Thomas Edward Manley v. The State of Texas--Appeal from County Court at Law of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-99-038-CR

THOMAS EDWARD MANLEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court # 94-12343-CR

DISSENTING OPINION

The Record

To reverse this case for a new trial I must presume that the trial court was trying to cause the record to reflect an event which had not occurred. Manley does not deny that the referenced event occurred. I will not make that presumption. The majority sets out the admonishments which were recorded in the reporter s record, so I will not repeat them. However, the important thing to note about those recorded admonishments is that they repeatedly refer to the trial court having previously been advised that the defendant was going to represent himself, to having previously admonished the defendant, and having previously concluded that the defendant had validly elected to exercise his right to self-representation. The references include the following:

1) It s my understanding that you wish to waive your rights.

2) Yesterday morning . . . I also advised you and warned you of any dangers in representing yourself . . .

3) Now once, again, having advised you and readvised you of the dangers of self-representation, at this time do you still wish to represent yourself pro se in this case? (To which Manley responded, I do. )

Furthermore, it appears that something occurred earlier because a member on the jury panel asked the following during voir dire:

PROSPECTIVE JUROR: The other witness who is acting as his own counsel he can cross-examine other witnesses, right?

MS. HELLSTERN: Certainly.

PROSPECTIVE JUROR: Is he a lawyer?

MS. HELLSTERN: Mr. Manley? Not to my knowledge.

PROSPECTIVE JUROR: He has already been told about [sic] he has to be treated the same as an attorney? Does he have to know the law in order to - -

MS. HELLSTERN: Everyone has a right to act as their own counsel if that [sic] what he chooses - -

PROSPECTIVE JUROR: I know he has that right, but - -

MS. HELLSTERN: - - and they are also given certain warnings about the dangers of self-representation.

PROSPECTIVE JUROR: He has been warned. Okay.

This exchange indicates that the prospective juror observed something that was not recorded. But, why is this relevant? Because, if Manley had been previously admonished and the record was not made at the time, I see no problem with the trial court placing upon the record the events that had previously occurred. See Tex. R. App. P. 33.2.Goffney v. State

The majority opinion addresses the timeliness of the admonishments regarding pro se representation and bases its decision primarily on the following paragraph in Goffney:

The State also contends it is the responsibility of the party to request a record of the proceedings under Tex. R. App. P. Rule 11. While this is true, prior to any act of self-representation by the defendant, the record should reflect that the admonishments were given to the defendant. Had the admonishments been appropriately given, the defendant could not now complain of the absence of a record on appeal. The absence of evidence of admonishments being given to the defendant fails to meet the requirements of the Supreme Court.

Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992) (citations omitted).

My interpretation of this paragraph results in an entirely different outcome than the majority. First, it is important to understand that Goffney is distinguishable from the case at hand. Unlike the present case, the complaint in Goffney was that the admonishments were not in the reporter s record and that the only indication that the admonishments had been given was in conclusory language in the judgment. Here, at the very least, the repetition of the admonishments that were given to Manley are part of the reporter s record on appeal.

Another fundamental problem with the majority s reliance upon Goffney is that the holding in Goffney addressed only the recording of the admonishments and not the timing of those admonishments. The holding is stated as follows: Because the record does not contain the admonishments of the dangers and disadvantages of self-representation as required by Faretta, we affirm the judgment of the Court of Appeals. Goffney, 843 S.W.2d at 585. As stated above, there were no admonishments regarding pro se representation in the record in Goffney. Thus, the timing of the admonishments was not an issue before the court and any reliance on Goffney to support that issue is misplaced.

Now, let us examine the second sentence in the paragraph from Goffney. It states: While this is true, prior to any act of self-representation by the defendant, the record should reflect that the admonishments were given to the defendant. Id. (emphasis added). The majority interprets this as an absolute requirement that not only must the record reflect that the admonishments were given before any specific act of self-representation, but it must also be recorded in the record before any act of self-representation. Consider the difference that would result if the second sentence were stated as follows: While this is true, the record should reflect that the admonishments were given to the defendant prior to any act of self-representation. Any casual reader, and many technical writers, would not see a distinction. However, if the freedom of your client is dependant on this sentence, you may look at it more closely and, in my opinion, twist the meaning so that not only must the record reflect that the defendant was properly admonished before any act of self representation, but that the record at the time of the first act of self-representation already reflects that the admonishments have been given.

That this cannot be the law can be amply demonstrated using another method of admonishment. If the admonishment had been entirely in writing, signed by the defendant and delivered to the prosecuting attorney, the record would not reflect that the defendant had been adequately admonished until the written admonishments had been filed. If prior to the time that the written admonishments were actually filed, the self-represented defendant performed some act of self-representation, would we hold that the written admonishments were not adequate to show a knowing and intelligent waiver? According to the twist that Manley puts on the second sentence, it would be required. I would not.

In fact, the procedural problem created by the majority opinion leads me to believe that it is not workable and cannot be what the Court of Criminal Appeals meant. All the Constitution requires is that the trial court give the admonishments when the defendant elects to represent himself. To require anything more specific in the way of procedural requirements, would impede the defendant s constitutional right to self-representation. See Faretta v. California, 422 U.S. 806, 818-820, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562 (1975). In this case, the record reflects that the defendant was admonished // , and the record also reflects that the defendant made a knowing and intelligent waiver of his right to counsel. Thus, I would uphold the validity of Manley s election of self-representation.

Waiver

In Goffney, the State argued that the reason the admonishments were not in the record was because no record had been made of them and that the self-represented defendant did not object to the failure to have the record reflect the admonishments when given. Any lawyer would have been required to make such an objection but it was determined that the self-represented defendant did not have to object, apparently because until he has validly waived his right to counsel he is not representing himself. This presents another common-sense problem in practice. If the defendant is not admonished until the middle of trial and at the time of admonishment elects to continue, he has then validly waived any objection that he could have made regarding the timing of the admonishments.

We would be presented with an entirely different issue if Manley had objected to the allegedly untimely admonishment at the time he was admonished and immediately sought to be represented by counsel or if he had at that time moved for a mistrial so that he could start the trial over with counsel. Neither of these events happened. Consequently, even if the admonishments in the record were the only ones given, Manley elected to continue to represent himself. At that point, having elected to represent himself, as with any defendant represented by counsel, he waived his opportunity to complain about the timeliness of the admonishment. Consequently, I would hold that Manley has failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a).

Harmless Error Analysis

Assuming the trial court did err and there was no waiver, the failure to timely admonish the defendant and record his decision is clearly subject to harmless error analysis. See Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). [E]xcept for certain federal constitutional errors labeled by the Supreme Court as structural, no error . . . is categorically immune to a harmless error analysis. Id. at 264. [I]t may be true that some kinds of errors . . . will never be harmless . . . and that some other kinds of errors will rarely be harmless. But, appellate courts should not automatically foreclose the application of the harmless error test to certain categories of error. Id. Accordingly, I would hold that the failure to timely admonish Manley is subject to harmless error review. Further, because at the time he was admonished he nevertheless elected to waive his right to counsel and represent himself in this instance, I would hold that the error, if any, was harmless.Conclusion

For the reasons stated above, I respectfully dissent.

TOM GRAY

Justice

Dissenting opinion delivered and filed June 21, 2000

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