Ian Thomas Sargent v. The State of Texas--Appeal from Co Ct at Law No 3 & Probate Ct of Brazoria County

Opinion issued September 20, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00786-CR

IAN THOMPSON SARGENT, Appellant

V.

THE STATE OF TEXAS, Appellees

On Appeal from County Court at Law No. 3

Brazoria County, Texas

Trial Court Cause No. 149043

MEMORANDUM OPINION

Appellant pleaded no contest to the misdemeanor offense of assault, and the trial court assessed punishment at 365 days in jail, suspended for 12 months' community supervision and a $400 fine. See Tex. Pen. Code Ann. 22.01(a)(1) (Vernon Supp. 2006). We determine whether the trial court committed reversible error by failing to clarify and to address whether appellant's waiver of trial counsel was voluntarily and intelligently made. We affirm.

Facts

On January 26, 2006, appellant got into an argument outside his home with Tiffany Duvall over Duvall's smoking a cigarette while she was four months pregnant. Duvall called the police. Appellant grabbed Duvall's purse as she attempted to leave. Appellant and Duvall fought over the purse until the strap broke. Appellant broke Duvall's phone and took her purse. Duvall "ended up in the mud," and appellant went into the house until the police arrived.

Appellant was charged with and pleaded no contest to the misdemeanor offense of assault by causing bodily injury to Duvall by pushing her to the ground. See Tex. Pen. Code Ann. 22.01(a)(1). Prior to the trial court's accepting this plea, appellant was required to sign several documents waving certain rights, including his right to counsel. Appellant signed a "Defendant's Waiver of Counsel" form, which recited:

I, Ian Sargent, have been advised on this the 16 day of June, 2006, by the Court of my right to representation by counsel in the trial of the charge pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed to me free of charge.

I understand that if a lawyer represented me in this case, the lawyer could cross-examine the State's witnesses, offer evidence on my behalf, file motions and argue law before the Court, provide me with legal advice, and in general, do a better job of protecting my legal rights than I could without the assistance of a lawyer.

Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, and of the risks and consequences of representing myself, I wish to waive my right and request the Court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel.

The trial court accepted the plea and assessed punishment at a $400 fine and 365 days in jail, suspended for 12 months' community supervision including 80 hours' community service and attendance in an anger-management program.

Appellant moved for a new trial, contending that the verdict was based on an involuntary plea and that the punishment assessed exceeded the punishment recommended by the State. A hearing was held on August 17, 2006. Appellant testified that he was unable to read the documents, including the waiver of his right to counsel, because he was dyslexic and was "rushed." He also testified that he had eyeglasses that would have allowed him to read despite his dyslexia, but he did not have them at the time of his plea. Appellant was unable to produce any evidence other than his own testimony to prove that he was dyslexic. Appellant did not alert anyone to his inability to read the documents at the time of his plea. In addition, appellant did not request that anybody read the documents to him at that time. Appellant also admitted that he had previously had the assistance of lawyers when he was required to read legal documents.

The trial court made several statements on the record after both sides had closed. The court first stated that he was the same judge who had taken appellant's plea. The trial court then stated that the standard procedure in that court is for the district attorney to announce

globally to the assembled folks that if you are unrepresented by counsel and you want to speak to a representative of the district attorney's office in an attempt to resolve the case, I can't speak with you unless and until you choose to sign a waiver of counsel and admonitions. . . . If you want to do that, we'll give those papers to you and let you look at them.

The trial court further stated that the procedure is carried out before the judge enters the courtroom. The trial court also stated:

My unvarying procedure is when someone comes in front of me, I identify who they are, tell them what they're charged with, look at the paperwork, and announce to them you have signed admonitions and waivers. Did you understand what you signed? Do you have any questions? I am presuming--because I don't specifically recall--that [appellant's] response was I understood and I have no questions.

The trial court then denied appellant's motion for a new trial.

Waiver of Counsel

In appellant's sole point of error, he contends that the trial court committed fundamental error by the failure to clarify and to address the issue that appellant's waiver of trial counsel was voluntarily and intelligently made. Appellant argues that the trial court failed to investigate, by proper admonishments at the time of his plea, appellant's awareness of the dangers and disadvantages of waiving counsel.

A. The Law When a criminal defendant chooses to waive his right to counsel in order to represent himself, his waiver should be made knowingly and intelligently, and he should be warned of the dangers and disadvantages accompanying such a waiver. Faretta v. California, 422 U.S. 806, 835-36, 95 S. Ct. 2525, 2541 (1975). "If a defendant wishes to waive his right to counsel, the court shall advise him of the dangers and disadvantages of self-representation. If the court determines that the waiver is voluntary and intelligently made, the court shall provide the defendant with a statement [that the defendant waives counsel]." Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005). When the defendant appears in court and confesses his guilt, however, "the issue is not whether the trial court admonished the accused of the dangers and disadvantages of self-representation, but rather, whether there was a knowing, voluntary, and intelligent waiver of counsel." Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002) (citing Johnson v. State, 614 S.W.2d 116, 119 (Tex. Crim. App. 1981) (op. on reh'g)); see Blocker v. State, 889 S.W.2d 506, 508 (Tex. App.--Houston [14th Dist.] 1994, no pet.). The Texas Court of Criminal Appeals has determined that Faretta "is not triggered when a defendant appears without an attorney to plead guilty or nolo contendere." Hatten, 71 S.W.3d at 334; see Johnson v State, 614 S.W.2d at 119.

B. Discussion

1. Admonishments

Appellant asserts that the trial court denied him his right to counsel by failing to admonish him of the dangers and disadvantages of self-representation. See Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. However, unlike in Faretta, in this case, appellant did not elect to plead not guilty and to proceed to trial. Instead, appellant pleaded no contest. The Faretta admonishments are not required under these circumstances. See Johnson v. State, 614 S.W.2d at 119. For example, our sister court has concluded that "a misdemeanor defendant who appears without counsel to confess his guilt need not be admonished of the disadvantages of self-representation prior to the court approving the waiver of right to counsel and accepting a plea of . . . no contest." See Williams v. State, 194 S.W.3d 568, 579 (Tex. App.--Houston [14th Dist.] 2006, pet. granted) (citing Blocker, 889 S.W.2d at 508-09). The court's duties under Faretta are not triggered unless a defendant decides to plead not guilty. See id.

Because appellant pleaded no contest, the court was not required to give admonishments prior to accepting appellant's waiver of counsel. We overrule this argument.

2. Written Waiver

Appellant also contends that the written waiver is insufficient to prove that appellant voluntarily and intelligently waived counsel even though the waiver met the requirements set out in section 1.051 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005); Williams, 194 S.W.3d at 579 (stating that signing of waiver of counsel does not conclusively prove waiver was voluntarily and intelligently made). Appellant relies on Williams heavily and asserts that the court should supply the waiver form to the defendant only after the trial court has determined that the defendant's waiver was voluntarily and intelligently made. Id. at 579.

Appellant's reliance on Williams is misplaced because appellant did not plead not guilty as did the defendant in Williams, but instead pleaded no contest. See id. (indicating that waiver alone is sufficient to establish voluntary and intelligent waiver of counsel if defendant pleaded guilty or no contest); Blocker, 889 S.W.2d at 509 (holding that signed waiver is sufficient proof of voluntary and intelligent waiver). We overrule this argument.

C. Resolution

Because appellant pleaded no contest, the article-1.051 waiver that he executed constituted sufficient proof that he voluntarily and intelligently waived his right to counsel. See Hatten, 71 S.W.3d at 334; Blocker, 889 S.W.2d at 508. We overrule appellant's sole point of error.Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).