In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-25-00170-CR
DERRICK DEWAYNE HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court
Harrison County, Texas
Trial Court No. 25-0167X
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION1
Derrick Dewayne Harris was convicted by a jury of unauthorized use of a motor vehicle,
a state-jail felony. See TEX. PENAL CODE ANN. § 31.07. After a punishment hearing, the trial
court sentenced Harris to twenty-two months’ confinement in state jail. On appeal, Harris argues
that the trial court erred by allowing Harris to represent himself without admonishing him about
the dangers of self-representation.2 Because we agree, we reverse the trial court’s judgment and
remand the matter for a new trial.
I. A Defendant Must Be Warned About the Dangers of Self-Representation
“It is well established that every criminal defendant has a constitutional right to the
assistance of counsel and the constitutional right to self-representation.” Osorio-Lopez v. State,
663 S.W.3d 750, 756 (Tex. Crim. App. 2022) (citing U.S CONST. amend. VI; TEX. CONST. art. I,
§ 10; Faretta v. California, 422 U.S.806, 835 (1975)). “The right to self-representation and the
assistance of counsel are separate rights depicted on the opposite sides of the same Sixth
Amendment coin. To choose one obviously means to forego the other.” Id. (quoting United
States v. Purnett, 910 F.2d 51, 54 (2d Cir. 1990)).
“However, while the right to counsel is in effect until waived, the right to selfrepresentation does not attach until it has been clearly and unequivocally asserted.” Bluntson v.
State, 728 S.W.3d 87, 128 (Tex. Crim. App. 2025) (citing Osorio-Lopez, 663 S.W.3d at 756).
1
We withdraw our memorandum opinion and judgment issued on August 31, 2026, and issue the following substitute opinion.
2
Harris’s previous appellate counsel filed a brief stating that there were no arguable issues on appeal. See Anders v. California, 386 U.S. 738, 743–44 (1967). In our independent review, we found arguable issues and abated Harris’s appeal for appointment of new appellate counsel to pursue those issues.
2
“To proceed pro se, a defendant must ‘knowingly and intelligently’ waive his right to counsel.”
Id. (quoting Faretta, 422 U.S. at 818, 835).
“If a defendant properly asserts his right to self-representation, the trial court must inform
the defendant about ‘the dangers and disadvantages of self-representation,’ so that the record
establishes that he knowingly and intelligently waives his right to counsel.” Id. (quoting Faretta,
422 U.S. at 835; Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008)). “If the waiver
is not knowingly and intelligently made, it is invalid.” Id. at 130. This is because “[a]n invalid
waiver waives nothing.” Id. (quoting Osorio-Lopez, 663 S.W.3d at 756 (quoting Williams, 252
S.W.3d at 358)).
“‘[C]ourts indulge every reasonable presumption against waiver’ of fundamental
constitutional rights . . . .” Osorio-Lopez, 663 S.W.3d at 756 (alteration in original) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). For this reason, “[t]he record must reflect that the
trial court thoroughly admonished the defendant.” Id. at 757 (quoting Collier v. State, 959
S.W.2d 621, 626 n.8 (Tex. Crim. App. 1997) (citing Faretta, 422 U.S. at 834–36; Blankenship v.
State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984))). “For example, defendants must be aware
‘that there are technical rules of evidence and procedure, and he will not be granted any special
consideration solely because he asserted his pro se rights.’” Id. (quoting Johnson v. State, 760
S.W.2d 277, 279 (Tex. Crim. App. 1988)). Thus, while “[t]here is no formula or script that must
be read to a defendant who asserts his right to self-representation[,] . . . judges must take an
active role in assessing whether the defendant knowingly exercises that right.” Huggins v. State,
674 S.W.3d 538, 541 (Tex. Crim. App. 2023) (citations omitted). “The trial judge should ensure
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that a defendant’s choice to represent himself at trial is an informed one made with eyes open.”
Id. (citing Faretta, 422 U.S. at 835).
II. Factual and Procedural Background
Harris’s trial counsel filed a motion to withdraw from Harris’s representation because
Harris “insinuated that [c]ounsel ha[d] broken the law by filing a waiver of arraignment.” Trial
counsel said that Harris had “accused [c]ounsel of tampering with a government document” and
had filed a grievance against him. Trial counsel stated that he could not “adequately represent
someone who [wa]s accusing their own attorney of committing a crime.”
