Constitutional and Statutory Bases

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused has the right to the assistance of counsel for his or her defense. Under the due process clause of the Fourteenth Amendment, this right has been extended to persons accused of crimes in state prosecutions.

These constitutional provisions have been interpreted as requiring the appointment of counsel for an accused who is indigent. This right applies to all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony. However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed. Thus, a defendant is not entitled to appointment of counsel in a misdemeanor prosecution when the state asserts that it will not seek a jail sentence and the court's punishment is by fine only. Similarly, an accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment. The punishment under such circumstances must be limited to a fine.

The constitutional right to counsel is complemented by statutory provisions acknowledging a defendant's right to counsel in any adversarial judicial proceeding. This right includes the right to consult in private with counsel sufficiently in advance of a proceeding to insure adequate preparation. An indigent defendant is entitled to the appointment of an attorney for any adversarial judicial proceeding that may result in punishment by confinement and in any other criminal proceeding when the court concludes that the interests of justice require representation. Thus, whenever a court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice otherwise require representation of an indigent defendant the court must appoint one or more attorneys to defend him or her as soon as possible. A defendant does not waive the right to counsel by simply failing to request appointed counsel An attorney so appointed must represent the defendant until the charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved by the court or replaced by other counsel.

Each county with at least four county courts and four district courts may appoint a public defender to represent indigents. Moreover, certain other counties and judicial districts are authorized to appoint a public defender for each court or for the county as a whole.

It is common practice in Texas for judges to appoint two attorneys, rather than one, to represent an indigent defendant charged with a capital crime or a major felony. If the trial court appoints a single attorney at the outset, a pretrial motion may be used to request additional counsel. The right to counsel, whether retained or appointed, applies to proceedings other than those simply related to a determination of guilt or innocence of a criminal offense. For example, the right extends to probation revocation proceeding and extradition proceedings. It also applies to appellate and post conviction habeas corpus matters.

Choice of Counsel

The right to counsel gives rise to a no indigent’s right to select counsel of his or her choice. Therefore, an accused must be afforded a fair opportunity to select and retain an attorney of his or her choosing. However, an accused's right to counsel of choice is not absolute, and it may not be manipulated to obstruct orderly procedure in the courts or interfere with the fair administration of justice.

Some of the factors that the appellate court will weigh in deciding if the defendant was denied the right to counsel of his or her choice when forced to trial with unacceptable counsel are as follows:

1. The length of the delay requested;

2. Whether other continuances were requested and the court's rulings on them;

3. The length of time that trial counsel had to prepare;

4. Whether another competent attorney was prepared to try the case;

5. The balance of convenience or inconvenience to the witnesses, opposing counsel, and trial court;

6. Whether the delay was for legitimate or contrived reasons;

7. Whether the case was complex or simple;

8. Whether the denial of the motion resulted in some identifiable harm to the defendant; and

9. The quality of the legal representation actually provided.

Under some circumstances, a defendant who has failed to secure counsel after being afforded a reasonable  opportunity to do so may be forced to proceed without representation. A court may proceed with a matter in the absence of counsel when a nonindigent defendant, or an indigent defendant who has refused appointed counsel in order to retain private counsel, appears at a proceeding without counsel after having been afforded the opportunity to arrange representation. A court may take this action without securing a written waiver of counsel or appointing counsel. However, the defendant must have been provided with 10 days' notice that a dispositive setting was to take place.

Retroactivity of Right

The right to counsel is given retroactive application. This right as it retroactively applies attaches to every stage of the prosecution where substantial rights of an accused may be affected, including the appeal. Therefore, an accused who is imprisoned may be entitled to postconviction relief, such as habeas corpus, if he or she was deprived of the assistance of counsel at a critical stage of a former prosecution even though the law regarding the right to counsel was complied with at the time of trial.

The retroactivity of the right to counsel may also be significant even if the accused is not presently in custody because a conviction obtained in a former criminal proceeding where there was a violation of the accused's right to counsel is not properly admissible in a subsequent criminal proceeding. For example, an accused may prevent the prosecution from introducing a prior conviction that could otherwise be used for impeachment. An accused may also prevent a prior conviction from being used to support guilt or to enhance the punishment for another offense.

However, in a subsequent criminal proceeding an accused will not be able to prevent the introduction of a prior conviction obtained without counsel unless he or she can prove indigency or the absence of a waiver of the right to counsel in the former proceeding . If a prior judgment of conviction recites that the defendant was represented by counsel, there is a presumption that the defendant was represented by counsel during the proceedings up to the conviction. In addition, there is a distinction between the later use of an uncounseled conviction and the use of an uncounseled sentence. For example, although the use of a conviction obtained while the accused was without counsel is unavailable for enhancement, the fact that there might have been no attorney present at the sentencing does not render the underlying counseled conviction invalid for enhancement purposes. This same rule applies to the use of a prior conviction for impeachment. The fact that the accused was without counsel when probation was revoked does not mean that the counseled conviction placing the accused on probation may not be used for impeachment.

