Court of Appeals of Texas, Sixth District, Texarkana
Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 18-0007X
Morriss, C.J., Burgess and Stevens, JJ.
Miguel Smith has appealed from his conviction of burglary of
a habitation and the resulting nineteen-year sentence. The
trial court deemed Smith indigent and appointed counsel to
represent him at trial. There is nothing in the record
indicating that counsel was appointed to represent Smith on
appeal. However, attorney Ebb Mobley sent this Court a letter
dated December 4, 2019, stating that he does not represent
Smith and stating that Smith desires to represent himself on
appeal. Smith has filed several pro se motions in this Court.
Texas, every person convicted of a crime has a statutory
right to appeal. See Tex. Code Crim. Proc. Ann. art.
44.02; 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).
appears that Smith 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[v. United States], 431
U.S. [651, ] 656, 97 S.Ct. 2034');">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, 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").
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) (per
curiam) (not designated for publication); see Bibbs v.
State, No. 07-10-00300-CR, 2011 WL 5026903, at *1 (Tex.
App.- Amarillo Oct. 21, 2011, order) (per curiam) (not
designated for publication); Cormier v. State, 85
S.W.3d 496, 498 (Tex. App.-Houston [1st Dist.] 2002, order)
abate this matter to the trial court for a determination of
whether, among other things, Smith'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 Smith wishes to represent himself on appeal.
2. If Smith desires to represent himself on appeal:
a. the trial court must admonish Smith of the pitfalls of
engaging in the appellate process without the assistance of
b. the trial court should determine and enter findings on
whether, after being admonished, Smith still desires to