Opinion
14-23-00712-CR
12-10-2024
ANDREW BURKE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 458th District Court Fort Bend County, Texas Trial Court Cause No. 22-DCR-099866
Panel Consists of Christopher Chief Justice and Zimmerer and Poissant Justices.
ORDER
PER CURIAM
Appellant is represented by appointed counsel, Carey M. Faden. On July 22, 2024, appellant filed a motion to dismiss his appointed attorney and to proceed pro se on appeal.
When a criminal appellant waives his right to appointed counsel, he waives many traditional benefits associated with the right to counsel. Before an appellant may dismiss appointed counsel and proceed pro se, the waiver must be "knowingly and intelligently" made. See Faretta v. California, 422 U.S. 806 (1975).
In Martinez v. California, 528 U.S. 152 (2000), the United States Supreme Court reaffirmed its holding that criminal defendants have a constitutional right to conduct their own defense at trial, if they voluntarily and intelligently elect to do so; however, the Court then held that criminal defendants have no federal constitutional right to represent themselves on direct appeal from a conviction. Id. at 154, 62. The Court added, however, that appellate courts may, in the exercise of their discretion, allow a defendant to proceed pro se on appeal based on the best interests of the defendant and the government. Id. at 161, 62. In other words, criminal defendants have no federal constitutional right to self-representation on direct appeal, but states are not precluded from recognizing such a right under their own constitutions. Id.
This court has adopted the standard established in Martinez, and we review requests to proceed pro se on a case-by-case basis considering the best interests of both the criminal appellant and the State. See Hadnot v. State, 14 S.W.3d 348, 349 (Tex. App.-Houston [14th Dist.] 2000) (order).
On August 8, 2024, we issued an order abating this appeal to allow the trial court to conduct a Faretta hearing. See Faretta v. California, 422 U.S. at 808. On November 21, 2024, the trial court clerk filed a reporter's record and supplemental clerk's record from that hearing. The trial court issued findings of fact and conclusions of law stating that appellant voluntarily, knowingly, intelligently, and unequivocally waived his right to counsel, but that appellant's desire to proceed pro se on appeal was not in his best interest. During the hearing, appellant testified that counsel had not communicated with him and that he did not believe it was in his best interest for counsel to continue to represent him. Appellant stated he understands the law, but also communicated several misunderstanding of legal procedure, including a desire to file a motion for new trial even though the deadline has long-since passed. Appellant argued that his trial counsel and appellate counsel have provided ineffective representation in numerous regards.
Counsel filed appellant's brief on July 29, 2024. The brief raises one point of error and contain argument and citation to authority.
Under these circumstances, it would not be in the best interest of either appellant or the State to allow appellant to waive counsel and proceed pro se. See Hadnot, 14 S.W.3d at 349 (denying appellant's request to dismiss his lawyer and represent himself in part because his lawyer had already filed a brief).
Accordingly, appellant's motion is denied. The appeal is reinstated and the State's brief is due 30 days from today's date.