not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the chal..

NUMBER 13-02-218-CR

COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG



ALEJANDRO RODRIGUEZ MATA, Appellant,

v.

THE STATE OF TEXAS, Appellee.



On appeal from the 257th District Court of Hidalgo County, Texas.



O P I N I O N

Before Justices Yañez, Rodriguez and Baird Footnote

Opinion by Justice Baird

Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote

I. Self Defense and Defense of Third Person.

Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.

A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.

The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.

According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.

For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).

Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.

II. Ineffective Assistance of Counsel.

Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.

1.

The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”

We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.





2.

The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).

The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.

3.

The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.

4.

The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.

Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.

In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.



B. The Punishment Phase.

The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.

1. The Erroneous Instruction.

Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See id. (emphasis added).

However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.

2. The Improper Argument.

After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:

The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.



For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.

So you know parole does exist in reality.

And so that will help you understand those issues.

(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.

The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.

Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).

Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).

Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.

In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.

Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.

Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.

In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.

The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).



_________________________

CHARLES BAIRD,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of August, 2004.

9. The quality of the legal representation actually provided. different for the indigent as it is for non indigent?

Dallas Criminal Defense Lawyer
State & Federal Cases
Constitutional and Statutory Bases

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused has the right to the assistance of counsel for his or her defense. Under the due process clause of the Fourteenth Amendment, this right has been extended to persons accused of crimes in state prosecutions.

These constitutional provisions have been interpreted as requiring the appointment of counsel for an accused who is indigent. This right applies to all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony. However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed. Thus, a defendant is not entitled to appointment of counsel in a misdemeanor prosecution when the state asserts that it will not seek a jail sentence and the court's punishment is by fine only. Similarly, an accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment. The punishment under such circumstances must be limited to a fine.

The constitutional right to counsel is complemented by statutory provisions acknowledging a defendant's right to counsel in any adversarial judicial proceeding. This right includes the right to consult in private with counsel sufficiently in advance of a proceeding to insure adequate preparation. An indigent defendant is entitled to the appointment of an attorney for any adversarial judicial proceeding that may result in punishment by confinement and in any other criminal proceeding when the court concludes that the interests of justice require representation. Thus, whenever a court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice otherwise require representation of an indigent defendant the court must appoint one or more attorneys to defend him or her as soon as possible. A defendant does not waive the right to counsel by simply failing to request appointed counsel An attorney so appointed must represent the defendant until the charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved by the court or replaced by other counsel.

Each county with at least four county courts and four district courts may appoint a public defender to represent indigents. Moreover, certain other counties and judicial districts are authorized to appoint a public defender for each court or for the county as a whole.

It is common practice in Texas for judges to appoint two attorneys, rather than one, to represent an indigent defendant charged with a capital crime or a major felony. If the trial court appoints a single attorney at the outset, a pretrial motion may be used to request additional counsel. The right to counsel, whether retained or appointed, applies to proceedings other than those simply related to a determination of guilt or innocence of a criminal offense. For example, the right extends to probation revocation proceeding and extradition proceedings. It also applies to appellate and post conviction habeas corpus matters.

Choice of Counsel

The right to counsel gives rise to a no indigent's right to select counsel of his or her choice. Therefore, an accused must be afforded a fair opportunity to select and retain an attorney of his or her choosing. However, an accused's right to counsel of choice is not absolute, and it may not be manipulated to obstruct orderly procedure in the courts or interfere with the fair administration of justice.

Some of the factors that the appellate court will weigh in deciding if the defendant was denied the right to counsel of his or her choice when forced to trial with unacceptable counsel are as follows:

1. The length of the delay requested;
2. Whether other continuances were requested and the court's rulings on them;
3. The length of time that trial counsel had to prepare;
4. Whether another competent attorney was prepared to try the case;
5. The balance of convenience or inconvenience to the witnesses, opposing counsel, and trial court;
6. Whether the delay was for legitimate or contrived reasons;
7. Whether the case was complex or simple;
8. Whether the denial of the motion resulted in some identifiable harm to the defendant; and
9. The quality of the legal representation actually provided.

