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Dolph v. State

Court of Appeals of Texas, Sixth District, Texarkana

December 20, 2013

MARK DOLPH, Appellant
v.
THE STATE OF TEXAS, Appellee

Submitted December 4, 2013.

Page 899

[Copyrighted Material Omitted]

Page 900

PUBLISH

On Appeal from the 5th District Court, Bowie County, Texas. Trial Court No. 11F-0764-005.

Justin Smith, Norton & Wood, LLP, Texarkana, TX.

Lauren Sutton, Samantha J. Oglesby, Assistant District Attorney, Texarkana, TX.

Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Justice Carter.

OPINION

Page 901

Jack Carter, Justice.

Mark Dolph, who chose to represent himself for a portion of his trial during the guilt/innocence phase, was convicted by a jury for unlawful possession of a firearm by a felon, sentenced to fifty-eight years' imprisonment, and ordered to pay a $10,000.00 fine.[1] On appeal, Dolph argues that the trial court erred in finding his waiver of counsel and election to represent himself to be knowing, voluntary, and intelligent because the court " failed to admonish him regarding the nature of the charge, the statutory offense included within it, the range of allowable punishment, the possible defenses to the charges and any mitigating circumstances." After reviewing the trial, we find that Dolph was sufficiently admonished in accordance with Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We find that Dolph waived his right to counsel with full knowledge of the proceedings. Further, he was assisted by counsel during the proceedings at all times. We reform the judgment to delete the assessment of a fine. Otherwise, we affirm the trial court's judgment.

I. Dolph's Invocation of the Right of Self-Representation Was Made Competently, Knowingly and Intelligently, and Voluntarily

" The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any

Page 902

state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Id. at 807. " Those amendments also guarantee that any such defendant may dispense with counsel and make his own defense." Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997) (citing Faretta, 422 U.S. at 818-20); see Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (" [T]he Constitution does not force a lawyer upon a defendant." ).

" When an accused manages his own defense, he relinquishes . . . many of the traditional benefits associated with the right to counsel." Faretta, 422 U.S. at 835. These rights must be waived " (1) competently,[2] (2) knowingly and intelligently, and (3) voluntarily." Collier, 959 S.W.2d at 625 (citing Godinez v. Moran, 509 U.S. 389, 400-01, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 834-36). " Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835 (quoting Adams, 317 U.S. at 279); see Collier, 959 S.W.2d at 625. " The decision is made 'voluntarily' if it is uncoerced." [3] Collier, 959 S.W.2d at 625 (citing Godinez, 509 U.S. at 401).

A trial court need not follow a " formulaic questioning" or particular " script" to assure itself that an accused who has asserted his or her right to self-representation does so with " eyes open." Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App. 1991). Yet, from Faretta, we gather that if (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is " a mistake not to accept the assistance of counsel" and that the defendant will " be ...


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