LEE GABRIEL JUSTICE

FROM THE 271ST DISTRICT COURT OF JACK COUNTY
TRIAL COURT NO. 4600-A MEMORANDUM OPINION

Appellant Emory Alexander chose to represent himself at his trial and was convicted of murder by a jury. The jury then assessed his punishment at eighty-five years' confinement. In his sole point, Alexander, through appellate counsel, contends that he is entitled to a new trial because the trial court improperly admonished him and, therefore, he did not knowingly, intelligently, and voluntarily waive his right to trial counsel. We affirm.

I. BACKGROUND

On January 16, 2015, four days before his murder trial was set to commence, Alexander's court-appointed attorneys filed a notice, also signed by Alexander, stating that Alexander had informed counsel that he wished to represent himself at trial. The notice reflected that counsel had advised Alexander "of the dangers and pitfalls of self-representation, the dire possible consequences of such a decision, [and] the standard to which he would be held during the trial" and that they "strenuously advised against self-representation." Alexander continued to insist on representing himself.

On January 20, the first day of trial, the trial court referenced the notice of self-representation and appointed Alexander's current counsel as standby counsel. The trial court then admonished Alexander about his decision to represent himself at trial as follows:

• His standby counsel would answer any questions he had but would not otherwise participate in the trial;

• He would be held to the same standard as a licensed attorney;

• He would have to comply with all rules relating to voir dire and that if he violated them, he could be held in contempt of court;

• He had a Fifth Amendment right to not testify but if he questioned witnesses based on facts he knew "about . . . what did or did not

happen on the night of this alleged incident," he would waive that right;

• The State could put on evidence of his prior convictions and bad acts if he chose to testify;

• The trial court would not tell him what evidence to object to, requiring Alexander to object to the admissibility of evidence;

• If inadmissible but unobjected-to evidence was admitted, it would be "highly unlikely" that the admission would be reversible error; and

• He should not use argumentative questions when questioning witnesses because he could inadvertently waive his Fifth Amendment right against self-incrimination.

Shortly thereafter, Alexander asked the trial court if he would be able to "go over exactly what happened on that night" by speaking to the jury "at some point." The trial court explained that Alexander had to testify to put on that evidence. Alexander then asked the trial court if it was too late for him to appear through counsel during trial. The trial court granted a recess for Alexander to speak with standby counsel. After the recess, Alexander reconfirmed on the record that he would represent himself because he felt "this is the best way for me to relate exactly what went on that night." The trial court again advised Alexander that he believed Alexander was "making a serious error in representing" himself.

II. SUFFICIENCY OF ADMONISHMENTS

Alexander contends that the trial court should have specifically admonished him that the State "would take advantage of his relative inexperience and in [e]ffect not 'play fair.'" He also argues that the general admonishment he received—that he would be held to the same standard as the prosecuting attorney—left him with the incorrect belief that the prosecuting attorney would be required by the court to "play by the rules" as well. Finally, Alexander argues that once the first witness testified for the State, the trial court should have withdrawn his consent to Alexander's self-representation because it was apparent that Alexander failed to knowingly and voluntarily waive his right to counsel.

The State responds that standby counsel's and the trial court's admonishments were sufficient to alert Alexander to the dangers and disadvantages of representing himself. It emphasizes that courts have consistently held that no particular script must be given to the accused in order to ensure that Alexander's relinquishment of his right to counsel was knowing and voluntary. Finally, the State contends that the trial court was not required to revoke its approval of Alexander's self-representation because technical legal knowledge is not relevant to the assessment of a knowing exercise of the right to represent oneself. We agree with the State.

The Sixth and Fourteenth Amendments to the United States Constitution give criminal defendants in state courts a constitutional right to counsel and the corresponding right to self-representation. Faretta v. California, 422 U.S. 806, 819-20, 95 S. Ct. 2525, 2533 (1975); see also Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2015). In order to represent oneself at trial, the accused must clearly and unequivocally assert his right to self-representation. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008). An appellate court looks at the totality of the circumstances to assess whether the accused was aware of the dangers and disadvantages of self-representation. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; Williams, 252 S.W.3d at 356; Cooks v. State, 169 S.W.3d 288, 294 (Tex. App.—Texarkana 2005, pet ref'd). We review a trial court's decision on this issue for an abuse of discretion, viewing the evidence in the light most favorable to the trial court's ruling. O'Brien v. State, 482 S.W.3d 593, 619 (Tex. App.—Houston [1st Dist.] 2015, pet. filed).

Looking at the record and the totality of the circumstances here, we hold that Alexander received sufficient admonitions regarding the dangers and disadvantages of self-representation and that his waiver was knowing, intelligent, and voluntary. Before trial, Alexander had a lengthy discussion with his attorneys about the "dire possible consequences" of self-representation, but continued to assert his right to represent himself. Before the trial began, the trial court gave Alexander extensive admonishments and repeatedly told him that it would be unwise to proceed without counsel. Moreover, after giving each admonishment, the trial court asked Alexander if he understood what was being said, to which Alexander consistently replied, "Yes, sir." The trial court also provided a second series of admonishments after it became concerned that Alexander did not understand that he needed to get on the witness stand if he wanted to tell the jury his side of the story. The trial court then recessed the proceedings to allow Alexander again to discuss with standby counsel whether he should represent himself. Alexander reconfirmed his decision to waive his right to counsel after this recess. Finally, the admonishments that Alexander received were more extensive than other admonishments that have been held sufficient. See, e.g., Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 929 (1998); Burgess v. State, 816 S.W.2d 424, 427 (Tex. Crim. App. 1991); Calton v. State, No. 2-04-228-CR, 2005 WL 3082202, at *2 (Tex. App.—Fort Worth Nov. 17, 2005, pet. withdrawn) (mem. op., not designated for publication); Cooks, 169 S.W.3d at 295-96.

Alexander also contends that the trial court should have withdrawn its consent to Alexander's self-representation once the State put on its first witness and used him to get most of its case into evidence. We disagree with this argument for three reasons. First, a court may not force a criminal defendant to use an attorney at trial because it violates his constitutional right to self-representation. Faretta, 422 U.S. at 820, 95 S. Ct. at 2533-34. Second, Alexander was specifically admonished about the need for him to raise objections and about the court's role in ruling on those objections. The trial court explicitly told Alexander that it would not make any objections for him. Finally, an assessment of the accused's "technical legal knowledge" is not relevant to a court's analysis of whether a defendant knowingly and intelligently exercised his right to defend himself. Id. at 836, 95 S. Ct. at 2541; see also Williams, 252 S.W.3d at 356 (recognizing trial court not required to inquire into defendant's background to determine knowing and intelligent waiver); Blankenship v. State, 673 S.W.2d 578, 584 (Tex. Crim. App. 1984) (stating that to "require a lawyer's expertise as a prerequisite to asserting the right [to self-representation] would deny it to all but a small portion of society").

Having addressed Alexander's point on appeal, we note that the record reflects that Alexander relied on and used his standby counsel during the trial. Alexander's representation was not self-representation but was hybrid representation.See Dolph v. State, 440 S.W.3d 898, 907-08 (Tex. App.—Texarkana 2013, pet. ref'd); Rainwater v. State, 634 S.W.2d 67, 68 (Tex. App.—Fort Worth 1982, no pet.). Therefore, the Faretta admonishments were not required. See Dolph, 440 S.W.3d at 907 (citing Walker v. State, 962 S.W.2d 124, 126 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd)); see also Griffis v. State, 441 S.W.3d 599, 609-10 (Tex. App.—San Antonio 2014, pet. ref'd), cert. denied, 136 S. Ct. 58 (2015); Rainwater, 634 S.W.2d at 68.

III. CONCLUSION

We hold that Alexander knowingly and voluntarily waived his constitutional right to be represented by counsel at trial. See Collier, 959 S.W.2d at 626; Fulbright v. State, 41 S.W.3d 228, 232-35 (Tex. App.—Fort Worth 2001, pet. ref'd). We conclude on this record that he did so "with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942). Therefore, the trial court did not abuse its discretion by allowing Alexander to represent himself with standby counsel. We overrule Alexander's sole point and affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 5, 2016