Under some circumstances, a defendant who has failed to secure counsel after being afforded a reasonable opportunity to do so may be forced to proceed without representation. A court may proceed with a matter in the absence of counsel when a nonindigent defendant, or an indigent defendant who has refused appointed counsel in order to retain private counsel, appears at a proceeding without counsel after having been afforded the opportunity to arrange representation. A court may take this action without securing a written waiver of counsel or appointing counsel. However, the defendant must have been provided with 10 days' notice that a dispositive setting was to take place.

Retroactivity of Right

The right to counsel is given retroactive application. This right as it retroactively applies attaches to every stage of the prosecution where substantial rights of an accused may be affected, including the appeal. Therefore, an accused who is imprisoned may be entitled to postconviction relief, such as habeas corpus, if he or she was deprived of the assistance of counsel at a critical stage of a former prosecution even though the law regarding the right to counsel was complied with at the time of trial.

The retroactivity of the right to counsel may also be significant even if the accused is not presently in custody because a conviction obtained in a former criminal proceeding where there was a violation of the accused's right to counsel is not properly admissible in a subsequent criminal proceeding. For example, an accused may prevent the prosecution from introducing a prior conviction that could otherwise be used for impeachment. An accused may also prevent a prior conviction from being used to support guilt or to enhance the punishment for another offense.

However, in a subsequent criminal proceeding an accused will not be able to prevent the introduction of a prior conviction obtained without counsel unless he or she can prove indigency or the absence of a waiver of the right to counsel in the former proceeding . If a prior judgment of conviction recites that the defendant was represented by counsel, there is a presumption that the defendant was represented by counsel during the proceedings up to the conviction. In addition, there is a distinction between the later use of an uncounseled conviction and the use of an uncounseled sentence. For example, although the use of a conviction obtained while the accused was without counsel is unavailable for enhancement, the fact that there might have been no attorney present at the sentencing does not render the underlying counseled conviction invalid for enhancement purposes. This same rule applies to the use of a prior conviction for impeachment. The fact that the accused was without counsel when probation was revoked does not mean that the counseled conviction placing the accused on probation may not be used for impeachment.

Hybrid Representation

Article 1, Section 10 of the Texas Constitution states that an accused in a criminal proceeding has the right to be heard by himself or herself or counsel, or both. Although the language of this provision would appear to grant an accused the right to represent himself or herself along with counsel, it has been held that this provision of the constitution does not expand or alter the right to counsel or in any way give the accused a right to such hybrid representation. Rather, Article 1, Section 10 affords the accused the right to testify at his or her trial and to be represented by counsel. Thus, there is no constitutional right in Texas to representation partially pro se and partially by counsel As a result, the trial court is empowered to reject a request for hybrid representation. In this regard, it has been held that a request for self-representation that is not accompanied by a waiver of the right to counsel constitutes a request for hybrid representation.

If the trial court approves a request for hybrid representation, a defendant may act pro se as well as through retained or appointed counsel. A defendant who requests and accepts hybrid representation may not later assert any claim about waiver of counsel.

In the absence of approved hybrid representation, a defendant who is represented by counsel has no authority to make tactical decisions contrary to those of his or her attorney. For example, it is trial counsel's prerogative to decide which witnesses to call. Moreover, a defendant who is represented by counsel is not entitled to argue personally without taking the witness stand.

If an accused has waived the right to retained or appointed counsel, a trial court has the discretion to appoint counsel to act as amicus curiae to represent the court during the trial in an effort to make sure that all of the accused's rights are protected. Such counsel may be directed to remain with the accused throughout the trial in an advisory capacity. This does not infringe on the defendant's right of self-representation as long as the defendant maintains actual control of the litigation and the jury's perception that the defendant is representing himself or herself is not destroyed. In such cases, the attorney is referred to as ``standby counsel.'' The proper role of standby counsel is quite limited. The defendant retains actual control over the case presented to the jury. Standby counsel is not empowered to substantially interfere with any significant tactical decisions, control the questioning of a witness, or speak in place of the defendant on any matter of importance. For example, standby counsel might explain basic rules of courtroom protocol or assist the defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task that the defendant has chosen to undertake. If, however, the defendant agrees to or permits any substantial participation in the trial by standby counsel, subsequent participation by counsel is presumed to be with the defendant's acquiescence unless the defendant unambiguously requests that counsel be silenced.

