¶1dissenting.
¶2I remain convinced of the soundness of our opinion on original submission, but desire to call attention to additional factual and legal realities that further contradict the concepts in the majority opinion on rehearing.
¶3The majority quotes and apparently adopts the view of Chief Justice Burger expounded by him at the National Defender Conference in 1969 to the effect that the defendant has no right to make decisions affecting his fate during the progress of his trial other than what plea to enter, whether to have a jury, and whether to take the stand. It was this very view, which was again expressed by Chief Justice Burger in his dissent in Faretta v. California, supra, that was overruled by the Supreme Court in the Faretta decision.
¶4*281Article 1, Sec. 10 of the Texas Constitution provides:
“The accused shall have the right of being heard by himself or counsel or both.” (Emphasis added)
¶5Under no possible construction of the English language as it has ever existed can one construe the term “heard” in the above Constitutional provision to have different meanings as to the terms himself, or counsel or both. Would the majority interpret this provision as guaranteeing defense counsel the right to testify? It is inconsistent to interpret “heard” to mean “the right to testify” when applied to the accused, while interpreting “heard” as “the right to conduct a defense” when applied to counsel.
¶6Article 1, Sec. 10 is expressly made applicable “in all criminal prosecutions”. The term “criminal prosecution” encompasses all proceedings therein from indictment through sentence and the right to be heard applies to each and every one. In-depth analysis of the historical data set out in the majority opinion as well as that set out in Faretta, supra, verifies this obvious conclusion instead of detracting therefrom as contended by the majority.
¶7In Faretta v. California, supra, 422 U.S. at page 819, 95 S.Ct. at page 2533, the Supreme Court of the United States makes plain to all the true meaning of the Sixth Amendment by the following pronouncements:
“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense . The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
The counsel provision supplements this design. It speaks of the ‘assistance’ of counsel,- and an assistant, however expert, is still an assistant.' The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant— not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.”
¶8In view of these clear and certain pronouncements, how can one contend that an accused’s timely demand of his now certain right to personally make his defense by cross-examining the witnesses against him can be, or even should be, denied merely because he has an attorney sitting by his side as an assistant or a so-called co-counsel? When an accused states at the beginning of a trial that he will exercise his now ironclad right to represent himself, will the majority hold that the trial court, in the face of the Sixth Amendment and Article 1, Sec. 10, has the right to prohibit an attorney from sitting at the counsel table with him as his assistant? If not, what happens when an accused is suddenly confronted with a matter beyond his comprehension or training and, consistent with ordinary rules of procedure, his co-counsel (assistant) attempts to handle same? When consistent with ordinary procedural rules for co-counsel, would the majority hold that said co-counsel (assistant) could not participate? What if the accused himself is an attorney? Would the majority make a distinction between when a defendant singularly demands to defend himself, thereafter singularly requesting that his lawyer be permitted to assist him and when a defendant simply demands the right to act as co-counsel with his lawyer and cross-examine the witnesses against him in accordance with the rules of procedure for co-counsel? As stated by the Supreme Court in Faretta, “It is the accused, not counsel, who must be confronted with witnesses against him.” (Emphasis added.) Thus, not only does the Sixth Amendment right to counsel sustain the defendant’s position herein, but the Sixth Amendment’s personal right to confront the witnesses likewise supports and requires that the accused be afforded his right to personally cross-examine the witnesses against him. Said right was; of course, subject to the trial judge’s discretionary powers pertaining to cross-examination such as the requiring that the cross-examination of one witness be limited to one *282counsel, that same be conducted in an orderly manner, be non-repetitious and limited by the rules of evidence. 61 Tex.Jur.2d, Witnesses, Sec. 128 (1964) at 696.
¶9The majority opinion quite surprisingly gives as reasons and justification for its shrinking of the individual Constitutional right pronounced in Faretta the theories’ that to accord such individual right might cause a defense counsel to have to put up with an untrained defendant, might cause some claims of ineffective assistance of counsel, might cause a civil suit against a lawyer, might result in a conflict between a lawyer and his client as to trial strategy, might give a defendant a right to be heard on appeal, might increase the likelihood of a trial being a farce, and might carry the potential for chaos in the courtroom. Not one of said fears has any justification in fact. Actually, regardless of whether an accused is participating in his own defense or not, a lawyer must in all cases bow to the ultimate decision of his client on strategy or withdraw from the case; there would be less grounds for a claim of ineffective counsel and fewer law suits against lawyers would be filed; there would be less likelihood of a trial becoming a mockery of justice where an accused representing himself has the benefit of the advice of co-counsel; and disruptive conflicts between the trial judge and the accused who has elected to conduct his own defense would occur far less frequently if the accused had the settling and persuasive influence of trained co-counsel by his side. Of course, the realities are that any defendant who is bent on a course of disruption of courtroom procedure would do so regardless of the presence or absence of counsel. When such is not an avowed purpose of the defendant, the presence of a co-counsel, friendly to his own interests, would necessarily contribute favorably to orderly procedure.
¶10The State’s Motion for Rehearing should be overruled.