Opinion
No. 06-15-00124-CR
02-03-2016
LARRY JOE JONES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 85th District Court Brazos County, Texas
Trial Court No. 14-02769-CRF-85 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
Larry Joe Jones appeals his jury conviction of evading arrest or detention with a motor vehicle. Jones was represented by appointed counsel, Clyde Daniel Jones, III, at trial, and was likewise appointed counsel to represent his interests on appeal. Jones' appellate counsel, David W. Crawford, has filed a brief with this Court on Jones' behalf. Six days after Jones' appellate brief was filed, Jones filed his "Motion to Dismiss Counsel" and "Proceed Pro-Se on Direct Appeal."
On December 17, 2015, this Court abated Jones' appeal to the trial court to conduct a hearing to determine (1) whether Jones is indigent, (2) assuming Jones is indigent, whether he still wished to represent himself on appeal, if so, (3) whether Jones' decision to represent himself on appeal is a knowing, intelligent, and voluntary decision, see Faretta v. California, 422 U.S. 806, 835 (1975); Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987), (4) to administer the warnings of the pitfalls of engaging in the appellate process without counsel must be rigorously conveyed, see Iowa v. Tovar, 541 U.S. 77 (2004), and (5) if Jones wished to represent himself on appeal, whether allowing him to do so would be in his best interest, in the State's best interest, and in furtherance of the proper administration of justice.
We further directed the trial court to issue findings and recommendations expressing its determinations on the aforementioned issues and stated that if the court recommends that we permit Jones to represent himself on appeal, we would review that recommendation and issue further orders on reinstatement of this appeal.
We believe the trial court, unfortunately, misconstrued our order. Its task was simply to issue findings and recommendations on the aforementioned issues. While the trial court ably conducted the hearing requested by this Court, and duly administered the Faretta admonishments, the trial court then advised Jones that he would be permitted to represent himself on appeal and granted Crawford's motion to withdraw. The decision regarding Jones' self-representation on appeal was properly one to be made by this Court, after due consideration to the trial court's findings and recommendations. Further, this Court did not direct the trial court, under any circumstance, to permit appointed counsel to withdraw from representing Jones in this appeal.
Because it is not in Jones' best interest, the best interest of the State, or the administration of justice, Ex parte Ainsworth, Nos. 07-15-00091-CR, 07-15-00106-CR, 07-15-00107-CR, 2015 WL 4389019, at *1 (Tex. App.—Amarillo July 15, 2015, order) (per curiam) (not designated for publication), this Court is inclined to overrule Jones' request to represent himself on appeal and abate this case to the trial court for re-appointment of appellate counsel. Notwithstanding the fact there is no constitutional right to self-representation on appeal, in Sickles v. State, 170 S.W.3d 298, 299 (Tex. App.—Waco 2005, order) (per curiam), the Waco court concluded that a criminal appellant has a statutory right of self-representation on appeal. That right emanates from Article 1.051 of the Texas Code of Criminal Procedure, which provides,
At the hearing conducted by the trial court, it came to light that Jones has a ninth-grade education, that he had not read counsel's brief. Consequently, did not know if he agreed or disagreed with it, that Jones had never even seen, much less read, the Texas Rules of Evidence, the Texas Code of Criminal Procedure, or the Texas Rules of Appellate Procedure and that Jones had no knowledge or experience that would equip him with the very specialized set of skills necessary to write, within a reasonable period of time, a meaningful appellate brief.
The court relied on Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order) (per curiam), for its holding. --------
(d) An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in the following appellate . . . matters:
TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(1), (2) (West Supp. 2015).(1) an appeal to a court of appeals; [and]
(2) an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted[.]
Subsection (f) then provides that a defendant may waive the right to counsel. Id. art. 1.051(f). Finally, subsection (g) requires a trial court to advise a defendant who wishes to waive his right to counsel "of the dangers and disadvantages of self-representation," and determine whether "the waiver is voluntarily and intelligently made." Id. art. 1.051(g).Fewins, 170 S.W.3d at 295. Further,
Article 1.051(d) provides that an indigent criminal appellant has the right to appointed counsel. Subsection (f) of that same statute provides that an indigent criminal appellant may waive that right (and thus represent himself). Any other interpretation of these statutory provisions would strain them beyond their intended meaning.Id. at 296.
In light of the fact that Sickles and Fewins, only require that an indigent criminal appellant make a voluntary and intelligent waiver of the right to counsel, and this has been confirmed by the trial court, we grant Jones' request to represent himself in this appeal. We overrule, as moot, Jones' request to dismiss counsel.
IT IS SO ORDERED.
BY THE COURT Date: February 3, 2016