LAWSON v. STATE

ONION, Presiding Judge.

This appeal is taken from a conviction for theft by check over twenty dollars ($20.00). The punishment, assessed by the court, was thirty (30) days in the county jail and a fifty dollar ($50.00) fine, probated for a period of one (1) year. See Article 42.13, V.A.C.C.P.

On appeal appellant advances three grounds of error. She contends that there is no evidence of probative value identifying her as the perpetrator of the offense alleged, that proof of handwriting will not support a conviction where the signature is denied under oath, and that the trial judge assumed the role of prosecutor stepping out of his impartial role of supervisor of the trial and thus abusing his discretion.

The record before us reflects an unassigned ground of error that must be considered "in the interest of justice." See Article 40.09, § 13, V.A.C.C.P. The record shows that appellant waived the right to counsel and attempted to defend herself. The question presented is whether the appellant voluntarily and intelligently waived her right to counsel only after being made aware of the advantages and disadvantages of self-representation so that it is clear that she "`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.2d 562 (1975).

In Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App. 1978), this court wrote:

"It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App. 1976); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App. 1972). However, an accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App. 1977); Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App. 1977). To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra; Thomas v. State, supra. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to represent himself. Thomas v. State, supra; Webb v. State, 533 S.W.2d 780 (Tex.Cr.App. 1976). In Faretta v. California, supra, the Supreme Court held that the record should reflect that the defendant waived his right to counsel only after being made aware of the advantages and disadvantages of self-representation so that it is clear that he 'knows what he is doing and his choice is made with eyes open.' 425 U.S. at 835, 95 S.Ct. at 2541."

Although the appellant in the instant case orally stated she would waive counsel and signed a written waiver, the record contains no evidence she comprehended the meaning of her act or the problems of self-representation. There was no inquiry into her age, educational background, her legal experience, her knowledge of the rules of evidence and trial procedures, nor was she informed of the advantages of having counsel and the possible disadvantages of representing oneself. In light of Faretta and Jordan, the case must be reversed.

The judgment is reversed and the cause remanded.