James Conley v. State ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00263-CR

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JAMES CONLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 03-0069X

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          James Conley was charged by indictment with four counts of indecency with a child, two counts of aggravated sexual assault, and three counts of sexual assault. The jury found Conley guilty on all counts. The trial court assessed his punishment, in accordance with the jury's verdicts, at twenty years' imprisonment and a $4,000.00 fine on each of the indecency and sexual assault counts, and at thirty-five years' imprisonment and a $4,000.00 fine on the two aggravated sexual assault counts. Conley appeals, contending the trial court failed to adequately warn him about the dangers of self-representation in accordance with Faretta v. California, 422 U.S. 806 (1975). We overrule Conley's point of error and affirm the judgment.

          The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal trial the right to the assistance of legal counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. Although the right to counsel may not be forfeited, it may be waived as long as an affirmative waiver is made knowingly and intelligently. Faretta, 422 U.S. 806; Oliver v. State, 872 S.W.2d 713, 715 (Tex. Crim. App. 1994). For this decision to be made knowingly and intelligently, a defendant must be given a full understanding of the right to counsel, and such defendant must be admonished about the dangers and disadvantages of self-representation. Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. App. 1997) (citing Faretta, 422 U.S. at 834–36). The admonishments about the dangers of self-representation, commonly referred to as "Faretta warnings," must be made a part of the official record of the proceedings. Henderson v. State, 13 S.W.3d 107, 109 (Tex. App.—Texarkana 2000, no pet.).

          In the instant case, shortly after the State finished questioning its first witness (the victim), Conley informed the trial court that he wanted to fire his retained attorney and continue the trial by representing himself. The trial court made several attempts to dissuade Conley from self-representation, first stating, "I would advise you that you will be at a great disadvantage representing yourself. [Retained counsel] is a skilled and experienced criminal defense attorney and it would be foolish and unwise of you to discharge him." Later, the trial court repeated its warning: "You [Conley] simply do not have the training or the expertise to defend yourself in a criminal trial and I am advising you strongly that you not do that." Nonetheless, Conley persisted in exercising his right to self-representation, and the trial court acquiesced.

          However, before allowing Conley to proceed on his own, the trial court asked Conley about his education (high school graduate; no college), about any specialized training or military experience he had (none), and about his occupation (no legal training; worked in hydraulic service maintenance for thirty-seven years). While the trial court believed Conley to be both competent and intelligent, it warned him that he would "be subject to every rule and procedure, the same as if [he was] licensed to practice law." The court also told Conley that his questioning of witnesses would be limited to those matters that were only permissible under the law and the Texas Rules of Evidence. Conley was further warned he would be allowed no latitude even though he was not an attorney. And the court expressly forbade Conley from violating the State's motion in limine or from going into the victim's prior sexual conduct in violation of the Texas Rules of Evidence regarding the prior history of sexual assault victims. See Tex. R. Evid. 412 (evidence of previous sexual conduct in criminal cases).

          Despite these warnings, Conley made it clear he wished to represent himself, even going so far as asking the trial court to tell the jury he had fired his lawyer. The record of the discussion between the court and Conley, which covers approximately fourteen pages of the reporter's record, also shows Conley was aware of the gravity of the charges against him and had been previously directing much of his attorney's trial strategy. The trial court granted Conley's request, but appointed his retained attorney to continue as standby counsel for Conley, should such a need arise.

          Given the trial court's repeated warnings to Conley about the dangers of self-representation, the court's admonishments that Conley would be held to the same standards as a trained attorney (including adherence to the Texas Rules of Evidence regarding sexual assault victims), and the evidence in the record that Conley understood the gravity of the charges against him and had been directing at least part of the trial strategy, we must conclude Conley's decision to represent himself was the product of a knowing and intelligent decision made after being first warned of the inherent dangers of pursuing a path of self-representation. Accordingly, we overrule Conley's sole point of error and affirm the trial court's judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      September 30, 2004

Date Decided:         December 1, 2004

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