Opinion
No. 04-15-00431-CR No. 04-15-00432-CR
02-04-2016
David Jermain HAWKINS, Appellant v. The STATE of Texas, Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR0290 and 2015CR0291
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
On January 26, 2016, appellant filed a motion "to vacate brief for appellant," to proceed pro se, and for an extension of time to file a pro se brief. Counsel's brief on behalf of appellant was filed December 21, 2015, and the State's brief was filed January 20, 2016. Thus, the appeal is at issue and ready for submission.
In Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987), the court held that an accused's right to represent himself cannot be manipulated so as to obstruct the orderly procedure in the courts or interfere with the fair administration of justice. In Hubbard, because the appellant requested to represent himself on appeal soon after his counsel filed the appellant's brief and before the State's brief was filed, and the record established he had "been frustrated throughout the pendency of his appeal" because, among other things, counsel refused to raise certain grounds of error desired by the appellant, the court held the appellant timely asserted his right to proceed pro se. Id.
Here, in his motion, appellant admits he received counsel's brief on December 28, 2015. However, his motion to appear pro se is postmarked January 22, 2016 — almost a month after he admittedly received counsel's brief and two days after the State's brief was filed. Moreover, in his motion, appellant simply states he "is aggrieved by both Trial and Appellate Counsel; by their ineffectiveness and requests an opportunity to have his right of being heard, Pro Se, preserved pursuant to Texas Constitution Article 1 § 10." Reviewing appellate counsel's brief, he did, in fact, raise ineffective assistance of trial counsel. Appellant does not suggest any other issues that he believes appellate counsel should have raised.
We find appellant's motion untimely and hold that to permit counsel to proceed pro se at this point would interfere with the fair administration of justice. See id. Accordingly, we DENY appellant's motion to vacate counsel's brief, proceed pro se, and for an extension of time to file a pro se brief.
We order the clerk of this court to serve a copy of this order on appellant and all counsel.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 4th day of February, 2016.
/s/_________
Keith E. Hottle
Clerk of Court