Kenneth Allen Gerhard Lukasik v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

98-00708 & 98-00761 Lukasik v Stae of Texas.wpd Nos. 04-98-00708-CR & 04-98-00761-CR
Kenneth Allen Gerhard LUKASIK,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 4, Bexar County, Texas
Trial Court Nos. 632,168 & 632,170
Honorable Claude D. Davis, Judge Presiding

Opinion by: Alma L. Lopez, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: August 30, 2000

AFFIRMED

This appeal arises from Kenneth Allen Gerhard Lukasik's convictions for the offenses of unlawfully carrying a weapon (UCW) and driving while license suspended (DWLS). (1) Lukasik represented himself at trial and the jury found him guilty of both offenses. The trial judge sentenced Lukasik to one year in jail and a $4,000.00 fine for UCW, and six months in jail and a $500.00 fine for DWI. The trial judge suspended Lukasik's sentences and placed him on community supervision for two years. Because we find no error, we affirm the judgment of the trial court.

Lukasik's Failure to Admonish Claim

The United States Supreme Court recognized a criminal defendant's right to represent himself in its decision in Faretta v. California. See Faretta v. California, 422 U.S. 806 (1975). Recognizing the risks of self-representation, the Court determined that in order to competently and intelligently choose self-representation, the criminal defendant must be advised of "the dangers and disadvantages of self-representation." See Faretta, 422 U.S. at 834-35. Such admonishments have become known as the Faretta warnings. In his first issue, Lukasik contends that the trial court failed to warn him about the dangers of pro se representation. Lukasik states that, "the record is devoid of any showing that the Auxiliary Trial Court Judge admonished the Appellant in any fashion prior to adversarial judicial proceedings commencing." Nonetheless, the trial court's docketing sheets indicate that the trial judge administered the Faretta warnings on June 6, 1996. Although Lukasik acknowledges that he received the warnings on that date, he argues that the visiting judge who presided over his trial should have "re-urge[d] the warnings as to self-representation" throughout his trial. But while Faretta requires the trial judge to admonish the defendant about self-representation, it does not require the trial judge to reiterate the warnings to the defendant throughout the course of legal proceedings. Instead, Faretta requires that the defendant make the decision to represent himself "knowingly and intelligently." Id.

To knowingly and intelligently choose self-representation, the defendant must be made aware of the dangers and disadvantages of self-representation so that the record will establish that the defendant knows what he is doing and that his choice is made with his eyes wide open. See Marion v. State, 936 S.W.2d 5, 6 (Tex. App.-El Paso 1996, pet. ref'd). Despite his claims that he did not have the "intelligence and legal acumen" to continue on his own behalf, the record clearly establishes that Lukasik knew what he was doing. Lukasik complied with the procedural aspects of trial as would an attorney by making objections, filing motions, and seeking the court's assistance to subpoena witnesses. Additionally, Lukasik demonstrated legal acumen by invoking "the rule." Such conduct demonstrates that Lukasik understood what would be required of him if he proceeded pro se. Although a defendant may withdraw a waiver of the right to counsel at any time, see Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2000), Lukasik never informed the judge that he did not understand what was happening, or indicate that he wanted to cease representing himself and have the assistance of an attorney. Because the record clearly demonstrates that Lukasik was administered Faretta warnings, and that he made a knowing and intelligent decision to represent himself, we overrule his first issue.

Lukasik's Failure to File Constitutional Oath of Office Claim

In his second issue, Lukasik argues that the trial court erred by failing to file an oath of office with the Texas Secretary of State. Article 16, section 1 of the Texas Constitution requires elected officials and appointed officers to take an oath of office and to file the oath with the Secretary of State. See Tex. Const. art. XVI, 1. Lukasik argues, that because the trial judge never filed his oath, the trial judge did not have authority to preside over his trial. Lukasik relies on the decision in Prieto Bail Bonds v. State to argue this conviction should be set aside. See Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex. App.- El Paso 1999, no pet.).

In Prieto, the Eighth Court of Appeals determined that the judgment forfeiting a bail bond failed because the trial judge had not taken the constitutionally required oath. See Prieto Bail Bonds, 994 S.W.2d at 321. In Prieto, however, the challenger preserved his error for appellate review by objecting to the trial judge's authority prior to the final forfeiture hearing. Id. at 318. Unlike the challenger in Prieto, Lukasik never complained about the trial judge's authority at trial. Instead, he complains about the trial judge's authority for the first time on appeal. Although a defendant may challenge the authority of the trial judge pretrial, if he does not, he may not complain for the first time on appeal. See Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998). Because Lukasik did not timely object and preserve issue for appeal, we overrule his second issue.

Conclusion

Having overruled both of Lukasik's issues, we affirm the judgments of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH

1. Lukasik's conviction in Trial Court No. 632,168 is the subject of Appeal No. 04-98-00708-CR. His conviction in Trial Court No. 632,170 is the subject of Appeal No. 04-98-00761-CR. The cases were consolidated for trial.