Faretta hearing in Texas

2025In September 2020, following a Faretta hearing at which the district court found that Lively was knowingly and intelligently waiving his right to counsel, see Faretta v. California, 422 U.S. 806 (1975), the district court allowed Lively to represent himself. 2 Lively’s wife filed for divorce in 2017, and the trial court granted the divorce decree in 2021.

2025In September 2020, following a Faretta hearing at which the district court found that Lively was knowingly and intelligently waiving his right to counsel, see Faretta v. California, 422 U.S. 806 (1975), the district court allowed Lively to represent himself. 2 Lively’s wife filed for divorce in 2017, and the trial court granted the divorce decree in 2021.

2015The judge confirmed that he had “conducted a Faretta inquiry regarding the dangers and disadvantages of self-representation,” but no record was made of that exchange between the trial 1 Walker v. State, 962 S.W.2d 124 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). 2 judge and Myles.

2015The judge confirmed that he had “conducted a Faretta inquiry regarding the dangers and disadvantages of self-representation,” but no record was made of that exchange between the trial 1 Walker v. State, 962 S.W.2d 124 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). 2 judge and Myles.

2023There are notations on a scheduling order in the Clerk’s Record that reflect a Faretta hearing needed to be scheduled. “[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently 52 elects to do so.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (quoting Faretta v. California, 422 U.S. 806, 807 (1975) (emphasis original)). “[T]he right of self- representation does not attach until asserted.” Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (citations omitted).

2023There are notations on a scheduling order in the Clerk’s Record that reflect a Faretta hearing needed to be scheduled. “[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently 52 elects to do so.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (quoting Faretta v. California, 422 U.S. 806, 807 (1975) (emphasis original)). “[T]he right of self- representation does not attach until asserted.” Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (citations omitted).

2015Walker, 962 S.W.2d at 126–27 (trial court indicated on record that 5 Faretta warnings were given but there was no record of the hearing; standby counsel was appointed); Robertson, 934 S.W.2d at 865–66 (no indication of Faretta warnings; standby counsel was appointed).

2003See Robertson v. State , 934 S.W.2d 861, 864-65 (Tex. App.–Houston [14 th Dist.] 1996, no pet.) (stating Faretta admonishments not required where standby counsel appointed); see also Walker v. State , 962 S.W.2d 124, 125-26 (Tex. App.–Houston [1 st Dist.] 1997, pet. ref’d) (stating Faretta admonishments not required because defendant had access to appointed standby counsel) .

2023There are notations on a scheduling order in the Clerk’s Record that reflect a Faretta hearing needed to be scheduled. “[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently 52 elects to do so.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (quoting Faretta v. California, 422 U.S. 806, 807 (1975) (emphasis original)). “[T]he right of self- representation does not attach until asserted.” Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (citations omitted).

2023There are notations on a scheduling order in the Clerk’s Record that reflect a Faretta hearing needed to be scheduled. “[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently 52 elects to do so.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (quoting Faretta v. California, 422 U.S. 806, 807 (1975) (emphasis original)). “[T]he right of self- representation does not attach until asserted.” Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (citations omitted).

2014Compare Moore, 999 S.W.2d at 396 (giving of Faretta warnings, appointment of standby counsel, and relinquishment of self- representation right to standby counsel after one day was constitutionally sufficient without inquiry into competence where appellant’s only claim of incompetence was a prior history of depression and several outbursts during trial).

2004Faretta v. California , 422 U.S. 806, 818-20 , 95 S. Ct. 2525, 2532-33 (1975); Moore v. State , 999 S.W.2d 385, 396 (Tex. Crim.

2013The issue in Johnson is well-settled because “although an exercise of the right of self-representation may cause some inconvenience or even 5 disruption in the trial proceedings, so long as it is not a calculated obstruction, this delay cannot deprive the accused of the right once properly asserted.” Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

2013The issue in Johnson is well-settled because “although an exercise of the right of self-representation may cause some inconvenience or even 5 disruption in the trial proceedings, so long as it is not a calculated obstruction, this delay cannot deprive the accused of the right once properly asserted.” Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

2012See, e.g., In re A.G., 225 P.3d 816, 819 (Okla.Civ.App.2009) (holding in parental termination cases that “when the record establishes a defendant was made aware of the dangers and disadvantages of self-representation ... yet makes the choice to proceed pro se, the defendant cannot thereafter complain that the trial court committed error by permitting him to exercise the right of self-representation”); In re J.D.F., 761 N.W.2d 582, 587-88 (N.D.2009) (holding that record in parental termination case must show that parent “voluntarily, knowingly, and intelligently relinquished the right to counse