When a defendant requests self-representation, the trial court should clearly admonish the defendant that there is no automatic right to standby counsel. However, the court should also inform the defendant whether the court intends to allow standby counsel. In fact, the court has the authority to appoint standby counsel over the defendant's objection. The only issue that might arise from such an appointment is whether counsel then interfered with the defendant's right of self-representation. Acceptance of the court's offer of standby counsel does not mean the defendant has waived a prior asserted right of self-representation.

Waiver of Counsel

Once an accused asserts the right to self-representation, it is incumbent on the court to ascertain if the defendant is making a voluntary, knowing, and intelligent relinquishment of the right to counsel. The court must advise the defendant about the dangers and disadvantages of self-representation. It has been suggested that the trial court should give the defendant a direct admonishment that he or she will be bound by the rules of evidence and procedure, and that no concessions will be made because of the defendant's lack of legal training. In addition, the court should specifically delineate some of the problems that the unschooled defendant may face by undertaking self-representation. These admonishments should include an advisement that there is no right to standby counsel.

The failure to make the defendant aware of the dangers of self-representation may invalidate a waiver of counsel. It is not sufficient to merely explain the trial procedures to the defendant and ask if he or she understands them.

After the trial court determines that a waiver of counsel is being voluntarily and intelligently made, the court ``shall provide the defendant with'' a written statement of waiver that the defendant may sign to waive the right to counsel. If the defendant signs the statement, it must be included in the record of the case. However, the Court of Criminal Appeals has held that a written waiver of the right to counsel is not required under the statute when the defendant affirmatively asserts the right to self-representation. The requirement of a written waiver of counsel in such cases would protect the right to counsel at the expense of the right to self-representation. Thus, the statute is directory rather than mandatory, so a court does not err in failing to secure a written waiver before permitting a defendant to proceed pro se.

The validity of any waiver of counsel is usually judged by determining if the record demonstrates that it was executed voluntarily, knowingly, and intelligently. This is most commonly done by analyzing the admonishments from the court and the defendant's responses to them. The overall record is considered in this regard; there is no specific type of information that is necessary to justify a court's finding of a waiver of counsel. Similarly, it is impermissible for the court to require a showing of any particular legal knowledge on the part of the defendant as a prerequisite for a knowing and intelligent waiver of counsel. The type of inquiry that must be made depends upon whether the defendant is merely seeking to waive counsel or wishes to waive counsel and concomitantly exercise the right of self-representation.

A waiver of counsel is a voluntary relinquishment of the right to counsel. Therefore, it is not proper to force a defendant to proceed without counsel because of external circumstances. However, actions by a defendant that are deemed to be disruptive may be considered as the functional equivalent of a waiver of counsel.

Moreover, after a defendant asserts the right of self-representation, the court may compel a defendant to make a choice resulting in the waiver of counsel. For example, when the court offers to let appointed counsel remain as standby counsel, but the defendant seeks to have a different person appointed as standby counsel, the court may refuse a new appointment and leave the defendant with the choice of proceeding to trial with unwanted counsel or proceeding pro se.

The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.

Sec. 36.05. Tampering with Witness.(1) to testify falsely;

Sec. 36.05. Tampering with Witness.
(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence;
(4) to absent himself from an official proceeding to which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the prosecution of another.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a).
(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
(d) An offense under this section is a state jail felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 721, Sec. 1, eff. Sept. 1, 1997.

ongress shall have power to enforce this article by appropriate legislation.

Constitution of the United States of America

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


Article. I.
Section. 1.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.




Article. II.
Section. 1.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.




Article III.
Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.




Article. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.




Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.




Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.




Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, "the," being interlined between the seventh and eighth Lines of the first Page, the Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page.

