OPINION Appellant, James Riley Shook, was found guilty by a jury of assault causing bodily injury. See TEX. PENAL CODE ANN. § 22.01. In his sole issue on appeal, Shook contends that he did not knowingly and voluntarily waive his right to counsel. We affirm. Background On September 21, 2020, Shook was indicted for the offense of aggravated assault with a deadly weapon. See id. § 22.02. At his arraignment hearing on September 24, 2020, Shook complained about his court-appointed attorney, who then moved to withdraw. The trial court granted appointed counsel’s motion to withdraw, and Shook requested time to retain new counsel, which the trial court granted. On October 15, 2020, the trial court conducted a “Status of Attorney Hearing,” where Shook announced that he had not yet retained an attorney and the trial court offered to again appoint counsel. Shook refused the trial court’s offer of a court- appointed attorney, and the trial court reset the case for two weeks. But before concluding the hearing, Shook asked if he could represent himself. The trial court discussed the matter with Shook and then appointed standby counsel. In his sole issue on appeal, Shook contends that he did not knowingly and voluntarily waive his right to counsel. Specifically, Shook claims that the trial court failed to admonish him fully on a knowing and voluntary waiver of counsel. Authority The Sixth Amendment to the Constitution of the United States guarantees that “[in] all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. CONST. amend. VI; Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App. 2008). When a defendant asserts the right to self-representation, the trial judge must inform the defendant 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 v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 562 (1975) (quoting Adams v. United States, 317 U.S. 269, 279, 63 S. Ct. 236, 241-42, 87 L. Ed. 268 (1942)). However, several courts have held that Faretta admonitions are not required when a defendant has access to standby counsel appointed by the trial court. See Walker v. State, 962 S.W.2d 124, 126-27 (Tex. App.–Houston [1st Dist.] 1997, pet. ref’d); Robertson v. State, 934 S.W.2d 861, 864 (Tex. App.–Houston [14th Dist.] 1996, no pet.); see also Bradford v. State, No. 05-14-01610-CR, 2016 Tex. App. LEXIS 817, at *3 (Tex. App.—Dallas 2016, pet. ref’d) (mem. op., not designated for publication); Anderson v. State, No. 2-02-060-CR, 2003 Tex. App. LEXIS 4169, at **4-5 (Tex. App.—Fort Worth 2003, pet. ref’d) (mem. op., not designated for publication). A trial court can appoint standby counsel to assist a criminal defendant who represents himself at trial, even over the defendant’s objection. McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S. Ct. 944, 954, 79 L. Ed. 2d (1984); Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46; Scarbrough v. State, 777 S.W.2d 83,92 (Tex. Crim. App. 1989. Discussion Here, the trial court appointed standby counsel for Shook. Because Shook had and utilized standby counsel, we conclude that the trial court was not required to provide Shook with Faretta admonitions.[1] See Walker, 962 S.W.2d at 126-27; Robertson, 934 S.W.2d at 864; see also Bradford, 2016 Tex. App. LEXIS 817, at *3; Anderson, 2003 Tex. App. LEXIS 4169, at **4-5. The record shows that a hearing was held on the day before trial and that standby counsel was not present. At this hearing, the trial court inquired about a letter the trial court received from Shook earlier that day because the trial court was concerned about Shook’s competency to stand trial. When asked about the letter, Shook explained to the trial court that he did not intend for the letter to infer that he was incompetent; instead, he noted that he was not taking his medication because he did not think it was right. The trial court assured Shook that the Sheriff, who was present in the courtroom, would make sure Shook was given his medication as prescribed. In addition, the trial court informed Shook that he would need to make an election as to whether the court or the jury would assess punishment, if he were found guilty. The trial court also informed Shook that his election had to be made no later than the morning of trial. At the hearing and upon the request of the trial court, Shook made his election and elected to have a jury assess his punishment. Before voir dire the next day, Shook decided to have standby counsel represent him, and counsel proceeded to trial without changing Shook’s election. After the jury found Shook guilty of the lesser-included offense of assault causing bodily injury, Shook waived his election for the jury to assess punishment and agreed to have the trial court assess his punishment at time served, based on an agreement he made with the State. In accordance with the agreement between Shook and the State, the trial court assessed Shook’s punishment at 365 days in the county jail. To the extent that Shook may have been “deprived” of the assistance of counsel at this hearing, we note that Shook, while represented by counsel, did not change his punishment election on the day of trial. Furthermore, while represented by counsel and after the guilt-innocence phase of trial, Shook waived his jury election for punishment, in accordance with his agreement with the State. As a result of the agreement with the State, Shook received a favorable sentence that resulted in his release from incarceration. Therefore, we conclude beyond a reasonable doubt that Shook was not harmed in any way by the absence of standby counsel at the hearing conducted the day before trial. See TEX. R. APP. P. 44.2(a) (“If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”); Satterwhite v. Texas, 486 U.S. 249, 254, 108 S. Ct. 1792, 1796, 100 L. Ed. 2d 284 (1988) (holding that when the absence of counsel does not pervade the entire proceeding, Sixth Amendment violations are subject to a harmless-error analysis); see also Hanson v. State, 11 S.W.3d 285, 289 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Moreover, based on the totality of the circumstances, we reject Shook’s structural-error contention based on the total deprivation of the right to counsel. See Bell v. Cone, 535 U.S. 685, 695-96, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914 (2002); Lake v. State, 532 S.W.3d 408, 414 (Tex. Crim. App. 2017) (noting that to be immune from a harm analysis, the violation of the right to counsel must “pervade the entire proceeding” (quoting Satterwhite, 486 U.S. at 257, 108 S. Ct. at 1797)); Williams v. State, 252 S.W.3d 353, 357 (Tex. Crim. App. 2008) (“When the right to trial counsel has been violated, prejudice is presumed because the trial has been rendered inherently unfair and unreliable.”). We overrule Shook’s sole issue on appeal. Conclusion We affirm the judgment of the trial court. MATT JOHNSON Justice Before Chief Justice Gray, Justice Johnson, and Justice Smith (Chief Justice Gray dissenting) Affirmed Opinion delivered and filed June 29, 2022 Publish [CR25]
