Smith v. State

ERVIN, Judge.

Appellants raise the issue whether they knowingly, voluntarily and intelligently waived their right to counsel. We affirm the waiver as to appellant Gary Smith, but reverse as to Otis Smith.

When Gary Smith was queried regarding his waiver of counsel the following colloquy ensued:

THE COURT: Gary Phillip Smith. And Otis Dean Smith. Are they Co-Defendants?

MR. HUSBANDS: Yes ma’am.

MR. GARY SMITH: Yes ma’am.

THE COURT: Is Mr. Otis Dean Smith present in the courtroom?

MR. GARY SMITH: Your Honor,, my brother is presently snowed in in Northern California. ... I have filed upon his behalf…