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Cole v. State

Court of Appeals of Texas, Ninth District, Beaumont

November 13, 2019


          Submitted on January 29, 2019

          On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 17-26949, 17-26950

          Before McKeithen, C.J., Kreger and Horton, JJ.



         The Sixth Amendment allows a criminal defendant to represent himself at trial.[1] The right to choose (or to reject) counsel is a personal right. And the defendant's choice must be honored.[2]

         That said, an individual's right to elect to represent himself is not absolute. When appropriate, a trial court may refuse a defendant's election to represent himself.[3] But when the defendant elects to proceed without the benefit of counsel, the trial court may not require the defendant to be represented at trial by counsel merely because the court believes the defendant does not have the legal training needed to conduct his defense.[4]

         Here, the record shows the trial court did just that. As a result, we must reverse the defendant's convictions and award the defendant new trials in trial court cause numbers 17-26949 and 17-26950.


         Because we resolve the appeal on the self-representation issue, we limit the background to the facts relevant to that issue. In March 2017, a grand jury indicted Artavias Chovan Cole[5] for committing two aggravated robberies.[6] The cases were assigned cause numbers 17-26949 and 17-26950, and they were consolidated for trial. In the pretrial proceedings, the trial court appointed the first of what would later be three attorneys to represent Cole in the cases. At an April 2017 pretrial hearing, Cole told the trial court he did not want the first attorney to represent him in his case. The trial court agreed and replaced Cole's first attorney with someone else.

         In August 2017, the trial court conducted another pretrial hearing. In that hearing, Cole's second attorney told the court that Cole wanted to represent himself. According to the attorney, Cole could "do a better job himself on presenting his . . . rather novel defense." Then, the trial court determined Cole was not familiar with the Rules of Evidence, told Cole he needed a lawyer, and explained to Cole he was facing charges that, if they resulted in conviction, the convictions could lead to two life sentences. The court informed Cole that "only the foolish" represent themselves, and in the court's experience, they lose "every time."

         Then, Cole's second attorney summed up his views regarding why Cole desired to represent himself. He explained: "Mr. Cole's position is the only way that he can be assured that the proper defense is conveyed [] is that if he does it himself and that, really, there isn't any lawyer that would be able to competently represent him because he needs to make these arguments himself and he can do that with a standby counsel[.]"

         After that, the trial court explained why it felt it was not in Cole's interest to represent himself. The court said: "[I]f you want this thing heard in the appropriate fashion, you need a lawyer to guide you; and you can get your voice heard. But if you don't know how to do it, you can sit there and I'll say, [s]orry. You are not doing it in the correct way. You can't be heard."

         Cole persisted, however, and he told the court that his second attorney had "done nothing." At that point, the court asked Cole if he wanted another attorney. Cole responded: "Yeah. I would take another one." The trial court granted the request, appointing Cole's third attorney in his cases.

         On the morning of Cole's trial in March 2019, the trial court heard Cole's pretrial motions. In the hearing, Cole asked to speak to the court. But the court told Cole if he had something to say, he needed to "go through the attorney." At that point, Cole's third attorney explained he and Cole could not agree on some matters and that Cole wanted another lawyer. The trial court responded, stating that Cole's third attorney was competent. Then, the trial court and Cole engaged in the following discussion:

[COLE]: I don't want him as my lawyer.
THE COURT: We are going to be trying this case on Monday.
[COLE]: I don't want him as my lawyer.
THE COURT: I'm resetting until Monday, okay? Anything else.
[COLE]: So, you're going to make me have him as my lawyer if I'm saying I want to fire my lawyer? Then I want to fire my lawyer.
THE COURT: Then you can represent yourself.
. . .
THE COURT: Only one person can talk at one time for the court reporter who by law must take down everything in this courtroom. [The third attorney] is your attorney or you can represent yourself.
[COLE]: I guess I'm going to have to do that then.
THE COURT: Well, really? Well, you know what is said? Only a fool does that.
[COLE]: Well, I'm going to have to be that fool, sir.
THE COURT: In 40 years, everyone who has tried that, everyone in my 40 years of extensive trial work, has failed miserably.
[COLE]: Okay. Now, I understand that but at the same time --
THE COURT: [Cole] if you want to represent yourself, that's fine. [The third attorney] will be appointed though to sit next to you; and if you need to refer to anything, fine. You will follow the Code of Criminal Procedure. You will follow the Rules of Evidence. You will follow ...

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