Hybrid Representation

Article 1, Section 10 of the Texas Constitution states that an accused in a criminal proceeding has the right to be heard by himself or herself or counsel, or both. Although the language of this provision would appear to grant an accused the right to represent himself or herself along with counsel, it has been held that this provision of the constitution does not expand or alter the right to counsel or in any way give the accused a right to such hybrid representation. Rather, Article 1, Section 10 affords the accused the right to testify at his or her trial and to be represented by counsel. Thus, there is no constitutional right in Texas to representation partially pro se and partially by counsel As a result, the trial court is empowered to reject a request for hybrid representation. In this regard, it has been held that a request for self-representation that is not accompanied by a waiver of the right to counsel constitutes a request for hybrid representation.

If the trial court approves a request for hybrid representation, a defendant may act pro se as well as through retained or appointed counsel. A defendant who requests and accepts hybrid representation may not later assert any claim about waiver of counsel.

In the absence of approved hybrid representation, a defendant who is represented by counsel has no authority to make tactical decisions contrary to those of his or her attorney. For example, it is trial counsel's prerogative to decide which witnesses to call. Moreover, a defendant who is represented by counsel is not entitled to argue personally without taking the witness stand.

If an accused has waived the right to retained or appointed counsel, a trial court has the discretion to appoint counsel to act as amicus curiae to represent the court during the trial in an effort to make sure that all of the accused's rights are protected. Such counsel may be directed to remain with the accused throughout the trial in an advisory capacity. This does not infringe on the defendant's right of self-representation as long as the defendant maintains actual control of the litigation and the jury's perception that the defendant is representing himself or herself is not destroyed. In such cases, the attorney is referred to as ``standby counsel.'' The proper role of standby counsel is quite limited. The defendant retains actual control over the case presented to the jury. Standby counsel is not empowered to substantially interfere with any significant tactical decisions, control the questioning of a witness, or speak in place of the defendant on any matter of importance.  For example, standby counsel might explain basic rules of courtroom protocol or assist the defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task that the defendant has chosen to undertake. If, however, the defendant agrees to or permits any substantial participation in the trial by standby counsel, subsequent participation by counsel is presumed to be with the defendant's acquiescence unless the defendant unambiguously requests that counsel be silenced.

When a defendant requests self-representation, the trial court should clearly admonish the defendant that there is no automatic right to standby counsel. However, the court should also inform the defendant whether the court intends to allow standby counsel. In fact, the court has the authority to appoint standby counsel over the defendant's objection. The only issue that might arise from such an appointment is whether counsel then interfered with the defendant's right of self-representation. Acceptance of the court's offer of standby counsel does not mean the defendant has waived a prior asserted right of self-representation.

Waiver of Counsel

Once an accused asserts the right to self-representation, it is incumbent on the court to ascertain if  the defendant is making a voluntary, knowing, and intelligent relinquishment of the right to counsel. The court must advise the defendant about the dangers and disadvantages of self-representation. It has been suggested that the trial court should give the defendant a direct admonishment that he or she will be bound by the rules of evidence and procedure, and that no concessions will be made because of the defendant's lack of legal training. In addition, the court should specifically delineate some of the problems that the unschooled defendant may face by undertaking self-representation. These admonishments should include an advisement that there is no right to standby counsel.

The failure to make the defendant aware of the dangers of self-representation may invalidate a waiver of counsel. It is not sufficient to merely explain the trial procedures to the defendant and ask if he or she understands them.

After the trial court determines that a waiver of counsel is being voluntarily and intelligently made, the court ``shall provide the defendant with'' a written statement of waiver that the defendant may sign to waive the right to counsel. If the defendant signs the statement, it must be included in the record of the case. However, the Court of Criminal Appeals has held that a written waiver of the right to counsel is not required under the statute when the defendant affirmatively asserts the right to self-representation. The requirement of a written waiver of counsel in such cases would protect the right to counsel at the expense of the right to self-representation. Thus, the statute is directory rather than mandatory, so a court does not err in failing to secure a written waiver before permitting a defendant to proceed pro se.

The validity of any waiver of counsel is usually judged by determining if the record demonstrates that it was executed voluntarily, knowingly, and intelligently. This is most commonly done by analyzing the admonishments from the court and the defendant's responses to them. The overall record is considered in this regard; there is no specific type of information that is necessary to justify a court's finding of a waiver of counsel. Similarly, it is impermissible for the court to require a showing of any particular legal knowledge on the part of the defendant as a prerequisite for a knowing and intelligent waiver of counsel. The type of inquiry that must be made depends upon  whether the defendant is merely seeking to waive counsel or wishes to waive counsel and concomitantly exercise the right of self-representation.

A waiver of counsel is a voluntary relinquishment of the right to counsel. Therefore, it is not proper to force a defendant to proceed without counsel because of external circumstances. However, actions by a defendant that are deemed to be disruptive may be considered as the functional equivalent of a waiver of counsel.

Moreover, after a defendant asserts the right of self-representation, the court may compel a defendant to make a choice resulting in the waiver of counsel. For example, when the court offers to let appointed counsel remain as standby counsel, but the defendant seeks to have a different person appointed as standby counsel, the court may refuse a new appointment and leave the defendant with the choice of proceeding to trial with unwanted counsel or proceeding pro se.