1

NO. 24442-A

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

DANNY CALAMACO,

PETITIONER 

V.

THE STATE OF TEXAS,

RESPONDENT 

PETITION FOR DISCRETIONARY REVIEW

NO. 11-13-00066-CR

COURT OF APPEALS

FOR THE 11TH DISTRICT OF TEXAS 

AT EASTLAND

On appeal from Cause Number 24442-A

In the 42nd District Court of Taylor County, Texas

Honorable John W. Weeks, Judge Presiding

_______________________________________________________

Paul W. Hanneman James Eidson

Attorney for Petitioner District Attorney Taylor County 

SBN: 08925500 300 Oak Street

1305 Lamar Street Abilene, Texas 79602

Sweetwater, Texas 79556 325-674-1261

325-235-4777 325-674-1306 - Fax

325-235-4777 – Fax

pwhlawoffice@gmail.com 

 
2

Lisa McMinn 11th Court of Appeals Clerk

State Prosecuting Attorney Sherry Williamson

P.O. Box 13046 P.O. Box 271

Austin, Texas 78711 Eastland, Texas 76448

ORAL ARGUMENT REQUESTED 

TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES .................................................... 3

STATEMENT REGARDING ORAL ARGUMENT ....................... 4

STATEMENT OF THE CASE ................................................ 4

STATEMENT OF PROCEDURAL HISTORY ............................ 5

GROUNDS FOR REVIEW ...................................................... 5,6

STATEMENT OF FACTS ...................................................... 7

ARGUMENTS AND AUTHORITIES ..................................... 9,14,16

PRAYER FOR RELIEF ......................................................... 23

CERTIFICATE OF SERVICE .................................................. 24

APPENDIX .......................................................................... 26
3

INDEX OF AUTHORITIES

CASES

Davis v. State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 

(Feb. 27, 1974 Supreme Court of United States) .....................................19

United States v. Gonzales-Lopez; 548 U.S. 140, 126 S. Ct. 2557, 165 

L.Ed.2d 409 (June 26, 2006 Supreme Court of United States)............... 22

Faretta v. State of California; 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 

(June 30, 1975)............................................................ 9,10,12,14,20

Gobert v. Court of Criminal Appeals of Texas; 717 S.W.2d 21 

(Tex.Crim.App. 1986)............................................................... 20,21

Davis v. State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007)............... 22

Williams v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)..10,14,22

Johnson v. United States; 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 

(May 12, 1997 Supreme Court of United State).............................. 19,13

Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 

(Supreme Court of the United States May 1984)................................ 19

Medley v. The State of Texas; 47 S.W.3d 17 (Tex.App. – Amarillo 2000).19

Arizona v. Fulminante;499 U.S. 279, 111 S.Ct.1246, 113 L.Ed.2d 302.19,22

Adams v. United States ex rel. McCann; 317 U.S. at 279, 63 S.Ct., at 242.9

Powell v. State; 632 S.W.2d 354, 355 (Tex. Crim. App 1582) ........... 10,20

Lewis v. State; 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6, 2014) 

(mem. Op., not designated for publication), pet. granted, (Tex. Crim App. 

Sept. 17, 2014) (No. PD-0307-14)................................................... 16

Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 

2015)................................................................... 5,6,8,13,16,18,21

Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023.................... 9

Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 (1986).19

Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54, 79

L.Ed.2d 122 (1984)...................................................................... 19

Heredia v. State, 528 S.W.2d 847 (Tex. Crim. App. 1975)............... 20,21

Sullivan v. Louisiana, 508 U.S. 275, 282.......................................... 22

RULES AND STATUTORY PROVISIONS

TEX.R.App.Pro.66, et seq. ............................................................ 4

TEX.CODE.CRIM.PROC.Art 1.051 ................................................ 4
4

STATEMENT REGARDING ORAL ARGUMENT

In the event this petition is granted, the Petitioner requests oral 

argument. Argument would assist the Court because resolution of the 

grounds for review depends upon a detailed exploration of the facts of the 

case. Further, oral argument would provide this Court with an opportunity to 

question the parties regarding their positions. 

Appellant has raised important questions of first impression in this 

Court and believes that oral argument would help clarify the issues 

presented in his petition for discretionary review. Therefore, he respectfully 

requests oral argument. 

