IN THE

TENTH COURT OF APPEALS

No. 10-07-00230-CR

WILLIAM RESTO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. F39156

MEMORANDUM OPINION

Resto appeals his convictions for two counts of sexual assault of a child and two 

counts of indecency with a child by sexual contact, the punishment being enhanced to 

that for a first-degree felony by Resto’s prior felony adjudication. See TEX. PENAL CODE 

ANN. § 12.42(b), (f) (Vernon Supp. 2007), § 21.11(a)(1), (c) (Vernon 2003), § 22.011(a)(2) 

(Vernon Supp. 2007). We affirm.

In one issue, Resto contends that the trial court erred in allowing Resto to represent 

himself at trial. Resto moved the trial court to allow Resto to “[r]epresent [him]self with 

legal counsel,” that is, appointed standby counsel. (21 R.R. at 4.) The trial court granted 
Resto v. State Page 2

Resto’s motion.1 Resto is represented by appointed counsel on appeal. We understand 

that Resto complains that the trial court did not, sua sponte, make “further inquiry” into 

Resto’s competence to represent himself at trial. (See Br. at 11.)

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall 

enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST.

amend. VI. But “the Sixth and Fourteenth Amendments” also “include a ‘constitutional 

right to proceed without counsel when’ a criminal defendant ‘voluntarily and 

intelligently elects to do so.’” Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008) (quoting 

Faretta v. California, 422 U.S. 806, 807 (1975) (emphasis in Faretta)); see U.S. CONST.

amend. XIV, § 1.

The United States Supreme Court held in Faretta v. California, “When an accused 

manages his own defense, he relinquishes, as a purely factual matter, many of the 

traditional benefits associated with the right to counsel. For this reason, in order to 

represent himself, the accused must ‘knowingly and intelligently’ forego those 

relinquished benefits.” Faretta, 422 U.S. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 

464-65 (1938)); see Edwards, 128 S. Ct. at 2383. The Texas Court of Criminal Appeals has 

held in Martin v. Texas, “Faretta does not mandate . . . an inquiry concerning [the] 

appellant’s age, education, background, or previous mental health history in every 

 

1 We assume without deciding that Resto preserved his complaint for appellate review. See TEX.

R. APP. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Cameron v. State, 241 S.W.3d 

15, 22 (Tex. Crim. App. 2007); Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Buchanan v. State, 

207 S.W.3d 772, 775 (Tex. Crim. App. 2006); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005); 

Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004); Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. 

App. 1997).
Resto v. State Page 3

instance where an accused expresses a desire to represent himself, for the record may 

otherwise be sufficient to make ‘an assessment of his knowing exercise of the right to 

defend himself.’” Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982) (quoting 

Faretta at 836) (emphasis omitted) (some internal quotation marks omitted).

Resto relies primarily upon the United States Supreme Court’s opinion in Indiana v. 

Edwards. See Edwards, 128 S. Ct. 2379. In Edwards, the Supreme Court holds that “the 

Constitution does not forbid a State . . . to insist” that a “defendant proceed to trial with 

counsel, the State thereby denying the defendant the right to represent himself.” Id. at 

2381. Resto concedes “that the Edwards case does not explicitly provide for a new legal 

standard for pro se criminal defendants.” (Br. at 11.) Resto nonetheless argues, 

“arguing in the obverse, Edwards would seem to indicate that further inquiry, of the 

very sort the Court Criminal Appeals found unnecessary in Martin, should be 

undertaken by trial judges in instances where criminal defendants whose competence is 

in doubt . . . seek to represent themselves.” (Id.); see Martin, 630 S.W.2d 952. 

Under the United States Constitution, “a State may . . . permit a gray-area 

defendant,” that is, a defendant who satisfies Dusky v. United States’s standard for 

mental competence but might not satisfy some higher standard, “to represent himself.” 

Edwards, 128 S. Ct. at 2385 (citing Godinez v. Moran, 509 U.S. 389 (1993)) (emphasis 

omitted); see Dusky v. United States, 362 U.S. 402 (1960). Edwards does not overrule or 

even challenge that prior law. See Edwards at 2388. Edwards does, however, expressly 

decline to adopt a different standard. Id.
Resto v. State Page 4

Resto does not suggest how the trial record is not sufficient for the trial court to 

make an assessment of Resto’s knowing exercise of the right to defend himself.2 Most of 

what Resto points to as reasons Resto was not mentally competent to represent himself, 

for example, his reference to his prior adjudication during his examination of the venire 

panel, concerns instead Resto’s “technical legal knowledge,” which Edwards expressly 

holds “not relevant” to the mental-competence evaluation. See Edwards, 128 S. Ct. at 

2385 (quoting Moran, 509 U.S. at 400; Faretta, 422 U.S. at 836); see Edwards at 2386-87. 

The trial court had before it the reports of psychological examinations of Resto’s sanity 

and his mental competence for trial. Those reports consider most of the Martin factors 

that Resto urges us to require the trial court to inquire into. See Martin, 630 S.W.2d at 

954.

Resto does not show that the trial court erred in granting Resto’s motion to 

represent himself. We overrule Resto’s issue.

Having overruled Resto’s sole issue, we affirm.

TOM GRAY

Chief Justice

 

2 The trial court found:

Defendant clearly and unequivocally declared that he wanted to represent himself.

Defendant wished to waive his right to counsel.

Defendant’s waiver is voluntarily and intelligently made.

The Court advised Defendant of the dangers and disadvantages of self-representation.

The Court advised Defendant that he would be required to follow trial procedure.

(1 C.R. at 201.)
Resto v. State Page 5

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 17, 2008

Do not publish

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