AFFIRM; Opinion Filed November 19, 2013. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 12
- 01520
- CR DARRYL RAYNARD GORDO N , Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 30600
- 422 

### MEMORANDUM OPINION Before Justices FitzGerald, Francis, and Myers Opinion by Justice Myers Appellant Darryl Raynard Gordon was convicted by a jury of ev ading arrest or detention with a motor vehicle and sentenced by the jury to life imprisonment. In one issue, he argues the trial court did not adequately admonish him concerning the dangers and disadvantages of self

representation, thereby violating appel lant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution and Article 1.051 of the Texas Code of Criminal Procedure. We affirm.
D ISCUSSION In his issue, a ppellant argues the trial court’s admonishments did not go far enough and that “ the court should have delved further and deeper into [ a ] ppellant’s intelligence, competence, and knowledge of the ramifications of self

- representation. ” Appellant contends the se failures by the trial court violated the Sixth and Fourteenth Amendments of the United States C onstitution as– 2

– well as article 1.051 of the Texas Code of Criminal Procedure. The State responds that the trial
court adequately admonished appellant regardi ng the dangers and disadvantages of self

representation, and that any deficiency in the admonishments was harmless because appellant was afforded stand

- by counsel. Federal and state law guarantee a criminal defendant the right to the assistance of counse l as well as the right to waive counsel and represent himself. See U.S. C ONST
. amend. VI & XIV;
T EX
. C ONST . art. 1 § 10; T EX
. C ODE C RIM
. P ROC
. A NN . art. 1.05 (West 2005) (accused “shall have right of being heard by himself, counsel, or both”); Faretta v. California , 422 U.S. 806,
818

– 820 (1975); Hatten v. State , 71 S.W.3d 332, 333 (Tex. Crim. App. 2002). In Faretta , the U.S. Supreme Court established the independent right of self

- representation, in addition to the previously recognized right to waive the assistance of counsel. Faretta , 422 U.S. at 8 19

– 8 2 0 A defendant can choose to proceed pro se by exercising his right of self

- representation.
See T EX
. C ONST . art. 1 § 10 (“[an accused] shall have the right of being heard by himself

. . . ”);
Faretta , 422 U. S. at 818

– 820 (1975); Moore v. State , 999 S.W.2d 385, 396 (Tex. Crim. App. 1999); Collier v. State , 959 S.W.2d 621, 625 (Tex. Crim. App. 1997); Geeslin v. State , 600 S.W.2d 309, 313 (Tex. Crim. App. 1980). When the right of self

- representation was establi shed
in Faretta , the Supreme Court stated that “[a]lthough a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self

- representation, he should be made aware of the dangers and disadvantages of self

- representation .

. . . ” Faretta , 422 U.S. at 835; see also Blankenship v. State , 673 S.W.2d 578, 583 (Tex. Crim. App. 1984);
Martin v. State , 630 S.W.2d 952, 954 (Tex. Crim. App. 1982); Collier , 959 S.W.2d at 626. Once the defendant asserts his right of self

- representation, the trial court must advise the accused of the dangers and disadvantages of self

- representation. Ex parte Winton , 837 S.W.2d 134, 135 (Tex. Crim. App. 1992); Williams v. State , 774 S.W.2d 703, 705 (Tex. App.

–– Dallas 1989, pet. ref ’ d).– 3

– But when the trial court appoints stand

- by counsel, th os e admonishments are not required. Walker v. State , 962 S.W.2d 124, 126

– 27 (Tex. App.

–– Houston [1st Dist.] 1997, pet. ref ’ d); Robertson v. State , 934 S.W.2d 861, 865

– 66 (Tex. App.

–– Houston [14th Dist.] 1996, no pet.); see also Maddox v. State , 613 S.W.2d 275, 286 (Tex. Crim. App. 1980) (op. on motion for reh ’ g) (admonishment required only where defendants represent themselves without assistance of counsel); Newkirk v. St ate , No. 05

– 12

– 00202

– CR, 2013 WL 222278, at *2 (Tex. App.

–– Dallas Jan. 22, 2013, no pet.) (not designated for publication); Sumrell v. State , No. 05

– 09

– 00238 & 39

– CR, 2010 WL 3123302, at *2 (Tex. App.

–– Dallas Jan. 26, 2011, pet. ref ’ d) (not designated for publication)

. W here hybrid representation is allowed or standby counsel appointed, no question of waiver of counsel is involved because counsel remains to assist the defendant , and , as a result, there is no need to admonish the defendant of the dangers an d disadvantages of self

- representation. See Maddox , 613 S.W.2d at 286; Robertson , 934 S.W.2d at 865 ; Newkirk , 2013 WL 222278, at *2. The record in this case shows that appellant signed a one

- page document entitled “Notice Concerning Dangers and Disadvanta ges of Self

- Representation and Notice Concerning Financial Inability to Hire An Attorney” on April 4, 2012, over six months before the start of trial. On April 9, 2012, the court appointed trial counsel for appellant. Trial counsel sought leave to withdr aw in a motion filed on September 13, 2012. On September 24, 2012, a hearing was held on the motion to withdraw. During the hearing, appellant told the court several times he wanted to represent himself. The trial court repeatedly warned appellant against self

- representation: Let me just say that is a very dangerous thing for you to do. I don’t recommend it. There are many hazards involved. * * * * As [trial counsel] indicated, you have a constitutional right to represent yourself. There are gr eat dangers in doing that. I would never recommend to any defendant that they represent themselves. You ’ re held to the same rules of evidence and– 4