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL

APPEALS:

COMES NOW, DANNY CALAMACO, Appellant in this cause, by and 

through his attorney of record, Paul W. Hanneman, and, pursuant to the 

provisions of TEX.R.App.Pro.66, et seq., moves this Court to grant 

discretionary review, and in support will show as follows.

STATEMENT OF THE CASE
5

Appellant was indicted in Cause No. 24,442-A for Murder, with a 

deadly weapon allegation and enhanced in a second paragraph with three 

prior felony convictions (CR, Vol. 1, 7; 8). On January 24, 2013 the jury 

found Appellant guilty (CR, Vol. 1, p. 177) and the Court assessed 

punishment at Life confinement in the State penitentiary (CR Vol. 1, p 184; 

RR vol. 11, p. 9). Appellant gave timely notice of appeal on February 22, 

2013 (CR Vol. 1, p. 194) and also filed a Motion for New Trial (CR Vol. 1, p. 

189-193) which, after a hearing was overruled on April 05, 2013 (CR Vol. 1, 

p. 204; RR Vol. 12, p. 45).

STATEMENT OF PROCEDURAL HISTORY

The conviction was affirmed in an opinion designated for publication

by the 11th District Court of Appeal. Calamaco v. State, No. 11-13-00066-

CR (Tex. App. Eastland 2015), delivered April 09, 2015. Appellant 

requested an extension of time to file a PDR, which was granted. This 

petition is due on June 10, 2015, and therefore, it is timely filed. 

GROUND FOR REVIEW ONE
6

The Court of Appeals erred when it found that Appellant was properly

admonished regarding his waiver of counsel and granted Appellant’s 

waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-

00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

GROUND FOR REVIEW TWO

The Court of Appeals erred when it found that Appellant entered a 

knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. 

State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

GROUND FOR REVIEW THREE

The Court of Appeals erred when, although it correctly found that the 

trial court erred by depriving Appellant of counsel during voir dire, it then 

incorrectly found the error to be non-structural error and further erred by

applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v. 

State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 9.

STATEMENT OF FACTS
7

Prior to Voir Dire in his trial on the charge of Murder in this cause, 

immediately after his plea of “Not Guilty” was entered, Appellant, who at the 

time was represented by court-appointed counsel, Monte Sherrod,

requested that he be allowed to represent himself. (RR, Vol. 7, p. 8). The 

Trial Judge examined Appellant regarding his qualifications. The Court 

informed Appellant that if Appellant waived his right to counsel and 

represent himself instead, that Appellant could change his mind. The Court 

told Appellant “You understand that you can change your mind?” (RR, Vol. 

7, p. 13). The trial court judge went further to say; “I mean, if you were to 

start to represent yourself you could say, well, this is going not like I 

thought it would. It’s harder than I thought it would be. I want to change my 

mind and tell the Judge and let Mr. Sherrod start representing me. You 

understand that?” (RR, Vol. 7, P. 13).

The trial court judge further admonished Appellant, before the waiver:

“Now listen, I told you you could change your mind. So 

be sure and tell me. Don’t just sit there and suffer. It’s not 

necessary. Okay? Because you’re going to be missing a 

lot of things. And you’ve never done a voir dire and you 

don’t even know what to say to them.” (RR, Vol. 7, p. 16)
8

The Trial Judge granted Appellant’s motion to let Appellant represent 

himself and brought the jury in. (RR, Vol. 7, p. 18). During his presentation 

of the defense’s portion of voir dire, Appellant did in fact change his mind 

and asked the Court to “remove my motion to represent myself and ask for 

Mr. Sherrod’s representation.” (RR, Vol. 7, p. 60). Appellant stated that he 

wanted his attorney to do the voir dire. (RR, Vol. 7, p. 60). The Trial Judge 

refused Appellant’s request, and did not let Mr. Sherrod start representing 

Appellant but instead required Appellant to complete voir dire before the 

Court would allow Appellant to have counsel represent him before the jury. 

Mr. Sherrod did not take part in voir dire due to the Trial Judge’s failure to 

rule consistently with the admonishment he gave Appellant except that he 

was present on “standby”. 

GROUND FOR REVIEW ONE RESTATED

The Court of Appeals Erred when it found that Appellant was properly 

admonished regarding his waiver of counsel and granted Appellant’s 

waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State, No. 11-13-

00066-CR, 11th Court of Appeals April 9, 2015, at page 7.
9

ARGUMENT

Review of Ground For Review One is proper because the Court of 

Appeals decision has decided an important question of state and federal 

law that has not been, but should be settled by the Court of Criminal 

Appeals.

