifically

            addresses whether the partial denial of counsel during

            voir dire is a structural error that is not subject to a harm

            analysis or is a constitutional error that is subject to a harm

            analysis.”

      This is an issue for the Court of Criminal Appeals because the

converse is also true: undersigned counsel has not found a case that says

partial denial of counsel during voir dire is never a structural error; and in

the case of Mr. Calamaco we contend that a thorough review would show

that the denial was certainly structural error. There are cases werein partial



                                                                                 18
denial of a constitutional right were found to be structural errors. Davis v.

State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27,

1974 Supreme Court of United States), (cross-examination limited by trial

court) Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598

(1986) (unlawful exclusion of only certain grand jurors based on race). A

more extensive briefing may reveal other cases.

      The “erroneous denial of counsel bears directly on the framework

within which the trial proceeds” United States v. Gonzales-Lopez; 548 U.S.

140, 126 S. Ct. 2557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of

United States), citing Fulminante.

      In it’s analysis of whether or not the denial of Mr. Calamaco’s right to

counsel was structural, the Court of Appeals also relied on the fact that the

trial court had given Mr. Calamaco a “standby counsel” to support it’s

ruling. This reasoning conflicts with earlier rulings that “standby counsel”

does not equate to counsel for his defense to which a defendant is entitled

by the Sixth Amendment”, Medley v. The State of Texas; 47 S.W.3d 17

(2000), Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54,

79 L.Ed.2d 122 (1984). In it’s opinion in Cronic v. U.S., the U.S. Supreme

Court stated that “although counsel is available to assist the accused” that

there are occasions when a presumption of prejudice is appropriate without



                                                                                19
a harm analysis. Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80

L.Ed.2d 657 (1984) Powell v. Alabama 287 U.S. 45, 53, S.Ct 55 77 L.Ed

158 (1932).

      In it’s analysis of whether the error was structural error the Appellate

Court “jumped the gun” and inquired into whether the Appellant was

harmed by the error before fully examining the nature of the violation of the

6th Amendment. The Court of Appeals did not fully analyze whether the

error amounted to a structural defect affecting the framework in which trial

proceeded, and cut short the examination of the error to which Appellant is

entitled Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975) p. 310, citing Gorbert v. State, 717 S.W.2d 21, 24 (Tex. Crim.

App. 1986). Instead of fully examining the nature and effect of the error, the

Court of Appeals took a shortcut, citing Gorbert. In Gorbert it is not clear

how long the defense attorney was not present during voir dire, but only

that his absence was “partial”. It is clear, however, that the absence of

defense counsel in Gorbert was only during part of the State’s examination

of the panel and not, as it was in Appellant’s trial, during the defense

examination. Gorbert at p. 23. In Gorbert the Court of Criminal Appeals

relied on Heredia which found no deprivation of right to counsel in a trial

where defense counsel was absent for only “two or three minutes” of the



                                                                               20
State’s examination of a potential juror. Heredia v. State, 528 S.W.2d 847

(Tex. Crim. App. 1975)

      In both Gorbert and Heredia the Court of Criminal Appeals found

there was no deprivation of the right to counsel. In Mr. Calamaco’s is

distinguished because in this case we come to the Court of Criminal

Appeals with a finding from the 11th Court of Appeals that the 42nd District

Court committed error by depriving the Appellant of his Right to Counsel in

violation of the Sixth Amendment to the United States Constitution.

Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 2015) p. 7

      Calamaco is further distinguished from other partial absence of

counsel cases in that Mr. Calamaco’s entire voir dire of the jury panel was

very, very brief; it is so short that it consumes only about seven pages of

the Court Reporter’s record. RR Vol. 7, pp. 54-61.

      The Court of Appeals’ determination that the error was non-structural

ignored a standard for distinguishing structural errors from non-structural

errors. To apply a harm analysis to a structural error, the court’s have

ruled, would be to speculate as to any harm done, and the courts must not

engage in such speculation. In cases of non-structural error the effect of

the error is quantifiable. The Court of Appeals overlooked that important

distinction between structural and non-structural error.



                                                                              21
      The error found by the Court of Appeals of depriving Appellant of

counsel affects the framework in which the trial proceeds and is not simply

an error in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 111

S.Ct.1246, 113 L.Ed.2d 302. In United States v. Gonzales-Lopez the U.S.

Supreme Court, ruling that a Sixth Amendment violation was not subjected

to harmless error analysis, said “erroneous deprivation of the right to

counsel of choice with consequences that are necessarily unquantifiable

and indeterminate unquestionably qualifies as “structural error” Gonzales-

Lopez, citing Sullivan v. Louisiana, 508 U.S. 275, 282.

            “It is impossible to know what different choices the

      rejected counsel would have made, and then to quantify the

      impact of those different choices on the outcome of the

      proceedings. … Harmless-error analysis in such a context

      would be a speculative inquiry into what might have occurred in

      an alternate universe.” Gonzales-Lopez at 150, se also Davis v.

      State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007), Williams

      v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)

      This ground should be more fully briefed so the Court of Appeals can

make this decision important to the conduct of trials in the lower courts of

Texas.



                                                                               22
                              PRAYER FOR RELIEF



         WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Court grant discretionary review and, after full briefing on the

merits, issue an opinion reversing the Court of Appeals’ judgment and

remanding the cause to the trial court for a new trial.

         Appellant respectfully prays that this Court grant review and, after full

briefing on the merits, issue an opinion resolving these important issues so

that the bench and bar of this state will know how to address similar issues

in the future.

         Appellant respectfully prays that this Court issue an opinion reversing

the Court of Appeals’ judgment and remanding this cause to the Court of

Appeals for full and complete consideration of the issue of whether the

error of denial of counsel found by the Court of Appeals was a structural

error.




                                                                                23
                                         Respectfully submitted,


                                         _______________________
                                         Paul W. Hanneman
                                         Attorney for Appellant
                                         1305 Lamar Street
                                         Sweetwater, Texas 79556
                                         State bar No. 00895500
                                         pwhlawoffice@gmail.com
                                         (325) 235-4777




                       CERTIFICATE OF SERVICE



     I hereby certify, by affixing my signature above, that a true and

correct copy of the foregoing Petition for Discretionary Review, was mailed

through the U.S. Postal Service to James Edison, Office of the Taylor

County District Attorney, 300 Oak Street, Abilene, Texas 79602, and was

mailed to Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046,

Austin, Texas 78711, by U.S. Postal Service.




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                               Paul W. Hanneman
                                 Attorney At Law


1305 Lamar Street                                        Telephone: (325) 235-4777
Sweetwater, Texas 79556                                  Fax: (325) 235-4777
pwhlawoffice@gmail.com




                            Certificate of Compliance


       I certify that this Petition For Discretionary Review, a computer generated
document, and according to the word count function, this document contains a total
of 4,752 words, 3,726 words that are contained in the body of the document,
(which does not include caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the
case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix) pursuant Tex.R.App.Pro. 9.4 (i)(1), 9.4 (i)(2)(D), this
document is printed in a 14-point font.




                                            Paul W. Hanneman




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