On Appellant’s Petition for Discretionary Review From the Tenth Court of Appeals Hill County YEARY, J., filed a dissenting opinion. We granted discretionary review in this case to address essentially two questions: 1) whether the trial court should have admonished Appellant of the dangers and disadvantages of self-representation on the two occasions in which it accepted his waivers of the right to counsel, and 2) whether the trial court erred in rejecting his attempt to withdraw his waiver of counsel at the outset of his jury trial (which quickly turned into a guilty-plea hearing before the court). Appellant contends that he was authorized to withdraw his waiver of the right to counsel under Article 1.051(h) of the Texas Code of Criminal Procedure.[1] I agree with the Court’s disposition of the first issue, for different reasons than the Court gives. But I disagree with the Court’s disposition of the second issue, and I therefore respectfully dissent. I. THE RELEVANCE OF FARETTA ADMONISHMENTS On the appointed date of trial, with a jury venire waiting in the hallway, and without counsel, Appellant informed the trial court that he wished to change his plea to guilty. During pretrial proceedings, Appellant had already executed two written waivers of his right to counsel. I am inclined to agree with the Court that both waivers were voluntarily and knowingly rendered. But shortly before voir dire was to begin, Appellant informed the trial court that he wished to change his plea, and then he also informed the trial court that he wished to have the assistance of counsel after all. The trial court refused to allow him to withdraw his earlier waiver of counsel. I do not agree with the Court that it was unnecessary for the trial court to admonish Appellant of the dangers and disadvantages of self-representation before Appellant’s earlier waivers could be regarded as valid—at least not for the reason the Court articulates. The Court seems to say that admonishments were not necessary because Appellant was already aware of those dangers and disadvantages by the time of his guilty plea—regardless of whether the trial court had ever advised him of them. Majority Opinion at 18. Assuming that a self-representation admonishment would be required at all under these circumstances,[2] that requirement could not be satisfied by Appellant’s experience of earlier pretrial events.[3] To whatever extent the stage and attending circumstances of a given case suggest that an accused must be admonished of the dangers and disadvantages of self-representation, see Iowa v. Tovar, 541 U.S. 77, 92 (2004),[4] it is up to the trial court judge to sufficiently admonish the accused in order to assure that the record reflects that he makes his choice to represent himself “with eyes open.” Faretta v. California, 422 U.S. 806, 835 (1975); see Collier v. State, 959 S.W.2d 621, 626 n.8 (Tex. Crim. App. 1997) (“The record must reflect that the trial court thoroughly admonished the defendant.”). Nevertheless, I too ultimately reject Appellant’s premise that Faretta admonishments were required when the trial court ultimately compelled him to represent himself against his will—at the guilty plea proceeding and then the punishment hearing. By that time, Appellant was no longer insisting that he be allowed to represent himself. In fact, quite the opposite. He was trying to withdraw his earlier waiver of the right to counsel and obtain legal representation. The right to self-representation was no longer on the table; the trial court was requiring Appellant to represent himself. It was forcing Appellant to proceed in the absence of counsel, on the basis of his earlier waivers, notwithstanding Appellant’s change of heart. Faretta is therefore inapposite.[5] This case instead devolves into a question of Appellant’s right, if any, to revoke his previous waiver and reassert his right to counsel. In Texas, that question is controlled by Article 1.051(h). See Tovar, 541 U.S. at 94 (“We note, finally, that States are free to adopt, by statute, rule, or decision any guides to the acceptance of an uncounseled plea they deem useful.”).In my view, the Court’s opinion engraftsa limitation upon the scope of the statute that finds no basis in its text. II. PROPER CONSTRUCTION OF ARTICLE 1.051(h) Article 1.051(h) reads, in its entirety: (h) A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare. TEX. CODE CRIM. PROC. art. 1.051(h). “[A]t any time” would presumably include before voir dire, or even before the entry of a guilty plea in front of a trial judge while a jury venire is waiting in the hallway, as happened here. It is true that a defendant will not ordinarily be “entitled” to redo any part of the proceedings that have already occurred, or that he previously waived, while he was without counsel—the statutory withdrawal of his waiver of counsel operates, in other words, prospectively only. The defendant will therefore be stuck with the results of his prior decision to proceed without counsel, without recourse. But, by the literal terms of the statute, he “may” withdraw his waiver, and therefore must be allowed to proceed prospectively with the assistance counsel—from “any” point in “time” at which he chooses to revoke his earlier waiver. The face of the statute identifies no other condition or qualification, not even implicitly. Moreover, as even the State Prosecuting Attorney (SPA) recognizes in its brief to this Court, at least “[c]olloquially speaking, ‘at any time’ is fairly understood to imply something [that] can take place at one’s convenience, without limitation and regardless of the circumstances.” State’s Brief on the Merits at 27−28 (emphasis added). Without any other express language of limitation in the statute itself, I fail to see why this understanding, however “colloquial” it may be, would not carry the day: A defendant “may” withdraw his waiver of counsel “at any time,” and therefore obtain prospective assistance of counsel from that point on, without regard to the circumstances attending his withdrawal. As far as I am concerned, if the Legislature meant for the statute to operate otherwise, it could have said so expressly. The Court says the opposite: “If it had meant to allow a defendant to withdraw his waiver of counsel under any circumstances, the Legislature would have said so.” Majority Opinion at 20. I am not sure where this presumption comes from.[6] Perhaps the Court’s attempt to justify it may be found in its claim that the “plain language” of the statute “promotes the efficient administration of justice and prevents delay, but Appellant’s interpretation would sometimes sacrifice these goals for the sake of indulging a defendant’s vacillations.” Id. at 19. The only language from Article 1.051(h) that speaks to “the efficient administration of justice” or the prevention of “delay,” however, is the clause that bans retroactive operation of a withdrawal, preventing the repeat of earlier, uncounseled proceedings. Other than this, the statute does not speak to “the efficient administration of justice” or the prevention of “delay”—at all, much less plainly. The notion that an unfettered permission to withdraw a previous waiver of the right to counsel should be avoided because of the potential it may otherwise have to clog the gears of justice is just a judicial invention. It comes from court pronouncements about the acceptable tolerances of the constitutional right to counsel,[7] or from court construction of other statutes (not Article 1.051(h)) that contain language expressly imposing circumstantial restrictions.[8] Majority Opinion at 19−21. But, aside from Article 1.051(h)’s explicit ban on a retroactive withdrawal of the waiver of counsel, nothing in its language invites such judicial invention or intervention, either plainly or implicitly. Nor would it be inherently absurd for the Legislature to craft a statute that is so solicitous of a constitutional right, as Article 1.051(h) on its face seems to be. Beyond any delay or inefficiency that may be inherent in allowing a defendant to retroactively withdraw a waiver of counsel—which is expressly banned by Article 1.051(h)—the Legislature may well have been unconcerned with the potential for judicial inefficiency or delay. Indeed, for all we can tell from the language it chose, the Legislature prized the right to counsel over every other consideration. Our job as jurists is to implement the Legislature’s policy choice, regardless of whether we agree with it; not to tinker with it according to our own notions of courtroom efficiency. Because the Court does not, I respectfully dissent. FILED: September 6, 2023 PUBLISH
