Banks, Kenneth Mathis v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Opinion filed  October 31, 2002.

In The

Fourteenth Court of Appeals

_______________

NO. 14-01-01196-CR

_______________

KENNETH MATHIS BANKS, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________

On Appeal from the 177th District Court

Harris  County, Texas

Trial Court Cause No. 887,727

_______________________________________________________

O P I N I O N

Kenneth Mathis Banks appeals a conviction for burglary of a building with the intent to commit theft[1] on the ground that he was denied counsel during trial in violation of the Sixth Amendment of the United States Constitution and article 1.051(h) of the Texas Code of Criminal Procedure. We affirm.

Appellant s sole issue argues that he was denied counsel during both the guilt/innocence and punishment phases of his trial because his waiver of the right to counsel was invalid in that: (1) it was not made knowingly and intelligently; and (2) the trial court insufficiently apprised him of the consequences of waiving his right to counsel. Appellant complains that, after he expressed his dissatisfaction with his appointed counsel, the trial court merely allowed him to choose between continuing with that attorney or representing himself.

In all criminal prosecutions, the accused has a right of assistance of counsel for his defense. U.S. Const. amend. VI; Tex. Code Crim. Proc. Ann. art. 1.051(a) (Vernon Supp. 2002). An accused also has a right to be heard by himself, counsel, or both. Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon1977). When a criminal defendant chooses to waive his right to counsel and represent himself, the waiver should be made knowingly and intelligently, and he should be warned of the dangers and disadvantages accompanying such waiver. See Faretta v. California, 422 U.S. 806, 835 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002). A decision to waive counsel and proceed pro se is made knowingly and intelligently if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. Moore v. State, 999 S.W.2d 385, 396 n.5 (Tex. Crim. App. 1999). However, the trial court is not required to admonish a defendant of the dangers of self-representation where, as here, standby counsel[2] is appointed to him. Walker v. State, 962 S.W.2d 124, 126-127 (Tex. App. Houston [1st Dist.] 1997, pet. ref d); Robertson v. State, 934 S.W.2d 861, 866 (Tex. App. Houston [14th Dist.] 1996, no pet.).[3]

In this case, during two separate pre-trial hearings, the trial court: (1) inquired into appellant s educational background and legal experience; (2) warned appellant that he would be at a serious disadvantage at trial because he was not an attorney; (3) admonished appellant that he would have to follow the same rules of evidence and procedure as a licensed attorney; (4) cautioned appellant to not expect any preferential rulings or treatment because he was not an attorney and that he could not use his ignorance of the law as an excuse when committing mistakes in representing himself; (5) asked appellant whether he still wanted to give up his right to counsel to represent himself; and (6) appointed standby counsel and explained to appellant what the role of a standby counsel during trial would be.

In response to the trial court s admonishments, appellant: (1) indicated that he had attended college and could understand law books; (2) expressed dissatisfaction with his appointed counsel but repeatedly and unequivocally asserted his right to self-representation; (3) confirmed that he understood that he would not receive any preferential treatment and would have to follow the rules of evidence and procedure; (4) expressed confidence that he could do a good job in representing himself because he knew the facts better than anybody else; and (5) acknowledged assisting his counsel in a hybrid representation at his probation revocation hearing.

This record reflects that appellant was sufficiently admonished of the dangers and disadvantages of self-representation, even though it was not required, and that his persistent assertion of the right of self-representation was knowing and intelligent.[4] Contrary to his contention on appeal, the choice he faced between going to trial with appointed counsel and self-representation is not a denial of counsel or an involuntary waiver of counsel.[5] Accordingly, appellant s sole issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed October 31, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] A jury found appellant guilty and assessed punishment of two years confinement and a $1,000 fine.

[2] In response to a defendant s request for self-representation, standby counsel may be appointed by the trial court to be available to advise the defendant and participate in the case, or not, as requested by the defendant. See Faretta, 422 U.S. at 834 n.46; Robertson v. State, 934 S.W.2d 861, 864 (Tex. App. Houston [14th Dist.] 1996, no pet.).

[3] Contra State v. Castillo, 791 P.2d 808, 812 (N.M. Ct. App. 1990) (holding that even when standby counsel is appointed, the trial court must admonish the defendant to ensure that he is aware of the hazards and disadvantages of self-representation).

[4] See Burgess v. State, 816 S.W.2d 424, 427-29 (Tex. Crim. App. 1991).

[5] An accused does not have the right to choose his appointed counsel but can merely choose to keep his appointed counsel or represent himself. See Garner v. State, 864 S.W.2d 92, 98 (Tex. App. Houston [14th Dist.] 1993, pet. ref d).