Court of Appeals of Texas, Sixth District, Texarkana
Appeal from the 202nd District Court Bowie County, Texas
Trial Court No. 15F0579-202
Morriss, C.J., Moseley and Burgess, JJ.
Brown appeals his jury conviction of murder. Brown was
represented by appointed counsel, Alwin A. Smith, at trial
and was likewise appointed counsel to represent his interests
on appeal. Brown's appellate counsel, Troy Hornsby, has
filed a brief with this Court on Brown's behalf. Ten days
after Brown's appellate brief was filed, Brown filed his
"Motion for Self Representation, " followed by a
"Motion to Agreements of Parties or Counsel"
indicating that the brief filed on his behalf by Hornsby
"is in conflict with Appellant's written
instructions by correspondence." Brown seeks to file a
brief on his own behalf in order to correct the alleged
defects in the brief filed by Hornsby.
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 every criminal appellant, whether
rich or poor, is guaranteed the right to counsel on a first
appeal. U.S. Const. amends. VI, XIV; see Douglas v.
People of State of 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). Although Brown 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, 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 Appeal 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, no pet.) ("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
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, 06-07-00107-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). 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).
Brown filed his motion to proceed pro se promptly after he
received the brief filed by his appellate counsel, well
before the State's brief was due to be filed. Brown's
request for self-representation was, therefore, timely.
abate this appeal, however, for a determination of whether,
among other things, Brown'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 Brown is
unable to afford the costs of retaining counsel on his own,
the trial court should again determine and enter findings on
whether Brown is indigent;
2. Assuming Brown is indigent, the trial court should
determine and enter findings on whether Brown still wishes to
represent himself on appeal.
3. If Brown still desires to represent himself on appeal,
a. the trial court must admonish Brown 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, Brown still desires to