Attest William Jackson Secretary

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

[Names of signers]

THE FIRST 10 AMENDMENTS TO THE CONSTITUTION AS RATIFIED BY THE STATES
(The Bill of Rights)

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not
be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the
common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.


Amendments 11-27

Amendment XI

Passed by Congress March 4, 1794. Ratified February 7, 1795.

Note: Article III, section 2, of the Constitution was modified by amendment 11.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Amendment XII

Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the
highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

*Superseded by section 3 of the 20th amendment.

Amendment XIII

Passed by Congress January 31, 1865. Ratified December 6, 1865.

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.

Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.
Congress shall have power to enforce this article by appropriate legislation.

Amendment XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

Amendment XV

Passed by Congress February 26, 1869. Ratified February 3, 1870.

Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.


Amendment XVI

Passed by Congress July 2, 1909. Ratified February 3, 1913.

Note: Article I, section 9, of the Constitution was modified by amendment 16.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Amendment XVII

Passed by Congress May 13, 1912. Ratified April 8, 1913.

Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Amendment XVIII

Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

Section 1.
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment XIX

Passed by Congress June 4, 1919. Ratified August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.


Amendment XX

Passed by Congress March 2, 1932. Ratified January 23, 1933.

Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

Section 1.
The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.
Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.


Amendment XXI

Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment XXII

Passed by Congress March 21, 1947. Ratified February 27, 1951.

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Amendment XXIII

Passed by Congress June 16, 1960. Ratified March 29, 1961.

Section 1.
The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXIV

Passed by Congress August 27, 1962. Ratified January 23, 1964.

Section 1.
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.


Amendment XXV

Passed by Congress July 6, 1965. Ratified February 10, 1967.

Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

Section 1.
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the
President shall resume the powers and duties of his office.

Amendment XXVI

Passed by Congress March 23, 1971. Ratified July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Section 1.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXVII

Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Exploring Constitutional Conflicts

Assert your rights .........the only thing you have to lose is your rights

Dallas Criminal Defense Lawyer
State & Federal Cases
Constitutional and Statutory Bases

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused has the right to the assistance of counsel for his or her defense. Under the due process clause of the Fourteenth Amendment, this right has been extended to persons accused of crimes in state prosecutions.

These constitutional provisions have been interpreted as requiring the appointment of counsel for an accused who is indigent. This right applies to all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony. However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed. Thus, a defendant is not entitled to appointment of counsel in a misdemeanor prosecution when the state asserts that it will not seek a jail sentence and the court's punishment is by fine only. Similarly, an accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment. The punishment under such circumstances must be limited to a fine.

The constitutional right to counsel is complemented by statutory provisions acknowledging a defendant's right to counsel in any adversarial judicial proceeding. This right includes the right to consult in private with counsel sufficiently in advance of a proceeding to insure adequate preparation. An indigent defendant is entitled to the appointment of an attorney for any adversarial judicial proceeding that may result in punishment by confinement and in any other criminal proceeding when the court concludes that the interests of justice require representation. Thus, whenever a court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice otherwise require representation of an indigent defendant the court must appoint one or more attorneys to defend him or her as soon as possible. A defendant does not waive the right to counsel by simply failing to request appointed counsel An attorney so appointed must represent the defendant until the charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved by the court or replaced by other counsel.

Each county with at least four county courts and four district courts may appoint a public defender to represent indigents. Moreover, certain other counties and judicial districts are authorized to appoint a public defender for each court or for the county as a whole.

It is common practice in Texas for judges to appoint two attorneys, rather than one, to represent an indigent defendant charged with a capital crime or a major felony. If the trial court appoints a single attorney at the outset, a pretrial motion may be used to request additional counsel. The right to counsel, whether retained or appointed, applies to proceedings other than those simply related to a determination of guilt or innocence of a criminal offense. For example, the right extends to probation revocation proceeding and extradition proceedings. It also applies to appellate and post conviction habeas corpus matters.

Choice of Counsel

The right to counsel gives rise to a no indigent's right to select counsel of his or her choice. Therefore, an accused must be afforded a fair opportunity to select and retain an attorney of his or her choosing. However, an accused's right to counsel of choice is not absolute, and it may not be manipulated to obstruct orderly procedure in the courts or interfere with the fair administration of justice.

