Opinion
06-24-00089-CR
11-19-2024
TAJ RAMEL LEE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 30504
Before Stevens, C.J., van Cleef and Rambin, JJ.
ORDER
Taj Ramel Lee appeals his convictions of one count of manufacture/delivery of a controlled substance and one count of possession of a controlled substance. The trial court appointed John Mark Burgess to represent Lee's interests on appeal, and on October 16, 2024, Burgess filed a brief with this Court on Lee's behalf. On November 12, 2024, Burgess filed a motion to withdraw as appellate counsel in this matter and seeking leave for Lee to represent himself on appeal.
"In Texas, every person convicted of a crime has a statutory right to appeal." Nguyen v. State, 11 S.W.3d 376, 378 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 44.02). The Sixth and Fourteenth Amendments to the United States Constitution guarantee every criminal appellant, whether rich or poor, the right to counsel on a first appeal. U.S. Const. amends. VI, XIV; see Douglas v. People of State of Cal., 372 U.S. 353 (1963). When a defendant is indigent, the State must appoint an attorney to represent him on appeal. See McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 435 (1988). Although Lee 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 [v. United States, 431 U.S. 651, 656 (1977)]. It necessarily follows that the Amendment itself does not provide any basis for finding a right to self-representation on appeal.Martinez v. Ct. of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 160 (2000) (first alteration in original); see Hadnot v. State, 14 S.W.3d 348, 350 (Tex. App.-Houston [14th Dist.] 2000, order) (per curiam) ("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) (per curiam) (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, 07-15-00107-CR, 2015 WL 4389019, at *1 (Tex. App.-Amarillo July 15, 2015, order) (per curiam) (citing Bibbs v. State, No. 07-10-00300-CR, 2011 WL 5026903, at *1 (Tex. App.-Amarillo Oct. 21, 2011, order) (per curiam); Cormier v. State, 85 S.W.3d 496, 498 (Tex. App.-Houston [1st Dist.] 2002, order) (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, Lee filed his motion to proceed pro se after he received the brief filed by his appellate counsel and before the State's brief was due to be filed. Lee's request for self-representation was, therefore, timely.
We must abate this appeal, however, for a determination of whether, among other things, Lee'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 Lee is unable to afford the costs of retaining counsel on his own, the trial court should again determine and enter findings on whether Lee is indigent;
2. assuming Lee is indigent, the trial court should determine and enter findings on whether Lee still wishes to represent himself on appeal;
3. if Lee still desires to represent himself on appeal,
a. the trial court should admonish Lee 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, Lee still desires to represent himself on appeal;
4. if Lee still desires to represent himself on appeal after having been admonished,
a. the trial court should determine and enter findings on whether Lee'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 Lee 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; and
5. the trial court should enter any additional findings it might deem useful to this Court in determining the issue of whether Lee should be permitted to represent himself in this appeal.
See Iowa v. Tovar, 541 U.S. 77, 88-89 (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 Lee is indigent and is entitled to appointed counsel and if it further determines that Lee no longer wishes to represent himself on appeal, then currently appointed counsel shall continue to represent Lee in this appeal.
The court shall issue findings and recommendations expressing its determinations on the aforementioned issues. If the court recommends that we permit Lee 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.