Michael Gomez v. State ( 2006 )

NO. 07-05-0460-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 28, 2006
______________________________
MICHAEL GOMEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 04-10-5815; HONORABLE HAROLD PHELAN, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant, Michael Gomez, seeks removal of his court appointed appellate attorney
and requests self-representation on appeal. We abate and remand for further
proceedings.
Background
Appellant was appointed an attorney following his conviction for murder and
sentence of 40 years confinement in the Institutional Division of the Texas Department of
Criminal Justice. Initially, appellant’s brief was due on May 11, 2006. Appellant’s court
appointed attorney filed two motions for extension of the time to file appellant’s brief. This
court granted these motions, making appellant’s brief due by July 21.
By letter dated July 5, appellant informed his court appointed counsel of his desire
to proceed pro se and requested counsel file an Anders brief. See Anders v. California,
386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Gainous v. State, 436
S.W.2d 137, 138 (Tex.Crim.App. 1969). Instead, appellant’s counsel filed a third motion
to extend the time for filing of appellant’s brief and, subsequently, timely filed appellant’s
brief on August 7. On the same date, appellant sent his counsel a second letter informing
counsel that he was “terminated” and that counsel was instructed to file an Anders brief so
that appellant would be entitled to a free record and the opportunity to file a pro se brief.
Upon receipt of appellant’s August 7th letter, appointed counsel filed a motion to withdraw
citing a potential conflict of interest precluding his continued representation of appellant.
An accused has the right to assistance of counsel in trial and appellate proceedings.
See Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963);
Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex.Crim.App.1992). Further, Texas courts of
appeals have concluded that an appellant either has a constitutional right to self-
representation or, at minimum, has reviewed an appellant’s request for self-representation
on a case-by-case basis. See Sickles v. State, 170 S.W.3d 298, 299 (Tex.App.–Waco
2005, order) (appellant has statutory right to self-representation on appeal); Martinez v.
State, 163 S.W.3d 88, 89 (Tex.App.–Amarillo 2004, order) disp. on merits, 163 S.W.3d 92
(Tex.App.–Amarillo 2005, no pet.); Crawford v. State, 136 S.W.3d 417, 418
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(Tex.App.–Corpus Christi 2004, no pet.) (requests for self-representation reviewed on a
case-by-case basis); Cormier v. State, 85 S.W.3d 496, 498 (Tex.App.–Houston [1st Dist.]
2002, no pet); Massingill v. State, 14 S.W.3d 380, 381-382 (Tex.App.–Houston [14th Dist.]
2000, no pet.). But an appellant is not entitled to hybrid representation on appeal.
Martinez, 163 S.W.3d at 89 (citing Rudd v. State, 616 S.W.2d 623, 625 (Tex.Crim.App.
[Panel Op.] 1981). If problems with counsel arise, it is incumbent upon appellant to inform
the court in a timely manner. See Hubbard v. State, 739 S.W.2d 341, 344 (Tex.Crim.App.
1987); Martinez, 163 S.W.3d at 90. In other words, an appellant cannot use his desire for
self-representation or any friction existing between himself and appointed counsel as a
means of manipulating or obstructing the orderly procedure of the court or interfering with
the fair administration of justice. Martinez, 163 S.W.3d at 90.
In the present case, appellant informed his court appointed counsel and this court
of his desire for self-representation on two occasions prior to counsel’s filing of appellant’s
brief. Although appointed counsel has acted timely and has raised two issues in the filed
brief, appellant has expressed his distrust of court appointed attorneys and his desire to
represent himself with the assistance of others within the prison system. Appellant does
not appear to be attempting to obstruct court procedure or interfere with the fair
administration of justice, but appears to be expressing a true desire for self-representation.
Consequently, we abate this appeal and remand the matter to the trial court for
further proceedings. Upon remand, the trial court shall determine the following:
1. whether appellant desires to prosecute the appeal;
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2. whether circumstances, if any, warrant the removal of current counsel;
3. whether circumstances, if any, warrant appointment of new counsel;
4. whether appellant asks to waive appointed counsel and represent
himself pro se;
5. If appellant opts to represent himself, whether appellant’s decision is
competently and intelligently made, including whether appellant is
aware of the dangers and disadvantages of self-representation, see
Hubbard, 739 S.W.2d at 345; and
6. if appellant wishes to proceed pro se, whether allowing him to do so
is in his best interests.
We further direct the trial court to issue findings of fact and conclusions of law
addressing the foregoing subjects. Should the trial court determine that appellant’s
circumstances warrant substitution of counsel, then new counsel shall be appointed and
the name, address, telephone number, and state bar number of said counsel shall be
included in the findings of fact. Additionally, the trial court may hold hearings and enter
orders as the court deems necessary regarding the aforementioned issues and shall cause
its findings and conclusions and any orders entered to be included in a supplemental
clerk's record. A supplemental reporter’s record of any hearing held shall be transcribed.1
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Although, appellant is to participate in the abatement proceeding, this does not
necessarily mean that the appellant must personally appear before the trial court. See
Fewins v. State, 170 S.W.3d 293, 294 (Tex.App.–Waco 2005, no pet.) (trial court given the
option of fulfilling duties via teleconference or postal service).
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Finally, the trial court shall file the supplemental clerk's record and the supplemental
reporter's record with the Clerk of this Court by Tuesday, October 31, 2006.
Per Curiam
Do not publish.
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