Opinion
No. 06-17-00104-CR
04-18-2018
TORRY JAMAL REED, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 41786-B Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
Torry Jamal Reed has appealed from his conviction of murder and the resulting seventy-five-year sentence. The trial court deemed Reed indigent and appointed counsel to represent him at trial. Despite the fact that the trial court appointed Ebb Mobley to represent Reed on appeal, Mobley withdrew from representation at Reed's request after Reed retained Gerald L. Smith, Sr., to represent him on appeal. Thereafter, Smith filed a brief on Reed's behalf advising the trial court that he could find no non-frivolous issues to raise on appeal and filed a motion to withdraw as counsel. We ultimately permitted Smith to withdraw and abated this matter to the trial court to determine whether Reed is indigent and entitled to the appointment of counsel to represent him in this appeal. We directed the trial court to appoint counsel to represent Reed in this appeal if it determined Reed to be indigent.
The trial court determined Reed to be indigent and, once again, appointed Mobley to represent Reed on appeal. Reed has now filed a motion in this Court seeking to represent himself on appeal.
In Texas, every person convicted of a crime has a statutory right to appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); Nguyen v. State, 11 S.W.3d 376, 378 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The Sixth and Fourteenth Amendments to the United States Constitution mandate that each criminal appellant, whether rich or poor, is guaranteed the right to counsel on direct appeal from a criminal conviction. U.S. CONST. amends. VI, XIV; see Douglas v. California, 372 U.S. 353 (1963). When a defendant is indigent, an attorney must be appointed by the State to represent him on appeal. See McCoy v. Court of Appeals of Wisconsin Dist. 1, 486 U.S. 429, 435 (1988).
It appears that Reed desires to forego his right to counsel and to represent himself in this appeal. In the words of the United State 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, 431 U.S., at 656, 97 S. Ct. 2034. It necessarily follows that the Amendment itself does not provide any basis for finding a right to self-representation on appeal.Martinez v. Court of Appeals of California, Fourth Appellate Dist., 528 U.S. 152, 160 (2000); see Hadnot v. State, 14 S.W.3d 348, 350 (Tex. App.—Houston [14th Dist.] 2000, order) ("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) (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) (not designated for publication) (per curiam); see Bibbs v. State, No. 07-10-00300-CR, 2011 WL 5026903, at *1 (Tex. App.—Amarillo Oct. 21, 2011, order) (not designated for publication) (per curiam); Cormier v. State, 85 S.W.3d 496, 498 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (per curiam).
We must abate this matter to the trial court for a determination of whether, among other things, Reed's decision to self-represent on appeal is a competent, voluntary, and intelligent decision. See Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987). 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. Whether Reed wishes to represent himself on appeal.
2. If Reed desires to represent himself on appeal:
a. the trial court must admonish Reed 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, Reed still desires to represent himself on appeal.
3. If Reed still desires to represent himself on appeal after having been admonished,
a. the trial court should determine and enter findings on whether Reed'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 Reed 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, see Ainsworth, 2015 WL 4389019, at *1.
4. The trial court should enter any additional findings it might deem useful to this Court in determining the issue of whether Reed should be permitted to represent himself in this appeal, including, but not limited to, findings regarding Reed's
allegation in the motion filed with this Court that appointed counsel indicated that there was an appellate issue that could be beneficial to Reed, but counsel does not intend to raise that issue.
See Iowa v. Tovar, 541 U.S. 77, 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 considerations 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 Reed no longer wishes to represent himself on appeal, then currently appointed counsel shall continue to represent Reed in this appeal. The court shall issue findings and recommendations expressing its determinations on the aforementioned issues. If the court recommends that we permit Reed to represent himself on appeal, this Court will review that recommendation and issue further orders on reinstatement of this appeal.
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 fifteen 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 fifteen 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.
BY THE COURT Date: April 18, 2018