Some of the factors that the appellate court will weigh in deciding if the defendant was denied the right to counsel of his or her choice when forced to trial with unacceptable counsel are as follows:

1. The length of the delay requested;
2. Whether other continuances were requested and the court's rulings on them;
3. The length of time that trial counsel had to prepare;
4. Whether another competent attorney was prepared to try the case;
5. The balance of convenience or inconvenience to the witnesses, opposing counsel, and trial court;
6. Whether the delay was for legitimate or contrived reasons;
7. Whether the case was complex or simple;
8. Whether the denial of the motion resulted in some identifiable harm to the defendant; and
9. The quality of the legal representation actually provided.

Under some circumstances, a defendant who has failed to secure counsel after being afforded a reasonable opportunity to do so may be forced to proceed without representation. A court may proceed with a matter in the absence of counsel when a nonindigent defendant, or an indigent defendant who has refused appointed counsel in order to retain private counsel, appears at a proceeding without counsel after having been afforded the opportunity to arrange representation. A court may take this action without securing a written waiver of counsel or appointing counsel. However, the defendant must have been provided with 10 days' notice that a dispositive setting was to take place.

Retroactivity of Right

The right to counsel is given retroactive application. This right as it retroactively applies attaches to every stage of the prosecution where substantial rights of an accused may be affected, including the appeal. Therefore, an accused who is imprisoned may be entitled to postconviction relief, such as habeas corpus, if he or she was deprived of the assistance of counsel at a critical stage of a former prosecution even though the law regarding the right to counsel was complied with at the time of trial.

The retroactivity of the right to counsel may also be significant even if the accused is not presently in custody because a conviction obtained in a former criminal proceeding where there was a violation of the accused's right to counsel is not properly admissible in a subsequent criminal proceeding. For example, an accused may prevent the prosecution from introducing a prior conviction that could otherwise be used for impeachment. An accused may also prevent a prior conviction from being used to support guilt or to enhance the punishment for another offense.

However, in a subsequent criminal proceeding an accused will not be able to prevent the introduction of a prior conviction obtained without counsel unless he or she can prove indigency or the absence of a waiver of the right to counsel in the former proceeding . If a prior judgment of conviction recites that the defendant was represented by counsel, there is a presumption that the defendant was represented by counsel during the proceedings up to the conviction. In addition, there is a distinction between the later use of an uncounseled conviction and the use of an uncounseled sentence. For example, although the use of a conviction obtained while the accused was without counsel is unavailable for enhancement, the fact that there might have been no attorney present at the sentencing does not render the underlying counseled conviction invalid for enhancement purposes. This same rule applies to the use of a prior conviction for impeachment. The fact that the accused was without counsel when probation was revoked does not mean that the counseled conviction placing the accused on probation may not be used for impeachment.

Hybrid Representation

Article 1, Section 10 of the Texas Constitution states that an accused in a criminal proceeding has the right to be heard by himself or herself or counsel, or both. Although the language of this provision would appear to grant an accused the right to represent himself or herself along with counsel, it has been held that this provision of the constitution does not expand or alter the right to counsel or in any way give the accused a right to such hybrid representation. Rather, Article 1, Section 10 affords the accused the right to testify at his or her trial and to be represented by counsel. Thus, there is no constitutional right in Texas to representation partially pro se and partially by counsel As a result, the trial court is empowered to reject a request for hybrid representation. In this regard, it has been held that a request for self-representation that is not accompanied by a waiver of the right to counsel constitutes a request for hybrid representation.

If the trial court approves a request for hybrid representation, a defendant may act pro se as well as through retained or appointed counsel. A defendant who requests and accepts hybrid representation may not later assert any claim about waiver of counsel.

In the absence of approved hybrid representation, a defendant who is represented by counsel has no authority to make tactical decisions contrary to those of his or her attorney. For example, it is trial counsel's prerogative to decide which witnesses to call. Moreover, a defendant who is represented by counsel is not entitled to argue personally without taking the witness stand.

