Opinion issued August 2, 2016.




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00038-CR
                            ———————————
                     DEVREN KEITH BYERLY, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 3
                           Jefferson County, Texas
                        Trial Court Case No. 302287


                        MEMORANDUM OPINION

      The trial court convicted appellant, Devren Byerly, of the misdemeanor

offense of making a terroristic threat1 and assessed his punishment at ninety days in


1
      TEX. PENAL CODE ANN. § 22.07(c)(1) (West 2011).
jail and a $500 fine. The court suspended the sentence, placed appellant on

community suspension for one year, and ordered appellant to perform fifty hours of

community service, attend an anger management program, and have no contact with

the complaining witness. Appellant argues on appeal that the trial court erred in

allowing him to proceed pro se without proper admonishment or inquiry into

whether he knowingly, intelligently, and voluntarily waived his right to counsel. The

State has conceded error in this case. We reverse and remand for a new trial.2

                                    Background

      Appellant was charged with committing a terroristic threat after an altercation

between him and the complaining witness while they were at his grandmother’s

house.

      Appellant arrived at his trial without counsel, and waived his right to a jury

trial. The trial court proceeded without reference to the fact that appellant was

without counsel, and without admonishing appellant about the hazards of pro se

representation or his right to counsel. The trial judge only asked appellant if he was

ready to begin, and commenced the trial.

      During the course of the trial appellant made several errors and exhibited a

general lack of understanding of trial procedure and rules, including failure to make


2
      Pursuant to its docket equalization authority, the Supreme Court of Texas
      transferred this appeal to this Court. See TEX. GOV’T CODE ANN. § 73.001 (West
      2013) (authorizing transfer of cases).


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an opening statement and an inability to get evidence admitted. The record reflects

that appellant had difficulty in cross-examining the State’s complaining witness

arising out of his personal emotional involvement in the incident that gave rise to the

charge. At the conclusion of the trial, the court found appellant guilty of making a

terroristic threat and sentenced him to ninety days in jail and assessed a $500 fine.

The court suspended appellant’s sentence, placed him on community suspension for

a year, required him to perform fifty hours of community service and attend an anger

management program, and prohibited him from further contact with the complaining

witness.

                                   Applicable Law

      The Sixth Amendment guarantees both the right to the advice of counsel and

the reciprocal right to represent oneself during trial. U.S. CONST. amend. VI; Faretta

v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975). If a defendant chooses

to waive his right to counsel and assert his right to represent himself, the trial court

must admonish him of the risks and challenges of self-representation. Goffney v.

State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992). A defendant’s waiver of

counsel is not effective unless it is made intelligently and knowingly with full

knowledge of the right to counsel being abandoned and the perils of

self-representation. See Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; Williams v. State,

252 S.W.3d 353, 356 (Tex. Crim. App. 2008). The trial court is responsible for



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determining if a defendant has knowingly, intelligently, and voluntarily waived his

right to counsel, and has clearly and unequivocally asserted his right to represent

himself. See Williams, 252 S.W.3d at 356. If the record does not affirmatively show

that a defendant was sufficiently admonished of the risks of self-representation or

that he knowingly, intelligently, and voluntarily waived his right to counsel, it is

reversible error, not subject to harm analysis. See id. at 357; Goffney, 843 S.W.2d at

585.

                                      Analysis

       Here, the record lacks any indication that the trial court admonished appellant

regarding the dangers of self-representation, or inquired into whether appellant

knowingly, intelligently, and voluntarily waived his right to counsel. Therefore, the

trial court erred in failing to admonish appellant on the risks and dangers of pro se

representation, and in failing to inform appellant of his constitutional right to be

represented by counsel, and his right to appointed counsel if he could not afford

counsel. We sustain appellant’s sole issue.




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                                   Conclusion

      We reverse the trial court’s judgment and remand for a new trial.




                                               Russell Lloyd
                                               Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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