Jerry Dean Smith, Jr. v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-20-00033-CR

JERRY DEAN SMITH, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 18F1193-005

Before Morriss, C.J., Burgess and Stevens, JJ.

ORDER

Jerry Dean Smith, Jr., has appealed from his conviction of indecency with a child and the resulting seven-year sentence. The trial court deemed Smith indigent and appointed Bart C. Craytor to represent him on appeal. Despite the fact that briefing in this case has been completed and the case is currently set for submission to this Court on October 14, 2020, Craytor has filed a motion seeking to withdraw as counsel, to have the brief he filed on Smith’s behalf stricken, and to allow Smith to proceed pro se and to file his own appellate brief.

In 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 Cal., 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 Wis. Dist. 1, 486 U.S. 429, 435 (1988).

Craytor now represents 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, 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 Cal., 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, pet. ref’d) (“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, 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, pet. ref’d) (per curiam).

We must abate this matter to the trial court for a determination of whether, among other things, Smith actually desires to represent himself on appeal and whether 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 counsel1 and

b. the trial court should determine and enter findings on whether, after being admonished, Smith still desires to represent himself on appeal.

3. If Smith still desires to represent himself on appeal after having been admonished,

a. the trial court should determine and enter findings on whether Smith’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 Smith 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 Smith should be permitted to represent himself in this appeal.

The trial court should issue written findings and recommendations consistent with the foregoing, which this Court will review and consider before we issue further orders on reinstatement of the 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 twenty days of the date of the hearing. See generally TEX. R. APP. P. 38.8(b)(3). The trial

1 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).

court’s 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.

BY THE COURT

Date: September 29, 2020