Opinion
10-22-00165-CR
07-25-2022
ANDRE DUANE BOYD, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2022-737-C1
Before Chief Justice Gray, Justice Johnson, and Justice Smith
ABATEMENT ORDER
PER CURIAM
A jury convicted Andre Duane Boyd of aggravated robbery, aggravated assault against a public servant, and evading arrest or detention with a vehicle. The jury then assessed Boyd's punishment, enhanced by prior felony convictions, at fifty years' imprisonment for each offense, to be served concurrently. This appeal ensued.
On May 19, 2022, the trial court signed an "Order Appointing Attorney on Appeal." The order stated that the trial court had been informed that Boyd "does not have an attorney, does not have sufficient funds to employ an attorney, and desires to appeal the judgment of conviction herein rendered against him." The trial court accordingly appointed attorney Christopher L. King to represent Boyd in this appeal. Boyd, however, acting pro se, has now filed with this Court a "Motion to Waive Appellant Counsel," in which he requests that he be allowed to represent himself in this appeal.
An indigent criminal defendant has a constitutional right to appointed counsel in a first appeal of right. Scott v. State, 80 S.W.3d 184, 197 (Tex. App.-Waco 2002, pet. ref'd) (citing Douglas v. California, 372 U.S. 353, 356-57, 83 S.Ct. 814, 816-17, 9 L.Ed.2d 811 (1963)). The appointment of counsel for an indigent defendant in a criminal case is under the sole authority of the trial court. See Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.-Waco 1999, order) (per curiam); Tex. Code Crim. Proc. Ann. art. 26.04(a); cf. Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006). A defendant does not have the right to his choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself, or shows adequate reason for appointment of new counsel, he must accept the counsel appointed by the trial court. Rodriguez v. State, 491 S.W.3d 18, 33 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd).
The United States Supreme Court has held that there is no constitutional right to represent oneself on appeal. Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 163, 120 S.Ct. 684, 692, 145 L.Ed.2d 597 (2000); see Fewins v. State, 170 S.W.3d 293, 295 (Tex. App.-Waco 2005, order) (per curiam) (clarifying that "article I, section 10 of the Texas Constitution does not confer the right of self-representation afforded by the Sixth Amendment under Faretta" (footnote omitted)). However, a criminal defendant does have a statutory right to self-representation on appeal. See Tex. Code Crim. Proc. Ann. art. 1.051(d)(1); see also Sickles v. State, 170 S.W.3d 298, 299 (Tex. App. -Waco 2005, order) (per curiam).
Subsection f of article 1.051 of the Code of Criminal Procedure authorizes a criminal defendant to waive his right to appointed counsel, so long as the waiver is made "voluntarily and intelligently" and "in writing." Tex. Code Crim. Proc. Ann. art. 1.051(f). Once the right to self-representation is asserted, the trial judge must inform the defendant about "the dangers and disadvantages of self-representation," so that the record will establish that he knows what he is doing and that his choice is made with eyes open. See id. art. 1.051(g). If the court determines that the criminal defendant has voluntarily and intelligently waived his right to counsel, the court shall require him to execute a written waiver of counsel which substantially complies with article 1.051(g). Id.
Accordingly, because Boyd has asserted his right to self-representation in this appeal, we abate this cause to the trial court to conduct a hearing and comply with Code of Criminal Procedure article 1.051(g). The trial court shall conduct the hearing within 21 days of the date of this Order. The trial court clerk and court reporter shall file supplemental records within 35 days of the date of this Order.