Opinion
10-23-00257-CR
02-15-2024
BRYAN STALLWORTH, Appellant v. THE STATE OF TEXAS, Appellee
From the 12th District Court Walker County, Texas Trial Court No. 30582
Before Chief Justice Gray, Justice Johnson, and Justice Smith, J.
ABATEMENT ORDER
PER CURIAM.
Appellant Bryan Stallworth appeals from his convictions for two counts of indecency with a child by contact. The clerk's record was filed on December 11, 2023, and the reporter's record was filed on February 6, 2024.
We have reviewed the status of this appeal and issue the following orders:
Self-Representation
Stallworth has indicated that he is representing himself in this appeal. However, the record does not reflect that he has waived the right to counsel on appeal in writing or that he has been admonished of the dangers and disadvantages of self-representation on appeal.
The United States Supreme Court has held that there is no constitutional right to represent oneself on appeal. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 163, 120 S.Ct. 684, 692, 145 L.Ed.2d 597 (2000); see Fewins v. State, 170 S.W.3d 293, 295 (Tex. App.-Waco 2005, order) (per curiam) (clarifying that "article I, section 10 of the Texas Constitution does not confer the right of self-representation afforded by the Sixth Amendment under Faretta" (footnote omitted)). However, a criminal defendant does have a statutory right to self-representation on appeal. See Tex. Code Crim. Proc. Ann. art. 1.051(d)(1), (f); see also Sickles v. State, 170 S.W.3d 298, 299 (Tex. App.-Waco 2005, order) (per curiam). Subsection f of article 1.051 of the Code of Criminal Procedure authorizes a criminal defendant to waive his right to appointed counsel, so long as the waiver is made "voluntarily and intelligently" and "in writing." Tex. Code Crim. Proc. Ann. art. 1.051(f). Once the right to self-representation is asserted, the trial judge must inform the defendant about "the dangers and disadvantages of self-representation," so that the record will establish that he knows what he is doing and that his choice is made with eyes open. See id. art. 1.051(g). If the court determines that the criminal defendant has voluntarily and intelligently waived his right to counsel, the court shall require him to execute a written waiver of counsel that substantially complies with article 1.051(g). See id. art. 1.051(f), (g).
Accordingly, we abate this appeal and remand this cause to the trial court to conduct a hearing within 21 days of the date of this Order to determine whether Stallworth desires to represent himself on appeal. If Stallworth desires to represent himself on appeal, the trial court must admonish him on the record "of the dangers and disadvantages of self-representation." See id. art. 1.051(g); Fewins, 170 S.W.3d at 294. If the court determines that Stallworth has voluntarily and intelligently waived his right to counsel, the court shall require him to execute a written waiver of counsel that substantially complies with article 1.051(g). See id. art. 1.051(f), (g); Fewins, 170 S.W.3d at 294.
The trial court clerk and court reporter shall file supplemental records within 35 days of the date of this Order.
Appellate Record
On December 8, 2023, Stallworth filed a "Motion for Stay of Judgment." In the motion, Stallworth mentions that he is attempting to obtain a free copy of the appellate record in this appeal to prepare the appellant's brief.
On December 8, 2023, Stallworth also filed a petition for writ of mandamus in which he seeks to obtain a free copy of the appellate record in this appeal. The petition for writ of mandamus remains pending.
Accordingly, we abate this appeal and remand this cause to the trial court to consider, within 21 days of the date of this Order, Stallworth's request for a free copy of the appellate record in this appeal in light of Rules of Appellate Procedure 20.2, 34.5(g), and 34.6(h). The trial court clerk is ordered to then file a supplemental clerk's record within 35 days of the date of this Order, containing the trial court's order on Stallworth's request for a free copy of the appellate record. If the trial court conducts a hearing on Stallworth's request for a free copy of the appellate record, the court reporter is ordered to also file a supplemental reporter's record of the hearing within 35 days of the date of this Order.
In the meantime, Stallworth's "Motion for Stay of Judgment" filed on December 8, 2023, remains pending.
Appellant's Brief
A document entitled "Brief and Argument" was received from Stallworth and filed with this Court on August 29, 2023. Stallworth's brief in this matter was premature. Neither the clerk's record nor the reporter's record in this appeal had been filed when the "Brief and Argument" was filed. An appellant's brief is not due until 30 days after the clerk's record and the reporter's record are filed. Tex.R.App.P. 38.6.
Because it was filed before the clerk's record and reporter's record were even prepared, the "Brief and Argument" does not contain the necessary references to the official record to be a proper brief. See id. R. 38.1. Accordingly, the "Brief and Argument" is stricken.
The briefing deadline for the appellant's brief is suspended pending further order of this Court.