Opinion
No. 06-17-00047-CR
09-06-2017
BRANDON BROWN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 202nd District Court Bowie County, Texas
Trial Court No. 15F0579-202 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
Brandon Brown appeals his jury conviction of murder. Brown was represented by appointed counsel, Alwin A. Smith, at trial and was likewise appointed counsel to represent his interests on appeal. Brown's appellate counsel, Troy Hornsby, has filed a brief with this Court on Brown's behalf. Ten days after Brown's appellate brief was filed, Brown filed his "Motion for Self Representation," followed by a "Motion to Agreements of Parties or Counsel" indicating that the brief filed on his behalf by Hornsby "is in conflict with Appellant's written instructions by correspondence." Brown seeks to file a brief on his own behalf in order to correct the alleged defects in the brief filed by Hornsby.
In Texas, every person convicted of a crime has a statutory right to appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); Nguyen v. State, 11 S.W.3d 376, 378 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The Sixth and Fourteenth Amendments to the United States Constitution mandate that every criminal appellant, whether rich or poor, is guaranteed the right to counsel on a first appeal. U.S. CONST. amends. VI, XIV; see Douglas v. People of State of California, 372 U.S. 353 (1963). When a defendant is indigent, an attorney must be appointed by the State to represent him on appeal. See McCoy v. Court of Appeals of Wisconsin Dist. 1, 486 U.S. 429, 435 (1988). Although Brown is currently represented by appointed counsel, he has expressed the desire to forego his right to counsel and represent himself in this appeal. In the words of the United States Supreme Court,
The Sixth Amendment does not include any right to appeal. As we have recognized, "[t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute." Abney, 431 U.S., at 656, 97 S. Ct. 2034. It necessarily
follows that the Amendment itself does not provide any basis for finding a right to self-representation on appeal.Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 160 (2000); see Hadnot v. State, 14 S.W.3d 348, 350 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ("No Texas court has recognized a state constitutional right to self-representation on direct appeal."); Stafford v. State, 63 S.W.3d 502, 506 (Tex. App.—Texarkana 2001, pet. ref'd) (permitting appellant to proceed pro se in direct appeal, noting that appellant "had no constitutional right to self-representation" and stating that no "broader right exists under the Texas Constitution that would compel this result").
We review a request for self-representation in a direct criminal appeal on a case-by-case basis by considering "the best interest of the appellant, the State, and the administration of justice." Ex parte Ainsworth, Nos. 07-15-00091-CR, 07-15-00106-CR, 06-07-00107-CR, 2015 WL 4389019, at *1 (Tex. App.—Amarillo July 15, 2015, order) (not designated for publication) (per curiam); see Bibbs v. State, No. 07-10-00300-CR, 2011 WL 5026903, at *1 (Tex. App.—Amarillo Oct. 21, 2011, order) (not designated for publication) (per curiam); Cormier v. State, 85 S.W.3d 496, 498 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (per curiam). An appellant's desire to represent himself on appeal may not, however, "be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice." Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987).
Here, Brown filed his motion to proceed pro se promptly after he received the brief filed by his appellate counsel, well before the State's brief was due to be filed. Brown's request for self-representation was, therefore, timely.
We must abate this appeal, however, for a determination of whether, among other things, Brown's decision to self-represent on appeal is a competent, voluntary, and intelligent decision. See id. at 345. We, therefore, abate this appeal to the trial court so that it may conduct any hearings (whether in person, by video link, or by teleconference) necessary to address the following issues:
1. Although we assume the trial court has determined Brown is unable to afford the costs of retaining counsel on his own, the trial court should again determine and enter findings on whether Brown is indigent;
2. Assuming Brown is indigent, the trial court should determine and enter findings on whether Brown still wishes to represent himself on appeal.
3. If Brown still desires to represent himself on appeal,
a. the trial court must admonish Brown of the pitfalls of engaging in the appellate process without the assistance of counsel, and
b. the trial court should determine and enter findings on whether, after being admonished, Brown still desires to represent himself on appeal.
4. If Brown still desires to represent himself on appeal after having been admonished,
a. the trial court should determine and enter findings on whether Brown's decision to represent himself on appeal is a knowing, intelligent, and voluntary decision, see Faretta v. California, 422 U.S. 806, 835 (1975); Hubbard, 739 S.W.2d at 345, and
b. the trial court should determine and enter findings on whether allowing Brown to represent himself on appeal is in his best interest, in the State's best interest, and in furtherance of the proper administration of justice.
5. The trial court should enter any additional findings it might deem useful to this Court in determining the issue of whether Brown should be permitted to represent himself in this appeal.
See Iowa v. Tovar, 541 U.S. 77, 89 (2004) (discussing the general admonishments a defendant must receive before being allowed to proceed pro se at trial); see also Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988) (noting that, when considering self-representation on appeal, the record must also show that the appellant fully understands the practical disadvantages of self-representation, including the fact that he will not be granted any special consideration regarding or relief from the technicalities of the Texas Rules of Appellate Procedure solely because he elects to appear pro se).
If the trial court determines that Brown is indigent and is entitled to appointed counsel and if it further determines that Brown no longer wishes to represent himself on appeal, then currently appointed counsel shall continue to represent Brown in this appeal.
The court shall issue findings and recommendations expressing its determinations on the aforementioned issues. If the court recommends that we permit Brown to represent himself on appeal, this Court will review that recommendation and issue further orders once jurisdiction over the appeal has been returned to this Court.
The hearing in the trial court shall take place within twenty days of the date of this order. The reporter's record of the hearing shall be filed in the form of a supplemental reporter's record within twenty days of the date of the hearing. See generally TEX. R. APP. P. 38.8(b)(3). Any written findings shall be entered on the record and filed in the form of a supplemental clerk's record within twenty days of the date of the hearing. See id.
All appellate timetables are stayed and will resume on our receipt of the supplemental appellate record.
IT IS SO ORDERED.
BY THE COURT Date: September 6, 2017