COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BABATUNDE KAYODE ADIO,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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No. 08-13-00237-CR 

Appeal from the

County Court at Law # 1

of Wise County, Texas 

(TC# CR-67925) 

CONCURRING OPINION

I agree with the majority opinion’s conclusion, but write separately to address an 

important distinction in the law applicable to misdemeanor cases. In 2011, the trial court gave 

Babatunde Kayode Adio written admonishments regarding his right to be represented by 

counsel, his right to appointed counsel if he could not afford to hire a lawyer, and his right to 

represent himself. Additionally, the court warned Appellant about the dangers and disadvantages 

of self-representation. Appellant signed the form indicating that he wished to waive his right to a 

lawyer, but he subsequently asked for and was provided with appointed counsel. Appellant was 

represented by appointed counsel when he entered a negotiated guilty plea to the misdemeanor 

resisting arrest charge in October of 2011. After the State filed its motion to proceed with an 

adjudication of guilt in January 2012, Appellant hired an attorney and Abe Factor entered his 
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appearance in March 2012. Mr. Factor filed a motion to withdraw on November 30, 2012 based 

on a “conflict of interest” and the trial court granted that motion. The State filed an amended 

motion to adjudicate on January 29, 2013 and the trial court set the hearing on the motion for 

July 10, 2013. Although more than seven months had passed since counsel had withdrawn, 

Appellant still had not retained counsel. According to the comments made by the trial judge at 

the hearing, Appellant had represented to the court on several occasions that he was going to 

enter a plea of true to the motion to adjudicate and the court had set the case for a plea, but 

Appellant had not entered a plea and the case had been repeatedly re-set.

The Court of Criminal Appeals made clear in Hatten v. State that the admonishment 

requirements of Faretta v. California1are not invoked by a misdemeanor defendant who waives 

his right to representation by counsel and does not contest his guilt. Hatten v. State, 71 S.W.3d 

332, 334 (Tex.Crim.App. 2002). In such a case, “the issue is not whether the trial court 

admonished the accused of the dangers and disadvantages of self-representation (pursuant to 

Faretta), but rather whether there was a knowing, voluntary, and intelligent waiver of counsel.”

Hatten, 71 S.W.3d at 334, quoting Johnson v. State, 614 S.W.2d 116, 119 (Tex.Crim.App.

1981)(op. on reh’g).

The record before us reflects that Appellant initially entered a plea of true to one 

allegation at the beginning of the hearing, but after some discussion with Appellant the trial court 

entered a plea of not true as to all of the allegations and the State introduced evidence in support 

of its motion.2 Once that plea of not true occurred, the trial court was required to determine 

 

1

 Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

2

 When asked whether he pled true or not true to the allegations, Appellant stated: “Sir, in everything the only

ones [sic] that was true is that I picked up a new charge in Tarrant County.” The motion to adjudicate alleged that 

Appellant violated the terms and conditions of community supervision by committing the offense of assault/family 

violence on December 7, 2011 in Tarrant County.
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whether Appellant knowingly, voluntarily, and intelligently waived his right to counsel and 

admonish him in accordance with Faretta before proceeding with the adjudication hearing.

As noted above, the trial court provided written Faretta admonishments to Appellant in 

2011 and Appellant waived his right to counsel, but he almost immediately reasserted his right to 

counsel and the court appointed an attorney to represent him. By retaining counsel to represent 

him in connection with the State’s motion to adjudicate, Appellant continued to assert his right to 

counsel. Under these circumstances, I conclude that the trial court was required to repeat the 

Faretta admonishments at this new stage of the proceedings and determine whether Appellant 

was making a valid waiver of the right to counsel. Because the record does not affirmatively 

show that Appellant knowingly, voluntarily, and intelligently waived his right to counsel after 

being administered the Faretta warnings, I agree with the majority that Appellant’s right to 

counsel was violated.

August 21, 2015

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)