2012See In re J.D.F., 761 N.W.2d 582, 587 (N.D.2009) (relying on state constitution to recognize right to counsel and extending that right to require voluntary and knowing waiver of right); but see In re PDR, 713 S.E.2d 60, 61-62 (N.C.Ct.App.2011), rev’d, 723 S.E.2d 335 (N.C.2012) (termination proceeding initiated by government); In re A.G., 225 P.3d 816 , 818 (Okla.Civ.App.2009) (same); In re Amber P., 877 A.2d 608, 613 (R.I.2005) (same); In re Welfare of G.E., 116 Wash.App. 326 , 65 P.3d 1219, 1222 (2003) (same).

2010See, e.g., Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim.

2010See, e.g., Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim.

2009See United States v. Treff, 924 F.2d 975 , 979 n. 6 (10th Cir.1991); Cross v. United States, 893 F.2d 1287, 1291-92 (11th Cir.1990); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C.Cir.1988). [5] Saldaña never indicated he wanted to represent himself by himself.

2009See United States v. Treff, 924 F.2d 975 , 979 n. 6 (10th Cir.1991); Cross v. United States, 893 F.2d 1287, 1291-92 (11th Cir.1990); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C.Cir.1988). [5] Saldaña never indicated he wanted to represent himself by himself.

2009See United States v. Treff, 924 F.2d 975 , 979 n. 6 (10th Cir.1991); Cross v. United States, 893 F.2d 1287, 1291-92 (11th Cir.1990); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C.Cir.1988). [5] Saldaña never indicated he wanted to represent himself by himself.

2009See United States v. Treff, 924 F.2d 975 , 979 n. 6 (10th Cir.1991); Cross v. United States, 893 F.2d 1287, 1291-92 (11th Cir.1990); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C.Cir.1988). [5] Saldaña never indicated he wanted to represent himself by himself.

2009See United States v. Treff, 924 F.2d 975 , 979 n. 6 (10th Cir.1991); Cross v. United States, 893 F.2d 1287, 1291-92 (11th Cir.1990); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C.Cir.1988). [5] Saldaña never indicated he wanted to represent himself by himself.

2009See United States v. Treff, 924 F.2d 975 , 979 n. 6 (10th Cir.1991); Cross v. United States, 893 F.2d 1287, 1291-92 (11th Cir.1990); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C.Cir.1988). [5] Saldaña never indicated he wanted to represent himself by himself.

2005See Funderburg 717 S.W.2d at 642.

2004See Funderberg 717 S.W.2d at 642 .

2010Accordingly, the trial court erred by failing to conduct a Faretta hearing to determine whether Hernandez made the decision to represent himself intelligently, knowingly, and voluntarily.3 See Williams, 252 S.W.3d at 358 ; Saldana, 287 S.W.3d at 53 ; DeGroot, 24 S.W.3d at 457 .

2010Accordingly, the trial court erred by failing to conduct a Faretta hearing to determine whether Hernandez made the decision to represent himself intelligently, knowingly, and voluntarily.3 See Williams, 252 S.W.3d at 358 ; Saldana, 287 S.W.3d at 53 ; DeGroot, 24 S.W.3d at 457 .

2013This is a different inquiry than that undertaken in a Faretta hearing in which the trial court must admonish the defendant about the dangers and disadvantages of self-representation and make an assessment of the defendant’s “knowing exercise of the right to defend himself.” Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim.

2013This is a different inquiry than that undertaken in a Faretta hearing in which the trial court must admonish the defendant about the dangers and disadvantages of self-representation and make an assessment of the defendant’s “knowing exercise of the right to defend himself.” Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim.

2025See Chadwick, 309 S.W.3d at 561 .

2025See Chadwick, 309 S.W.3d at 561 .

2025See In re L.J., No. 09-19-00457-CV, 2020 WL 3057296 , at *7 (Tex. App.—Beaumont June 9, 2020, no pet.) (mem. op.) (“If a trial court elects to allow a parent to proceed pro se, the trial court must inform the parent of the dangers of self- representation before permitting the parent to proceed pro se, and a parent’s waiver of the right to counsel must, at the very least, be knowing and intelligent.”); In re K.E.R., No. 04-19-00808-CV, 2020 WL 1866468 , at *4 (Tex. App.—San Antonio Apr. 15, 2020, pet. denied) (mem. op.) (“[A]n indigent parent may waive the right to counsel in a termination proc

2014See In re C.L.S., 403 S.W.3d 15, 21 (Tex.App.-Houston [1st Dist.] 2012, pet. filed).