– procedure as a trained lawyer. You obviously don ’ t have that training. There ’ s no way in my opinion you ca n adequately represent yourself on what appear to be four different cases. * * * * You have the right to represent yourself; but if you opt to do that, then you represent yourself. If I put a lawyer in a stand

- by position to be available for advice, that means he can give you some advice; but he ’ s not going to be the one interrogating the witnesses. He ’ s not going to be the one doing the voir dire. He ’ s not going to be the one objecting to evidence. He ’ s not going to be the one trying to defend an obje ction. You ’ re going to be held to the same standards as a board certified lawyer on procedure and evidentiary matters. And frankly, there is no way you could be up to speed on it. * * * * So I don ’ t recommend it. I think you ’ re dealing with fire without having a hose to fight the blaze. And so I don ’ t suggest or recommend that you do it. You have the absolute right to do it if you want to, but I don ’ t suggest it and don ’ t recommend it. Before granting trial counsel’s motion to withdraw, the trial court asked appellant: THE COURT: Okay. All right, Mr. Gordon, let me be crystal clear with you on this. You are electing to represent yourself, is that correct? THE DEFENDANT: Yes, sir. THE COURT: On all four cases? THE DEFENDANT: Yes, sir. THE COURT: O kay. I’m going to grant your motions to withdraw on all four cases. A fter granting the motion to withdraw , the trial court subsequently appointed stand

- by counsel for appellant

. At a pretrial hearing held on October 25, 2012, shortly before the start of trial, appellant announced ready for trial and was again admonished regarding the enhanced punishment range s for all four of his pending cases. The trial court reiterated that appellant would be allowed to represent himself at trial, and the court expl ained to appellant the limits of stand

- by counsel’s involvement in the case. The court reviewed appellant’s duties in the voir dire process, and, in– 5

– response to appellant’s inquiries, the prosecutor clarified which witnesses would likely be called in the State’s case - in

- chief. When the case was called for jury trial on October 29, 2012, the trial court began by noting stand

- by counsel ’s presen ce and availab ility to act in an advisory role f o r appellant. After appellant entered a not

- guilty plea outside the jury’s presence, the trial court admonished appellant regarding the charged offense 1 and the right to appointed counsel. Appellant agreed he wanted the previous attorney removed from the case, but advised the court he did not want to waive his right to counsel because a waiver might harm him “in the appeal process. ” After the court explained to appellant that he would have to waive his right to counsel if he wanted to represent himself, appellant signed a written waiver of the right to counsel and an nounced he was ready for trial. The trial court then admonished appellant regarding the right to a jury trial and the Fifth Amendment right not to testify. Appellant indic a ted he would not testify. The trial court further admonished appellant of his rig ht to call witnesses and to confront and cross

examine the State’s witnesses. The record here shows appellant’s ability to communicate clearly, conduct himself appropriately and respectfully, proceed in an orderly fashion, cross

examine the State’s witnes s, object ( with the assistance of stand

- by counsel ) to the submission of a deadly weapon issue in the jury charge at guilt

- innocence , and deliver closing argument s at both the guilt

- innocence and punishment phases of the trial

. Stand

- by counsel was presen t in court throughout the trial. 2

1 The trial court explained to appellant that if he was convicted of the charge in the indictment, and if the State proved the two enhancement paragraphs, appellant’s range of punishment would increase to a minimum of 25 ye ars and up to 99 years or life in prison. 2 After the jury retired to deliberate appellant’s punishment, he a f firmed that stand

- by counsel had been available throughout the trial: THE COURT: Back on the record. The jury is outside the presence of the court. [STAND

- BY COUNSEL]: Mr. Gordon, this is the conclusion of evidence and arguments in the case. I just want to ask you one last time. Knowing that the Court appointed me as essentially standby counsel or resource, not necessarily your lawyer, have y ou had the opportunity to ask me any questions throughout this proceeding that you needed to? THE DEFENDANT: Yes, sir, I have.– 6

– This Court has previously held that when , as in this case, a defendant has standby counsel at his disposal, a trial court is not required to admonish a defendant on the dangers and disadvantages of self

- representation. Se e, e.g., Newkirk , 2013 WL 222278, at *3, Sumrell , 2010 WL 3123302, at *2

. We therefore reject appellant’s contention that the trial court failed to adequately advise appellant of the dangers and disadvantages of self

- representation

. The record shows a ppellant had stand

- by counsel at his disposal throughout the trial of this case , and that appellant was r epeatedly admonished by the trial court regarding the dangers and disadvantages of self

- representation. A ccordingly , appellant’s constitutional and st atutory rights were not violated. W e overrule appellant’s issue. We affirm the trial court’s judgment. /s/ Lana Myers LANA MYERS JUSTICE Do Not Publish TEX. R. APP. P. 47 121520F.U05

[STAND

- BY COUNSEL]: And are you satisfied I’v e answered to the best of my abilities, given you maybe not the answers that you wanted, but a correct recitation of the law? THE DEFENDANT: Yes, sir. [STAND

- BY COUNSEL]: Nothing further.– 7

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DARRYL RAYNARD GORDON, Appellant No. 05

- 12

- 01520

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 30600

- 422. Opinion delivered by Justice Myers. Justices FitzGerald an d Francis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 19th day of November, 2013.

/Lana Myers/ LANA MYERS JUSTICE