Ex Parte Daniel Lee Ainsworth ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00091-CR
No. 07-15-00106-CR
No. 07-15-00107-CR
EX PARTE DANIEL LEE AINSWORTH
On Appeal from the County Court at Law No. 1
Potter County, Texas
Trial Court Nos. 141066, 141094, 141118;
Honorable W. F. (Corky) Roberts, Presiding
July 15, 2015
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
At a February 3, 2015 hearing, appellant Daniel Lee Ainsworth sought pretrial
habeas corpus relief in trial court case numbers 141066 (terroristic threat, family
violence); 141094 (assault (domestic violence)); and 141118 (interference with
emergency telephone call). The court denied the requested habeas relief. Appellant
expressed a desire to represent himself on appeal of the court’s denial of habeas relief,
and filed, pro se, notice of appeal of each order.
The three cases proceeded to a bench trial on April 27, 2015, and in each case
appellant was convicted. The court sentenced appellant to a term of confinement in the
county jail and a fine. Brooks Barfield, Jr. was appointed to represent appellant on
direct appeal in each case and filed notices of appeal. Appellant’s three direct appeals
are now pending.
Appellant’s brief in the three pretrial habeas appeals was due for filing on or
before June 29, 2015. No brief was filed, however, and appellant has not moved for
additional time.
The Sixth Amendment right to self-representation at trial does not extend to the
appeal stage, nor does the Texas constitution provide such a right on appeal. Martinez
v. California, 528 U.S. 152, 163, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000); 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”).
As do other Texas courts, we review a request for self-representation in a
criminal appeal on a case-by-case basis that considers the best interest of the
appellant, the State, and the administration of justice. Bibbs v. State, No. 07-10-0300-
CR, 2011 Tex. App. Lexis 8426, at *2-3 (Tex. App.—Amarillo Oct. 21, 2011) (order of
abatement and remand); Cormier v. State, 85 S.W.3d 496, 498 (Tex. App.—Houston
[1st Dist.] 2002, no pet.). An appellant cannot use his desire for self-representation as a
means of manipulating or obstructing the orderly procedure of the court or interfering
with the fair administration of justice. Martinez v. State, 163 S.W.3d 88, 90 (Tex. App.—
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Amarillo 2006, order) (disposition on merits at 163 S.W.3d 92 (Tex. App.—Amarillo
2005, no pet.)).
Appellant is now a party to six pending appellate cases in this Court. In the three
pretrial habeas appeals, he appears pro se and in the three related merits appeals he
has court-appointed counsel. As noted, his appellate brief in the cases in which he
represents himself are past due. Given the complexity of this environment and its
potential for confusion, we abate the three pretrial habeas appeals and remand the
cases to the trial court for further proceedings. On remand, the trial court shall use
whatever means it finds necessary, which may include noticing and conducting a
hearing, to determine the following:
1. although we assume the trial court has determined appellant is
unable to afford the cost of counsel, whether appellant is indigent
and entitled to appointed counsel on appeal;
2. whether appellant still desires to represent himself in the three
pretrial habeas appeals;
3. if appellant wishes to represent himself, whether appellant’s
decision to do so is competently and intelligently made, including
whether appellant is aware of the dangers and disadvantages of
self-representation on appeal, see Hubbard v. State, 739 S.W.2d
341, 345 (Tex. Crim. App. 1987); and
4. if appellant wishes to represent himself, whether allowing him to do
so is in his best interest, in the State’s best interest, and in
furtherance of the proper administration of justice.
If the trial court determines that appellant is indigent and entitled to appointed
counsel and if the court determines that appellant does not now desire to represent
himself on appeal, OR determines that his doing so is not in the best interest of the
appellant, the State and the administration of justice, the trial court shall appoint counsel
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for appellant. As noted, Mr. Barfield already represents appellant on direct appeal.
Whether the court appoints Mr. Barfield or another attorney is a matter wholly for its
determination. In any event, the court shall cause the name, address, telephone
number, fax number, United States Postal Service address, e-mail address, and state
bar number of the appointed attorney to be provided to this Court.
The court shall issue findings and recommendations expressing its
determinations on the issues listed above. In addition, if the court does not appoint
counsel for appellant but instead recommends that this Court permit appellant to
represent himself on appeal, it shall determine, and express as a finding, when this
Court reasonably can expect to receive appellate briefs from appellant.
If the court recommends that we permit appellant to represent himself on appeal,
we will review that recommendation and issue further orders on reinstatement of the
appeals.
The trial court shall also cause to be developed 1) a supplemental clerk’s record
to be filed in each of the pretrial habeas appeals containing the findings,
recommendations and any orders the court signs, and 2) a supplemental reporter’s
record transcribing the evidence and argument presented at any hearing held. The
supplemental clerk’s record and reporter’s record, if any, shall be filed by the trial court
with the clerk of this court on or before August 17, 2015, unless additional time is
requested.
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Because we have abated the appeals, appellant need not and shall not file an
appellate brief in any of the pretrial habeas appeals until further order of the Court.
It is so ordered.
Per Curiam
Do not publish.
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