Nathan Felder v. State ( 2004 )

NO. 07-03-0260-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 2, 2004

______________________________



NATHAN FELDER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 69^TH DISTRICT COURT OF DALLAM COUNTY;

NO. 3539; HONORABLE RON ENNS, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER

Appellant Nathan Felder previously submitted a motion requesting that we dismiss his two appointed appellate counsel, who also represented appellant at trial, and allow him to proceed with this appeal pro se. We denied the motion. Now pending before us are appellant's second such motion, a motion to withdraw filed by appointed counsel, and appellant's response to the motion to withdraw. We will deny both appellant's motion and counsel's motion to withdraw.

Our order denying appellant's first motion requesting permission to represent himself cited the U. S. Supreme Court's opinion in Martinez v. Court of Appeal, 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000) and Texas opinions including Cain v. State, 976 S.W.2d 228 (Tex.App.-San Antonio 1998, no pet.); Glenn v. State, No. 03-03-00212-CR, 2003 Tex. App. LEXIS 7082 (Tex.App.-Austin Aug, 6, 2003, no pet.) and Cormier v. State, 85 S.W.3d 496 (Tex.App.-Houston [1^st Dist.] 2002, no pet.) for the conclusion that appellant does not have a constitutional right to represent himself on appeal under either the federal or Texas constitutions. In his second motion, appellant continues to assert that he has such a right on appeal. He cites us to United States v. Davis, 269 F.3d 514 (5^th Cir. 2001) and Manley v. State, 23 S.W.3d 172 (Tex.App.-Waco 2000, pet. ref'd). Both those cases concern a criminal defendant's right of self-representation at trial, not on appeal. They are not applicable to the present issue.

Although we are not certain we fully understand appellant's response to his counsel's motion to withdraw, the response does shed further light on appellant's reasons for wanting to represent himself. We interpret much of what appellant says in the response as speculation by appellant that his counsel will conclude no meritorious appellate issues can be raised on his behalf and that his appeal is thus frivolous. Our interpretation is supported by appellant's citation in the response to Johnson v. State, 885 S.W.2d 641 (Tex.App.-Waco 1994, pet. ref'd), an opinion discussing the obligations of counsel and the appellate court under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Appellant's response further indicates that he is confusing the motion to withdraw his counsel have filed with the motion to withdraw that accompanies an Anders brief. Wilson v. State, 955 S.W.2d 693, 696-97 (Tex.App.-Waco 1997, no pet.).

Appellant also suggests in the response that the issue of ineffective assistance of counsel at trial should be raised on appeal, and speculates that counsel will be unwilling to raise the issue.

Our order denying appellant's first motion followed the analysis suggested by such cases as Glenn and Cormier, and concluded that it would not be in appellant's best interest, nor the interest of the State, for appellant to represent himself on appeal of his capital murder conviction. Neither appellant's second motion nor his response to counsel's motion to withdraw leads us to reach a different conclusion now. Appellant's speculations about the issues counsel will raise in a brief submitted on his behalf may or may not be warranted. If, as appellant suspects, counsel conclude that the appeal is frivolous and submit an Anders brief, appellant will have the opportunity to respond to the brief. Wilson, 955 S.W.2d at 696-97. Nor do we see any basis at this point for speculation that counsel will fail to raise on appeal any arguable issue by which appellant might be entitled to relief.

We note also that appellant has experienced a pattern of ambivalence about his counsel during the course of this case. The appellate record reflects more than one occasion on which appellant expressed dissatisfaction with counsel but, on questioning by the trial court, indicated that he wanted counsel to continue to represent him.

For these reasons, we continue to be of the opinion that the interests of appellant and the State are best served in this case by counsel's continued representation of appellant.

The motion to withdraw filed by counsel states that counsel do not want to represent appellant against his wishes, and points out that the rules of professional conduct may prohibit their continued representation of appellant unless ordered to do so by a court. Tex. Disciplinary R. Prof'l Conduct 1.15(a)(3) and (c), reprinted in Tex. Gov't Code Ann., tit. 2 subtit. G app. A (Vernon1998) (Tex. State Bar R. art. X, § 9). In the present posture of this case, and in view of our denial of appellant's motion, we will deny the motion to withdraw and direct counsel to continue their representation.

Appellant's Second Motion to Dismiss Counsel on Appeal and Proceed Pro Se on Appeal and counsel's Motion to Withdraw as Counsel are denied. Counsel's Third Motion for Extension of Time to File Appellant's Brief is granted. The clerk's and reporter's records having been filed, appellant's brief is due February 2, 2004. Absent exceptional circumstances, no further extensions will be granted.

Per Curiam

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