2022During the Faretta hearing, the trial court recommended against Collins’s self- representation “because [he was] not trained as a lawyer to know the Rules of Evidence and the Rules of Procedure.” See Johnson, 760 S.W.2d at 279 (requiring that defendant be made aware “that there are technical rules of evidence and procedure”).

2022During the Faretta hearing, the trial court recommended against Collins’s self- representation “because [he was] not trained as a lawyer to know the Rules of Evidence and the Rules of Procedure.” See Johnson, 760 S.W.2d at 279 (requiring that defendant be made aware “that there are technical rules of evidence and procedure”).

2021Hatten, 71 S.W.3d at 334 .

2020See Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim.

2017Id.) Winton, 837 S.W.2d at 135 ; Robinson v. State, 387 S.W.3d 815, 820-21 (Tex. App-Eastland 2012, no pet.); see also Faretta, 422 U.S. at 835-36 , 95 S.Ct, at 2541 ; Wilson v. Walker, 204 F.3d 33, 38 (2d Cir.) (holding that petitioner abandoned initial request when he subsequently had two different lawyers appointed and did not assert right again after question of self-representation had been left open for further discussion), cert. denied, 531 U.S. 892 , 121 S.Ct. 218 , 148 L.Ed.2d 155 (2000); Raulerson v. Wainwright, 732 F.2d 803, 809 (11th Cir.) (holding defendant waived self-representati

2013We agree with the State. 3 Even when a defendant has properly asserted his right to self-representation, the trial court has discretion to deny the request if it is made “to disrupt or delay the proceedings.” Ex parte Winton, 837 S.W.2d 134, 136 (Tex. Crim.

2015Once asserted, the trial court must conduct a Faretta hearing and admonish the defendant to “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 at 835 [quoting Adams v. United States, 317 U.S. 269, 279 (1942)].

2015Once asserted, the trial court must conduct a Faretta hearing and admonish the defendant to “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 at 835 [quoting Adams v. United States, 317 U.S. 269, 279 (1942)].

2015And, since no Faretta warning hearing was held before he executed his waiver, likewise there is no showing in the record that Appellant understood the consequences of his waiver as 10 Id at 173-74 (emphasis added) citing: George, 9 S.W.3d at 237 (citing Archie v. State, 799 S.W.2d 340, 344 (Tex. App.--Houston [14th Dist.] 1990), aff'd, 816 S.W.2d 424 (Tex.Crim.App.1991)). 11 Id. at 174 12 Id. at 174 citing: Goffney v. State, 812 S.W.2d 351, 352 (Tex. App.--Waco 1991), aff'd, 843 S.W.2d 583 (Tex.Crim.App.1992). 13 Faretta v. California, ( 422 U.S. at 835 , 95 S. Ct. 2525 ) quoting Adams v. Unit

2013See Gaffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992).

2012The United States Supreme Court has held that “the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” M.L.B. v. S.L.J., 519 U.S. 102, 103 , 117 S.Ct. 555, 557 , 136 L.Ed.2d 473 (1996).

2012The United States Supreme Court has held that “the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” M.L.B. v. S.L.J., 519 U.S. 102, 103 , 117 S.Ct. 555, 557 , 136 L.Ed.2d 473 (1996).

2026See Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (the trial court’s failure to hold a Faretta hearing is not error if the court determines defendant abandoned the request to proceed pro se).

2026See Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (the trial court’s failure to hold a Faretta hearing is not error if the court determines defendant abandoned the request to proceed pro se).

2025See A.G. v. Tex. Dep’t of Fam. and Protective Servs., No. 03-22-00502- CV, 2022 WL 17982121 , at *5 (Tex. App.—Austin Dec. 29, 2022, no pet.) (mem. op.) (stating that while the “better practice” is for a trial court to give Faretta-like warnings to parents wishing to proceed pro se in termination cases, “that is not what the Texas Family Code currently requires,” and concluding that the trial court had complied with all statutory requirements under the Family Code); In re E.A.F., 424 S.W.3d 742 , 746–49 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (declining invitation to apply Faretta t

2025See Faretta v. California, 422 U.S. 806, 835 , 95 S. Ct. 2525, 2541 (1975); Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim.