in the Interest of K.T., a Child ( 2003 )

In the Interest of KT a child

  IN THE

TENTH COURT OF APPEALS

No. 10-03-011-CV

IN THE INTEREST OF K.T., A CHILD

From the 18th District Court

Johnson County, Texas

Trial Court # D199906044

                                                                                                                                                                                                                         

MEMORANDUM OPINION

                                                                                                               Â

      Julie Louise Thomas appealed an order granting her former husband Steven G. Thomas’s motion to modify the child visitation provisions of their divorce decree. She has now filed a motion to dismiss her appeal.

      Rule of Appellate Procedure 42.1(a)(2) provides:

(a) The appellate court may dispose of an appeal as follows:

(1) On Motion of Appellant. In accordance with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless such disposition would prevent a party from seeking relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2).

      Appellant’s dismissal motion complies with the requirements of the appellate rules. Appellee has not filed a response. Accordingly, we dismiss the appeal with costs to be taxed against the party incurring same.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed February 26, 2003

[CV06]

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APPENDIX A

This Appendix is from Sickles v. State, No. 10-04-00258-CR (Tex. App.—Waco June 15, 2005, order) (not designated for publication)

 

ORDER

 

          Sickles’s counsel has filed in this Court a motion to withdraw as counsel.  Counsel attached 1) a letter from Sickles requesting his withdrawal and 2) a copy of a motion for self representation signed by Sickles.  Sickles also filed a motion to represent himself on appeal.  Both motions are denied.

          Sickles does not have a constitutional right to represent himself on appeal.  See Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 163-64, 145 L. Ed. 2d 597, 120 S. Ct. 684 (2000).  At least two courts of appeals have determined that there is no right for an appellant in a criminal case to represent himself on appeal.  See Cormier v. State, 85 S.W.3d 496, 498 (Tex. App.—Houston [1st Dist.] 2002, order); see also Crawford v. State, 136 S.W.3d 417, 418 (Tex. App.—Corpus Christi 2004, order).  In determining whether to grant Sickles’s request for self-representation, we consider whether the interests of Sickles, the State, and the administration of justice would be best served by Sickles’s self-representation.  Id. 

          Counsel represented in correspondence that he has done a considerable amount of work on this appeal, but does not want to jeopardize Sickles’s right to represent himself on appeal.  We have reviewed the legal materials filed by Sickles and determine that it is in the best interest of Sickles, the State, and the administration of justice if Sickles continues this appeal represented by counsel. 

          Accordingly, we deny counsel’s request to withdraw and Sickles’s motion to represent himself.  This appeal will proceed with Sickles being represented by counsel.  Sickles’s brief is due 25 days from the date of this order.

 

 

          * “(Justice Vance concurs with a note.  This order does not fully explain how it discounts Court of Criminal Appeals authority, cited by counsel, saying that a defendant has the right to represent himself on appeal.  See Webb v. State, 533 S.W.2d 780, 784-85 (Tex. Crim. App. 1976) (“We hold here that the right of an accused to reject the services of counsel and instead represent himself extends beyond trial into the appellate process.  . . .  Regardless of the point in the appellate process at which an appellant chooses to assert his right of self-representation, he will be required to comply with all relevant rules of appellate procedure set forth in our Code of Criminal Procedure.”); Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987) (“[W]e now hold that appellant timely asserted his right of self-representation.   . . .   We now remand the appeal to the Court of Appeals and instruct them to direct the trial court to hold  a hearing during which the trial court must make the appellant aware of the dangers and disadvantages of self-representation and the trial court must develop evidence as to whether appellant's apparent decision to relinquish benefits associated with counsel and to proceed pro se is knowingly and intelligently made.”).  Cormier notes that these two cases were decided by the Court of Criminal Appeals before the Martinez case, decided by the U.S. Supreme Court in 2000, said that the states are clearly within their discretion to conclude that the government's interests in the fair and efficient administration of justice outweigh the invasion of the appellant's interest in self-representation.  But Martinez has been cited by the Court of Criminal Appeals in a footnote.  Scheanette v. State, 144 S.W.3d 503, 510 n.2 (Tex. Crim. App. 2004) (“neither does [Appellant] have a constitutional right to represent himself on direct appeal.”).  Crawford says: “Therefore, we review requests for self-representation in appeals from criminal convictions on a case-by-case basis, considering the best interests of the appellant, the State, and the administration of justice.”  Applying those factors, I concur in the order.)”

 

 

END OF APPENDIX A