                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 BABATUNDE KAYODE ADIO,                                         No. 08-13-00237-CR
                                                §
                   Appellant,                                      Appeal from the
                                                §
 v.                                                            County Court at Law # 1
                                                §
 THE STATE OF TEXAS,                                            of Wise County, Texas
                                                §
                   Appellee.                                       (TC# CR-67925)
                                                §

                                  CONCURRING OPINION

       I agree with the majority opinion’s conclusion, but write separately to address an

important distinction in the law applicable to misdemeanor cases. In 2011, the trial court gave

Babatunde Kayode Adio written admonishments regarding his right to be represented by

counsel, his right to appointed counsel if he could not afford to hire a lawyer, and his right to

represent himself. Additionally, the court warned Appellant about the dangers and disadvantages

of self-representation. Appellant signed the form indicating that he wished to waive his right to a

lawyer, but he subsequently asked for and was provided with appointed counsel. Appellant was

represented by appointed counsel when he entered a negotiated guilty plea to the misdemeanor

resisting arrest charge in October of 2011. After the State filed its motion to proceed with an

adjudication of guilt in January 2012, Appellant hired an attorney and Abe Factor entered his
appearance in March 2012. Mr. Factor filed a motion to withdraw on November 30, 2012 based

on a “conflict of interest” and the trial court granted that motion. The State filed an amended

motion to adjudicate on January 29, 2013 and the trial court set the hearing on the motion for

July 10, 2013. Although more than seven months had passed since counsel had withdrawn,

Appellant still had not retained counsel. According to the comments made by the trial judge at

the hearing, Appellant had represented to the court on several occasions that he was going to

enter a plea of true to the motion to adjudicate and the court had set the case for a plea, but

Appellant had not entered a plea and the case had been repeatedly re-set.

          The Court of Criminal Appeals made clear in Hatten v. State that the admonishment

requirements of Faretta v. California1 are not invoked by a misdemeanor defendant who waives

his right to representation by counsel and does not contest his guilt. Hatten v. State, 71 S.W.3d

332, 334 (Tex.Crim.App. 2002).               In such a case, “the issue is not whether the trial court

admonished the accused of the dangers and disadvantages of self-representation (pursuant to

Faretta), but rather whether there was a knowing, voluntary, and intelligent waiver of counsel.”

Hatten, 71 S.W.3d at 334, quoting Johnson v. State, 614 S.W.2d 116, 119 (Tex.Crim.App.

1981)(op. on reh’g).

          The record before us reflects that Appellant initially entered a plea of true to one

allegation at the beginning of the hearing, but after some discussion with Appellant the trial court

entered a plea of not true as to all of the allegations and the State introduced evidence in support

of its motion.2 Once that plea of not true occurred, the trial court was required to determine


1
    Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
2
  When asked whether he pled true or not true to the allegations, Appellant stated: “Sir, in everything the only
ones [sic] that was true is that I picked up a new charge in Tarrant County.” The motion to adjudicate alleged that
Appellant violated the terms and conditions of community supervision by committing the offense of assault/family
violence on December 7, 2011 in Tarrant County.

                                                          2
whether Appellant knowingly, voluntarily, and intelligently waived his right to counsel and

admonish him in accordance with Faretta before proceeding with the adjudication hearing.

       As noted above, the trial court provided written Faretta admonishments to Appellant in

2011 and Appellant waived his right to counsel, but he almost immediately reasserted his right to

counsel and the court appointed an attorney to represent him. By retaining counsel to represent

him in connection with the State’s motion to adjudicate, Appellant continued to assert his right to

counsel. Under these circumstances, I conclude that the trial court was required to repeat the

Faretta admonishments at this new stage of the proceedings and determine whether Appellant

was making a valid waiver of the right to counsel. Because the record does not affirmatively

show that Appellant knowingly, voluntarily, and intelligently waived his right to counsel after

being administered the Faretta warnings, I agree with the majority that Appellant’s right to

counsel was violated.



August 21, 2015
                                             ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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