If an accused has waived the right to retained or appointed counsel, a trial court has the discretion to appoint counsel to act as amicus curiae to represent the court during the trial in an effort to make sure that all of the accused's rights are protected. Such counsel may be directed to remain with the accused throughout the trial in an advisory capacity. This does not infringe on the defendant's right of self-representation as long as the defendant maintains actual control of the litigation and the jury's perception that the defendant is representing himself or herself is not destroyed. In such cases, the attorney is referred to as ``standby counsel.'' The proper role of standby counsel is quite limited. The defendant retains actual control over the case presented to the jury. Standby counsel is not empowered to substantially interfere with any significant tactical decisions, control the questioning of a witness, or speak in place of the defendant on any matter of importance. For example, standby counsel might explain basic rules of courtroom protocol or assist the defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task that the defendant has chosen to undertake. If, however, the defendant agrees to or permits any substantial participation in the trial by standby counsel, subsequent participation by counsel is presumed to be with the defendant's acquiescence unless the defendant unambiguously requests that counsel be silenced.

When a defendant requests self-representation, the trial court should clearly admonish the defendant that there is no automatic right to standby counsel. However, the court should also inform the defendant whether the court intends to allow standby counsel. In fact, the court has the authority to appoint standby counsel over the defendant's objection. The only issue that might arise from such an appointment is whether counsel then interfered with the defendant's right of self-representation. Acceptance of the court's offer of standby counsel does not mean the defendant has waived a prior asserted right of self-representation.

Waiver of Counsel

Once an accused asserts the right to self-representation, it is incumbent on the court to ascertain if the defendant is making a voluntary, knowing, and intelligent relinquishment of the right to counsel. The court must advise the defendant about the dangers and disadvantages of self-representation. It has been suggested that the trial court should give the defendant a direct admonishment that he or she will be bound by the rules of evidence and procedure, and that no concessions will be made because of the defendant's lack of legal training. In addition, the court should specifically delineate some of the problems that the unschooled defendant may face by undertaking self-representation. These admonishments should include an advisement that there is no right to standby counsel.

The failure to make the defendant aware of the dangers of self-representation may invalidate a waiver of counsel. It is not sufficient to merely explain the trial procedures to the defendant and ask if he or she understands them.

After the trial court determines that a waiver of counsel is being voluntarily and intelligently made, the court ``shall provide the defendant with'' a written statement of waiver that the defendant may sign to waive the right to counsel. If the defendant signs the statement, it must be included in the record of the case. However, the Court of Criminal Appeals has held that a written waiver of the right to counsel is not required under the statute when the defendant affirmatively asserts the right to self-representation. The requirement of a written waiver of counsel in such cases would protect the right to counsel at the expense of the right to self-representation. Thus, the statute is directory rather than mandatory, so a court does not err in failing to secure a written waiver before permitting a defendant to proceed pro se.

The validity of any waiver of counsel is usually judged by determining if the record demonstrates that it was executed voluntarily, knowingly, and intelligently. This is most commonly done by analyzing the admonishments from the court and the defendant's responses to them. The overall record is considered in this regard; there is no specific type of information that is necessary to justify a court's finding of a waiver of counsel. Similarly, it is impermissible for the court to require a showing of any particular legal knowledge on the part of the defendant as a prerequisite for a knowing and intelligent waiver of counsel. The type of inquiry that must be made depends upon whether the defendant is merely seeking to waive counsel or wishes to waive counsel and concomitantly exercise the right of self-representation.

A waiver of counsel is a voluntary relinquishment of the right to counsel. Therefore, it is not proper to force a defendant to proceed without counsel because of external circumstances. However, actions by a defendant that are deemed to be disruptive may be considered as the functional equivalent of a waiver of counsel.

Moreover, after a defendant asserts the right of self-representation, the court may compel a defendant to make a choice resulting in the waiver of counsel. For example, when the court offers to let appointed counsel remain as standby counsel, but the defendant seeks to have a different person appointed as standby counsel, the court may refuse a new appointment and leave the defendant with the choice of proceeding to trial with unwanted counsel or proceeding pro se.

The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.