At the hearing on trial counsel’s motion to withdraw, after hearing trial counsel’s
argument, the trial court asked Harris, “So you -- you indicated you were going to represent
yourself; is that correct?” When Harris answered in the affirmative, the trial court clarified that
trial counsel was “not going to handle anything. [He is] not going to pick a jury. [He is] not
going to be questioning witnesses.” The reporter’s record shows that Harris was not given the
benefit of admonishments about self-representation. The trial court found good cause for
Harris’s trial counsel’s motion to withdraw and granted the motion. Its order specified that
Harris “shall serve as his own attorney in the above[-]entitled cause number,” but that
withdrawn-trial counsel would be “backup counsel.”
On the day of trial, Harris told the trial court that he had not “been able to examine
anything” and had not “seen any evidence.” The trial court said, “after jury selection, [Harris]
need[ed] access to the file” and proceeded with jury selection. After the State’s voir dire, the
trial court asked Harris if he was ready to proceed, but Harris answered, “Yes. I mean, I [do not]
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really understand.” Harris did not ask questions of the venire, choosing instead to “pass on that
part.”
III. Harris Did Not Receive Proper Admonishments About Self-Representation
In his sole point of error, Harris argues that his “decision to waive counsel and represent
himself at trial was not made knowingly, intelligently, and voluntarily because the trial court
failed to adequately admonish Harris regarding the dangers and disadvantages of selfrepresentation, as required by Faretta v. California, 422 U.S. 806, 819 (1975).” When reviewing
this assertion, “the focus is not solely on whether the right to counsel was waived but also on
whether the defendant was aware of the dangers and disadvantages of self-representation.”
Huggins, 674 S.W.3d at 541 (citing Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App.
1992)).
In response to Harris’s arguments, the State argues that Faretta admonishments were not
required because there was hybrid representation in this case. In support, the State cites to Dolph
v. State, 440 S.W.3d 898, 907 (Tex. App.—Texarkana 2013, pet. ref’d). There, we discussed the
term “standby counsel,” which “usually describes situations when, in response to a defendant’s
request for self-representation, the trial court instead allows the defendant’s attorney to remain as
counsel and be available to advise the defendant and participate in the case, or not, as requested
by the defendant.” Id. (quoting Walker v. State, 962 S.W.2d 124, 126 (Tex. App.—Houston
[1st Dist.] 1997, pet. ref’d) (citing Faretta, 422 U.S. at 834)). Yet, we also stated that the trial
court had already warned Dolph about the dangers and disadvantages of self-representation and
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that Dolph had invoked his right of self-representation with full knowledge of the proceedings.
Id. at 901–02.
Here, the trial court allowed Harris’s trial counsel to withdraw from representing Harris,
found that Harris would “serve as his own attorney,” and appointed the same trial counsel who
had already withdrawn as “backup counsel.” The reporter’s record shows that Harris was not
warned of the dangers and disadvantages of self-representation, made aware that there were
technical rules of evidence and procedure, or advised that he would not be granted any special
consideration solely because he asserted his pro se rights. Simply put, Harris was not offered
any Faretta-type admonishments, and nothing ensured that Harris made his decision to waive
counsel and proceed pro se knowingly or intelligently. See Grant v. State, 255 S.W.3d 642, 647
(Tex. App.—Beaumont 2007, no pet.) (finding that “Faretta admonishments should be given
regardless of the appointment of standby counsel”). Moreover, the record before us shows that
Harris did not consult “backup counsel” during voir dire examination of the jury panel, which
was “a critical stage of [the] criminal prosecution at which the right to counsel attaches.” Eason
v. State, 563 S.W.2d 945, 947 (Tex. Crim. App. [Panel Op.] 1978). As a result, we find that
Harris’s decision to represent himself was not “an informed one made with eyes open.”
Huggins, 674 S.W.3d at 541 (citing Faretta, 422 U.S. at 835).
The Texas Supreme Court has stated that “[a]n invalid waiver waives nothing.” OsorioLopez, 663 S.W.3d at 756 (quoting Williams, 252 S.W.3d at 358). “In such case, the right to
counsel remains in effect, and a defendant is entitled to counsel.” Id. (citing Williams, 252
S.W.3d at 358 (“allowing a defendant to represent himself ‘without a valid waiver of the right to
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counsel’” denies that defendant of the right to counsel)). Because Harris’s invocation of the right
of self-representation was not knowing and intelligent, his right to counsel remained intact.
Where, as here, “the record does not affirmatively show that the defendant was sufficiently
admonished as required by Faretta, it is reversible error, not subject to a harm analysis.”
Williams, 252 S.W.3d at 357. This is because “prejudice is presumed.” Id. at 359. Accordingly,
we sustain Harris’s sole point of error.
IV. Conclusion
We reverse the trial court’s judgment and remand the matter for a new trial.
Scott E. Stevens
Chief Justice
Date Submitted: August 21, 2026
Date Decided: September 4, 2026
Do Not Publish
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