Review of Ground For Review One is proper because the Court of 

Appeals has decided an important question of state and federal law in a 

way that conflicts with the applicable decisions of the Court of Criminal 

Appeals and the Supreme Court of the United States. 

The Court of Appeals found that the trial court adequately 

admonished the Appellant regarding the possible consequences of the 

waver of counsel so that Appellant could enter a knowing and intelligent 

waiver. In Faretta v. California the U.S. Supreme Court ruled that to waive 

the right to counsel the accused must “knowingly and intelligently” forgo 

that right, citing, Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023. 

To that end, the trial court must make the defendant “aware of the dangers 

and disadvantages of self-representation, so that he knows what he is 

doing and his choice is made with eyes open”, citing Adams v. United 

States ex rel. McCann, 317 U.S. at 279, 63 S.Ct., at 242. Faretta v. 
10

California 422 U.S. 806 at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562. Faretta

established that part of making the record establish that the defendant 

knows what he is doing and his choice is made with eyes open is 

admonishing the defendant that he would be required to follow all the 

“ground rules” of trial procedure.

The Texas Code of Criminal Procedure provides, in part, that in such 

circumstances the trial court shall “advise” the defendant of the “dangers 

and disadvantages of self representation”. Tex. Code Crim. Proc. Art. 

1.051(g).

When the record does not affirmatively show that the defendant was 

sufficiently admonished before defendant’s waiver of counsel is allowed as 

is required by Faretta, it is reversible error not subject to harm analysis. 

Williams v. State, 252 S.W.3d 353, Powell v. State, 632 S.W.2d 354, 355 

(Tex. Crim. App 1582)

At Appellant’s trial the judge advised Appellant, before allowing him to 

represent himself, that Appellant could change his mind even if he were to 

start representing himself, that he could tell the judge and “let Mr. Sherrod 

start representing” Appellant. The Court’s advise referred to Appellant 

changing his mind during the voir dire process when he told Appellant:
11

“Now listen, I told you you could change your mind. So be 

sure and tell me. Don’t just sit there and suffer. It’s not 

necessary. Okay? Because you’re going to be missing a 

lot of things. And you’ve never done a voir dire and you 

don’t even know what to say to them.” (RR, Vol. 7, p. 16)

But when, following the procedure the judge outlined, Appellant 

attempted voir dire on his own and changed his mind, the judge would not 

let him have his lawyer back to do voir dire. It is clear from the record that 

Appellant believed that the judge would let Mr. Sherrod finished the voir 

dire. 

“THE DEFENDANT: That’s fine. At this time I would like to 

move the court to remove my motion to represent myself and 

ask Mr. Sherrod’s representation.

“THE COURT: Do you want him to do the voir dire?

“THE DEFENDANT: Yes, sir.”

(RR Vol. 7, p. 60)

The judge erroneously told Appellant “I can’t” allow Appellant to have 

his attorney address the jury on voir dire. (RR Vol. 7, p. 60). 

It was not until voir dire was completed, that the judge allowed Mr. 

Sherrod to actively participate in the trial by agreeing to excase some 
12

potential jurors, then, a jury was sworn and the court recessed for lunch. 

When the court re-convened, Appellant once again requested that he be 

allowed to “withdraw my motion for self-representation”. The mixed signals 

and erroneous instructions to Appellant evidentially confused him about his 

right. Mr. Sherrod represented Appellant to the conclusion of the trial.

The issue to be before the Court of Criminal Appeals is that when the 

trial court gives such misleading advise (intentionally or not) does that 

advise fulfill the requirements of Faretta? The Court did not advise or 

admonish Appellant of the danger and disadvantage that the court could, 

under some circumstances, deprive Appellant of counsel to prevent the 

disruption of the orderly progress of the trial, or perhaps; as the State has 

argued; to disallow hybred representation. The court did not advise or 

admonish that the Appellant would have to follow the ground rules of 

procedure but that the judge might make an error that would deprive 

Appellant of counsel during a critical phase of trial and that the court, in 

effect did not have to follow the rules of procedure because the judge’s 

error might be deemed to be “harmless.”

In short, the trial court told Appellant the law was one thing and then,

after being approached by the Assistant District Attorney, the court decided 

the law was another thing and erroneously deprived Appellant of counsel. 
13

Appellant was led to believe that the law was that he did not “have to 

suffer” without an attorney, that he could change his mind “...and tell the 

Judge and let Mr. Sherrod start...” RR Vol. 7, p.13. The Appellate court did 

not apply the Faretta standard that a defendant must be advised or 

admonished in such a way that if he enters a waiver of counsel so that he 

does so having been told of the disadvantages and dangers of selfrepresentation and that he make a choice with eyes open.

If Faretta is to be modified to allow the trial court to advise a 

defendant erroneously on the law or to advise a defendant that the law 

protects the defendant in a certain way and then in the same trial to deprive 

the same defendant of that protection, then it should be the Court of 

Criminal Appeals that delineates standards and limitations on this practice

to guide the courts and the public in the future.

GROUND FOR REVIEW TWO

The Eleventh Court of Appeals Erred when it found that Appellant

entered a knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60.

Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 

2015, at page 7.
14

ARGUMENT

Review of Ground For Review Two is proper because the Court of 

Appeals decision has decided an important question of state and federal 

law that has not been, but should be settled by the Court of Criminal 

Appeals.

Review of Ground For Review Two is proper because the Court of 

Appeals has decided an important question of state and federal law in a 

way that conflicts with the applicable decisions of the Court of Criminal 

Appeals and the Supreme Court of the United States. 

In order for Appellant’s waiver of counsel which was entered before 

voir dire commenced at trial herein to have been valid, it must have been 

given competently, knowingly, intelligently and voluntarily; it is his 

constitutional right to elect to do so and to represent himself. (U.S. Const., 

amend. VI; Tex.Const.Art. 1, Sec 10; Faretta v. California, 422 U.S. 806, 

819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Williams v. State, 252 S.W.3d 

353, 356 (Tex.Crim.App. 2008)

The Appellate Court in this case found that Appellant knowingly and 

intelligently waived his right to counsel prior to voir dire. However, the 

record reflects that Appellant could not have given a knowing, intelligent 

nor voluntary relinquishment of his right to counsel at this critical phase of 
15

trial because he was misinstructed by the Trial Court as to what could and 

would happen and was misinformed as to how the law would eventually be 

carried out regarding his waiver of right to counsel and further, Appellant 

relied on that misinformation to his detriment in waiving his right to counsel.

Because the Court undertook to inform Appellant of the law pertinent 

to his decision to have counsel withdrawn and to represent himself and that 

information was substantially incorrect and erroneously applied, the 

Appellant cannot be said to have given knowing, intelligent, and voluntary 

waiver. A defendant should be able to rely on the Court’s advice and here, 

Appellant did so to his detriment, his eyes closed by the advice of the trial 

court.

Appellant relied on the trial court’s representation that the court would 

not commit the error of depriving Appellant of Counsel if Appellant waived 

his right to counsel. The trial court then committed the error, depriving

Appellant of counsel during a critical phase of the trial; voir dire. Only if the 

trial court had advised Appellant that the court could deprive him of counsel 

regardless of the court’s representation that it would not deprive him of 

counsel and further that, if the court deprived him of counsel, Appellant 

might have no remedy at law because it might be harmless error and then

Appellant decided to go ahead and waive the right to counsel could the 
16

waiver have been said to have been entered by Appellate with his eyes 

open, aware of the dangers and disadvantages, knowing, intelligently and 

voluntarily. If Texas courts are to modify Faretta and it’s progeny, then it 

should be the Court of Criminal Appeals that delineates these standards 

and which sets limitations on this practice, resolving any conflicts.

GROUND FOR REVIEW THREE

The Court of Appeals erred when, although it correctly found that the 

trial court erred by depriving Appellant of counsel during voir dire, it then 

incorrectly found the error to be non-structural error and further erred by 

applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v. 

State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

ARGUMENT

Review of Ground For Review Three is proper because this Court 

has recently granted review of a PDR with a similar issue Lewis v. State, 

No. 02-12-00246-CR, 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6, 

2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim 

App. Sept. 17, 2014) (No. PD-0307-14). The issue presented in the parties’ 

briefs to the Court of Criminal Appeals in Lewis is whether the proper 
17

standard of review on appeal was de novo or abuse of discretion. In Lewis

the trial court denied the defendant’s request for court appointed counsel to 

represent him during voir dire and subsequently, throughout trial when he 

attempted to withdraw his waiver of court appointed counsel.

Review of Ground For Review Three is proper because the Court of 

Appeals’ decision has decided an important question of state and federal 

law that has not been, but should be settled by the Court of Criminal 

Appeals.

Review of Ground For Review Three is proper because the Court of 

Appeals has decided an important question of state and federal law in a 

way that conflicts with the applicable decisions of the Court of Criminal 

Appeals and the Supreme Court of the United States. 

Review of Ground For Review Three is also proper because the 

question of whether a partial denial by the trial judge of counsel for a 

defendant during voir dire in a criminal trial can ever be “structural error” is 

a novel question of law which has not been, but should be, decided by the 

Court of Criminal Appeals. 

The 11th Court of Appeals found that the trial court erred when it 

refused to allow Appellant withdraw his waiver of counsel and allow 

appointed counsel to complete the defense portion of voir dire. RR Vol. 7, 
18

pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of 

Appeals April 9, 2015, p 7. 

The Court of Appeals then ruled:

“Because Appellant was not totally deprived of 

counsel during voir dire, we hold that the error was 

not a structural one but, rather, one subject to a 

harm analysis.” RR Vol. 7, pp. 8-16, 60. Calamaco 

v. State No. 11-13-00066-CR, 11th Court of Appeals April 

9, 2015, at page 7.

The Court of Appeals then went on to state: 

“We have not found a case in which a court specifically 

addresses whether the partial denial of counsel during 

voir dire is a structural error that is not subject to a harm 

analysis or is a constitutional error that is subject to a harm 

analysis.”

This is an issue for the Court of Criminal Appeals because the 

converse is also true: undersigned counsel has not found a case that says 

partial denial of counsel during voir dire is never a structural error; and in 

the case of Mr. Calamaco we contend that a thorough review would show 

that the denial was certainly structural error. There are cases werein partial 
19

denial of a constitutional right were found to be structural errors. Davis v. 

State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27, 

1974 Supreme Court of United States), (cross-examination limited by trial 

court) Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 

(1986) (unlawful exclusion of only certain grand jurors based on race). A 

more extensive briefing may reveal other cases.

The “erroneous denial of counsel bears directly on the framework 

within which the trial proceeds” United States v. Gonzales-Lopez; 548 U.S. 

140, 126 S. Ct. 2557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of 

United States), citing Fulminante.

In it’s analysis of whether or not the denial of Mr. Calamaco’s right to 

counsel was structural, the Court of Appeals also relied on the fact that the 

trial court had given Mr. Calamaco a “standby counsel” to support it’s 

ruling. This reasoning conflicts with earlier rulings that “standby counsel”

does not equate to counsel for his defense to which a defendant is entitled 

by the Sixth Amendment”, Medley v. The State of Texas; 47 S.W.3d 17 

(2000), Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54, 

79 L.Ed.2d 122 (1984). In it’s opinion in Cronic v. U.S., the U.S. Supreme 

Court stated that “although counsel is available to assist the accused” that 

there are occasions when a presumption of prejudice is appropriate without 
20

a harm analysis. Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80 

L.Ed.2d 657 (1984) Powell v. Alabama 287 U.S. 45, 53, S.Ct 55 77 L.Ed 

158 (1932). 

In it’s analysis of whether the error was structural error the Appellate 

Court “jumped the gun” and inquired into whether the Appellant was 

harmed by the error before fully examining the nature of the violation of the 

6th Amendment. The Court of Appeals did not fully analyze whether the 

error amounted to a structural defect affecting the framework in which trial 

proceeded, and cut short the examination of the error to which Appellant is 

entitled Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 

562 (1975) p. 310, citing Gorbert v. State, 717 S.W.2d 21, 24 (Tex. Crim. 

App. 1986). Instead of fully examining the nature and effect of the error, the 

Court of Appeals took a shortcut, citing Gorbert. In Gorbert it is not clear 

how long the defense attorney was not present during voir dire, but only 

that his absence was “partial”. It is clear, however, that the absence of 

defense counsel in Gorbert was only during part of the State’s examination

of the panel and not, as it was in Appellant’s trial, during the defense 

examination. Gorbert at p. 23. In Gorbert the Court of Criminal Appeals 

relied on Heredia which found no deprivation of right to counsel in a trial 

where defense counsel was absent for only “two or three minutes” of the 
21

State’s examination of a potential juror. Heredia v. State, 528 S.W.2d 847 

(Tex. Crim. App. 1975)

In both Gorbert and Heredia the Court of Criminal Appeals found 

there was no deprivation of the right to counsel. In Mr. Calamaco’s is 

distinguished because in this case we come to the Court of Criminal 

Appeals with a finding from the 11th Court of Appeals that the 42nd District 

Court committed error by depriving the Appellant of his Right to Counsel in 

violation of the Sixth Amendment to the United States Constitution.

Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 2015) p. 7

Calamaco is further distinguished from other partial absence of 

counsel cases in that Mr. Calamaco’s entire voir dire of the jury panel was 

very, very brief; it is so short that it consumes only about seven pages of 

the Court Reporter’s record. RR Vol. 7, pp. 54-61.

The Court of Appeals’ determination that the error was non-structural 

ignored a standard for distinguishing structural errors from non-structural 

errors. To apply a harm analysis to a structural error, the court’s have 

ruled, would be to speculate as to any harm done, and the courts must not 

engage in such speculation. In cases of non-structural error the effect of 

the error is quantifiable. The Court of Appeals overlooked that important 

distinction between structural and non-structural error.
22

The error found by the Court of Appeals of depriving Appellant of 

counsel affects the framework in which the trial proceeds and is not simply 

an error in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 111

S.Ct.1246, 113 L.Ed.2d 302. In United States v. Gonzales-Lopez the U.S. 

Supreme Court, ruling that a Sixth Amendment violation was not subjected 

to harmless error analysis, said “erroneous deprivation of the right to

counsel of choice with consequences that are necessarily unquantifiable 

and indeterminate unquestionably qualifies as “structural error” GonzalesLopez, citing Sullivan v. Louisiana, 508 U.S. 275, 282.

“It is impossible to know what different choices the 

rejected counsel would have made, and then to quantify the 

impact of those different choices on the outcome of the 

proceedings. ... Harmless-error analysis in such a context 

would be a speculative inquiry into what might have occurred in 

an alternate universe.” Gonzales-Lopez at 150, se also Davis v. 

State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007), Williams 

v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)

This ground should be more fully briefed so the Court of Appeals can 

make this decision important to the conduct of trials in the lower courts of 

Texas.
23

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully 

prays that this Court grant discretionary review and, after full briefing on the 

merits, issue an opinion reversing the Court of Appeals’ judgment and 

remanding the cause to the trial court for a new trial.

Appellant respectfully prays that this Court grant review and, after full 

briefing on the merits, issue an opinion resolving these important issues so 

that the bench and bar of this state will know how to address similar issues 

in the future. 

Appellant respectfully prays that this Court issue an opinion reversing 

the Court of Appeals’ judgment and remanding this cause to the Court of 

Appeals for full and complete consideration of the issue of whether the 

error of denial of counsel found by the Court of Appeals was a structural 

error.
24

 Respectfully submitted,

 

_______________________

Paul W. Hanneman

Attorney for Appellant

1305 Lamar Street

Sweetwater, Texas 79556

State bar No. 00895500

pwhlawoffice@gmail.com

(325) 235-4777

CERTIFICATE OF SERVICE

I hereby certify, by affixing my signature above, that a true and 

correct copy of the foregoing Petition for Discretionary Review, was mailed 

through the U.S. Postal Service to James Edison, Office of the Taylor 

County District Attorney, 300 Oak Street, Abilene, Texas 79602, and was 

mailed to Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, 

Austin, Texas 78711, by U.S. Postal Service.
25

 

Paul W. Hanneman

Attorney At Law

1305 Lamar Street Telephone: (325) 235-4777

Sweetwater, Texas 79556 Fax: (325) 235-4777

pwhlawoffice@gmail.com

Certificate of Compliance 

I certify that this Petition For Discretionary Review, a computer generated 

document, and according to the word count function, this document contains a total 

of 4,752 words, 3,726 words that are contained in the body of the document, 

(which does not include caption, identity of parties and counsel, statement 

regarding oral argument, table of contents, index of authorities, statement of the 

case, statement of issues presented, statement of jurisdiction, statement of 

procedural history, signature, proof of service, certification, certificate of 

compliance, and appendix) pursuant Tex.R.App.Pro. 9.4 (i)(1), 9.4 (i)(2)(D), this 

document is printed in a 14-point font.

Paul W. Hanneman
26

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