John Ira Kercheville, Iii v. State

NUMBERS 13-01-226-CR & 13-01-229-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI JOHN IRA KERCHEVILLE, III, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the County Court at Law of San Patricio County, Texas. O P I N I O N Before Justices Dorsey, Yañez, and Rodriguez Opinion by Justice Yañez Appellant, John Ira Kercheville, was convicted by the trial court on two counts of assault. Punishment was assessed at a fine of $100 for each offense and 365 days confinement probated for a period of two years. Appellant=s sole point of error is that the trial court erred by failing to properly determine that appellant knowingly and intelligently waived his right to counsel. We reverse and remand. Background The facts are undisputed. Appellant was arrested on August 20, 2000, for assaulting Peter and Virginia Lazidis. At the morning arraignment on October 13, 2000, the judge informed everyone present in the courtroom to be charged: (1) that they were charged with misdemeanors; (2) the range of punishment for misdemeanors; (3) that they would have to decide whether they wanted to represented by counsel; (4) that they had a right to have court-appointed counsel if indigent; (5) that each defendant had a right to plead not guilty; (6) that each defendant had a right to a trial by judge or jury; and (7) that each defendant had the right to present evidence, call witnesses, testify or remain silent, and cross-examine witnesses. The trial court explained the right to counsel as follows: Now, I want you to understand something under the law. I know that you folks sitting out there are not attorneys. You=re not trained. You=re not licensed attorneys in the general practice of law in a court. You have (sic) to be a licensed attorney. But as a defendant in a criminal case, the law says you have an absolute right to represent yourself if you so desire. Now, whereas that is your right, let me explain to you that we=re going to be having a trial of your case as I=ve just described. That in the process, this Court will follow all the rules, regulations, and procedures, guidelines that are set down for the trial of criminal cases. That means simply we=re going to be following the Code of Criminal Procedure. We=re going to be following the Rules of Evidence that have been established by statute and, of course, we=re going to follow all the guidelines that have been set down by the interpretation of the constitution of the United States in its very inception. Also, understand the State will be represented in this court by a qualified and trained attorney. That means if there are motions that need to be filed, you=ll have to file them and you=ll have to know what motions have to be filed. You=ll have to know how to request hearings on motions. In the trial of the case, you=ll have to be basically examining witnesses yourself and you=ll have to know how to examine witnesses. You=ll have to know how to question witness (sic). You=ll have to know how to make proper objections at the proper time. You see, as a defendant in a criminal case, you have a lot of very important rights, but also understand the concept of the law is that in the trial of the case, the defendant has got to take proper steps and do things correctly to protect those rights. And if you don=t do that, what you (sic) law basically says is that you waive or give up those rights. And I tell you point blankly once the rights are lost in the trial of the case, very, very rarely can they ever be regained. Once you lose them, you lose them. So what I=m basically telling you is if you want a trial of your case, which it can be before a jury or before the judge, you really need to take steps to get an attorney to represent you so that we can see that you get a fair trial in the particular matter. After these instructions to the assembly, the appellant was called individually. He entered a plea of not guilty to both of the assault charges, then the following conversation occurred: COURT: Do you have an attorney to represent you? KERCHEVILLE: No. I=ll be my own attorney, Judge. COURT: You=re going to be your own attorney? KERCHEVILLE: That=s correct. COURT: Well, you have a right to do that. I discourage it if you=re going to be doing a trial of the case because you=re going to have to follow all the rules and procedures. Do you understand that? KERCHEVILLE: I=ll take care of it. I=m not guilty. The trial court set a pre-trial hearing date and informed appellant about the purpose of a pre-trial hearing. The trial court then spoke to the county attorney: COURT: Mr. Aken. MR. AKEN: Yes, your honor. COURT: This is Mr. Kercheville. He=s got two matters pending. Mr. Kercheville=s indicating that he=s elected to represent himself. I=ve kind of warned him on the problem with that but he=s insistent on doing that, but that=s his right. Also, advised him what we generally B what we call an open file policy, which means he=s entitled to see the report about him when he makes an application. MR. AKEN: Absolutely, your honor. COURT: You just see the county attorney=s office and they=ll take care of it and see that you get the discovery that you=re entitled to. MR. AKEN: