Opinion
NO. 14-18-00099-CR
10-29-2019
ZACHARY FOYT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court Brazoria County, Texas
Trial Court Cause No. 79248-CR
ORDER
Appellant Zachary Foyt appeals his conviction for murder. Appellant is represented by appointed counsel, Crespin Michael Linton, who was appointed on September 17, 2018. Appellant's counsel filed a brief on appellant's behalf on February 13, 2019. Appellant raises seven issues in his brief.
On May 13, 2019, appellant filed a pro se handwritten document in this court requesting a thirty-day extension of time to file a brief amending issue one raised in his original brief. We denied this motion on June 4, 2019, because a defendant has no right to hybrid representation, and therefore a court need not consider a pro se document filed while a defendant has counsel. Scheanette v. State, 144 S.W.3d 503, 505 n. 2 (Tex. Crim. App. 2004); Thomas v. State, 286 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
The State filed a brief on May 14, 2019.
On June 3, 2019, appellant filed a pro se handwritten document in this court stating that he is dissatisfied with his appointed counsel and requesting "separate counsel" or, alternatively, requesting to represent himself on appeal. We denied this motion on June 20, 2019.
On August 30, 2019, the court notified the parties that this case would be set for submission on the briefs and without oral argument on October 10, 2019.
On September 10, 2019, appellant filed a pro se handwritten document requesting leave to amend issue one in his appellant's brief. We denied this motion on September 19, 2019, again citing authority that a defendant has no right to hybrid representation, and therefore a court need not consider a pro se document filed while a defendant has counsel. Scheanette, 144 S.W.3d at 505 n. 2; Thomas, 286 S.W.3d at 113.
On September 24, 2019, appellant filed a pro se handwritten document that he presents as an amended/supplemental brief pertaining solely to issue one raised in his original brief. The document is six pages long and presents argument and authority challenging the sufficiency of the evidence to support his conviction for murder. On October 7, 2019, appellant filed a pro se handwritten document requesting thirty days to prepare a pro se appellant's brief.
An accused is entitled to the assistance of counsel at trial and through the conclusion of his direct appeal. Buntion v. Harmon, 827 S.W.2d 945, 948-49 (Tex. Crim. App. 1992). Criminal defendants have a Sixth Amendment right to conduct their own defense at trial if they knowingly and intelligently relinquish their right to counsel. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L.Ed. 2d 562 (1975). However, the Sixth Amendment right to self-representation does not extend to the direct appeal from a criminal conviction. Martinez v. Court of Appeal of California, 528 U.S. 152, 163, 120 S. Ct. 684, 145 L.Ed.2d 597 (2000); Scheanette, 144 S.W.3d at 505 n.2; Hadnot v. State, 14 S.W.3d 348, 350 (Tex. App.—Houston [14th Dist.] 2000, order) (per curiam).
Appellate courts have discretion to permit an appellant to represent himself on appeal if he can do so without interfering with the administration of the appellate process. Bibbs v. State, No. 07-10-0300-CR, 2011 WL 6015773 (Tex. App.—Amarillo Dec. 2, 2011, order) (per curiam). 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, 14 S.W.3d at 349.
In exercising our discretion to permit appellant to represent himself from this point forward on appeal, we consider the following. Appellant was convicted of murder. Appellant and the State have filed briefs, and the court submitted this case on October 10, 2019. Appellant's request to amend his appellant's brief is timely, as he raised the request promptly after reviewing the brief filed by his appointed counsel, and we do not construe appellant's request as an attempt to manipulate or obstruct the orderly procedure of the court or to interfere with the fair administration of justice. See Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987). Appellant has requested leave to file a pro se amended brief, however, as to only one of seven issues raised in his original brief, and he has indicated no desire to amend any other issues or to abandon the remaining six points raised in the original brief filed by his appointed counsel. Appellant has also filed a proposed amended/supplemental brief, which sufficiently complies with the rules of procedure and presents argument and authorities in support of his position that the evidence is insufficient to support his conviction. Therefore, in this case and under these unique circumstances we conclude it is appropriate and in the best interests of appellant and of the State to consider appellant's pro se amended/supplemental brief together with the original brief filed by appellant's counsel. See Williams v. State, 946 S.W.2d 886, 892 (Tex. App.—Waco 1997, no pet.) (appellate court may consider pro se issue in the interest of justice even though appellant has no right to hybrid representation). The court reconsiders appellant's motion for leave to file an amended/supplemental brief and we GRANT the motion in part. Appellant's pro se proposed amended/supplemental brief tendered on September 24, 2019, is accepted and filed. Appellant's requests for additional relief are DENIED, including his October 7, 2019, request for an extension of time to file additional briefing.
The State may, but is not required to, supplement its appellee's brief to respond to the arguments included in appellant's pro se brief tendered for filing on September 24, 2019. Any such supplemental brief by the State must be filed on or before November 13, 2019.
It is so ORDERED.
PER CURIAM Panel Consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish - Tex. R. App. P. 47.2(b)