Did you ask him some questions to make sure he=s capable? COURT: Not really. He=s just pretty insistent about it. It=s his right. I have warned him and the others here this morning the danger in representing themselves and we=re going to set for pre-trial and look B we=ll look at it at pre-trial. Okay. KERCHEVILLE: Judge, thank you very much. Although the cases were set for pre-trial hearing, no such pre-trial hearings were held. Appellant filed no pretrial motions, and it appears that no further proceedings occurred until trial. At the bench trial on March 13, 2001, appellant again represented himself. At the beginning, the trial court mentioned appellant=s waiver of jury trial and had appellant sign the appropriate jury waiver. Then the trial court briefly mentioned that appellant was representing himself, but the trial court did not ask appellant any further questions to determine his capability. Analysis Appellant contends that the trial court failed to make proper inquiry into whether his waiver of right to counsel was made knowingly and intelligently. AThe Sixth Amendment to the Constitution of the United States and Article 1, ' 10 of the Texas Constitution provide that a defendant in a criminal trial has the right to assistance of counsel.@ Williams v. State, 925 S.W.2d 272, 273 (Tex. App.BCorpus Christi 1996, no pet.). This right to counsel can be waived and the defendant may choose to represent himself. See id. (citing Faretta v. California, 422 U.S. 806, 835 (1975)). AA waiver of the right to counsel will not be >lightly inferred= and the courts will indulge every reasonable presumption against the validity of such a waiver.@ Williams, 925 S.W.2d at 274 (citing Johnson v. Zerbst, 304 U.S. 458 (1938), and Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978)). In order for a waiver of counsel to be valid, the appellant must make a knowing and intelligent waiver, and the appellant must be made aware of the dangers and disadvantages of self-representation. Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2002); See Williams, 925 S.W.2d at 274. In the present case, the trial court admonished the assembled group present for arraignment, including appellant, as to the dangers and disadvantages of self-representation. Thus, the issue here is whether the appellant=s waiver was made knowingly and intelligently. ATo decide whether a defendant=s waiver is knowing and intelligent, the court must make an inquiry, evidenced by the record, which shows that the defendant has sufficient intelligence to demonstrate a capacity to waive his right to counsel . . . .@ Williams, 925 S.W.2d at 274 (citing Geeslin v. State, 600 S.W.2d 309, 313 (Tex. Crim. App. 1980)). There is no formulaic line of questioning to establish a knowing and intelligent waiver of the right to counsel, but the trial court must investigate as long and as thoroughly as the circumstances of the case demand. See id. Several courts propose that a proper inquiry includes, at the least, questions regarding the accused=s age, background, education and experience. See Williams, 925 S.W.2d at 274 (citations omitted). The cases finding a knowing and intelligent waiver without a specific inquiry into background and experience contained additional facts or evidence that support the conclusion that the trial court found the defendant of sufficient intelligence and acumen. See id. (citations omitted). AAnything short of . . . an active pursuit into the intelligent and knowing aspects of the waiver will not meet the burden placed upon the court in such a situation.@ Id. [A] judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge=s responsibility . . . . A judge can make certain that an accused=s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. Id. at 275 (quoting von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948)). In this case, the trial court made no inquiry into appellant=s background, age, education, experience or any other characteristic or accomplishment which would indicate that the appellant had the capacity to fully appreciate the consequences of his actions. See id. Also, there is nothing in the record which would support that conclusion outside such a specific inquiry. See id. In fact, the county attorney brought up the matter of inquiring into appellant=s capability and the trial court acknowledged that the matter had not been addressed yet. The trial court apparently recognized the need for such an inquiry and scheduled a pre-trial hearing to Alook at it.@ However, there is no record that a pre-trial hearing ever took place. So, it appears that appellant=s insistence convinced the trial court of his capability to represent himself. This important decision cannot be so easily implied. Therefore, we hold that the trial court erred in failing to properly determine that appellant knowingly and intelligently waived his constitutional rights to counsel. The record does not show that the trial court made any effort to assess the ability of the appellant to make a knowing and intelligent waiver. Accordingly, we reverse and remand for a trial consistent with this opinion. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 1st day of August, 2002.