Alanda Suzanne Fewins v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00189-CR

Alanda Suzanne Fewins,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 00-05-13320-BCCR

CONCURRING Opinion

          Everything after the first paragraph in the foregoing order is dicta.

OBITUARY

          The concept in the common law known as stare decisis, by which it is recognized that a court should follow its prior rulings, unless deciding a case under the narrow circumstances when a court decides to overrule its precedent, died in this district today after a lengthy illness.  On June 15, 2005, this Court issued a unanimous order contrary to the extensive discussion regarding pro se representation in its order in this case. Sickles v. State, No. 10-04-00258-CR (Tex. App.—Waco June 15, 2005, order)(not designated for publication) (attached Appendix A).  This prior holding was called to the Court’s attention, but it was ignored.  Further, in Sickles, id., the issue controlled the disposition of the order and, thus, was based on the merits of the issue.  In the majority’s order, we have no reason to believe that Fewins wants to represent herself and we should not engage in this extensive discussion when it is irrelevant to the disposition.

          If the extensive discussion had any relevance to the order of abatement, I would have to dissent.  But because an abatement to conduct a hearing to determine why no brief has been filed is what needs to happen, I concur. 

                                                                   TOM GRAY

                                                                   Chief Justice

Concurring opinion delivered and filed September 7, 2005

Publish

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

akes the Relator’s request that the Court compel that same relief by mandamus moot.  We cannot compel that which has already been done. If the request for relief is moot because the Respondent has already taken the action the Relator seeks to compel, the proper result in these original proceedings is dismissal. 

Chief Justice Gray also notes, in the alternative, that the trial court now has no jurisdiction to withdraw the dismissal orders.  The dismissal orders that underlie these five mandamus proceedings were signed by the trial court on June 17, 2008.  Those dismissals are now final judgments in those five proceedings.  We cannot give the trial court jurisdiction via these mandamus proceedings.  The only way the trial court can now be reinvested with jurisdiction in those five proceedings is a reversal of the final judgments of dismissal rendered in each of those proceedings in a direct appeal.  As discussed below, the direct appeal of the June 17, 2008 final judgments dismissing each of the five underlying proceedings has been filed and remains pending before this Court.  Accordingly, and without question, the Relator has an adequate remedy by direct appeal. 

Further, he notes, that while he agrees with the analysis of In re State, 65 S.W.3d 383 (Tex. App.—Tyler 2002, orig. proceeding) and Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821 (Tex. App.—San Antonio 1994, orig. proceeding), those proceedings are easily distinguished.  In State and Garcia, the administrative portion of the condemnation proceeding was ongoing, and the trial court was attempting to exercise control over and during the administrative process.  No final judgment had been rendered dismissing the proceeding.  Thus, the only way to obtain relief from the trial court’s interference in both of those proceedings was by mandamus.  In these proceedings, however, the trial court has rendered a final judgment of dismissal.  That judgment not only can be, but has been, directly and immediately appealed.  And while the Court relies on the argument that this mandamus proceeding will be a more timely review of the trial court’s judgment than a direct appeal, that is true only because it was given our immediate attention in derogation of other proceedings.  That argument also is no different for any proceeding that has been finally disposed of by the trial court.  If the appeals in these proceedings needed to be expedited because of the nature of the underlying dispute, they can be expedited.  But there is no justification, much less authority, for hurtling these proceedings to the front of the line because they are filed as a mandamus when a direct appeal is not only available but is actually currently pending.  And if appropriate, a motion to expedite the disposition of the appeals can be filed and considered. 

Finally, Chief Justice Gray notes that the trial court is expressly authorized by statute to consider a landowner’s motion to dismiss, and thus, the dismissal orders are not void as held by the majority.  Tex. Prop. Code Ann. § 21.019(c) (Vernon 2004); Cf. Footnote 2 Maj. Op. at pg. 4.  Relying on this section of the Property Code, this Court has previously considered and affirmed an award of attorneys fees made to the landowner after the condemnation proceeding was dismissed on motion of the landowner.  Falls County Water Control v. Haak, 220 S.W.3d 92 (Tex. App..—Waco 2007, no pet).  If, as the Court now holds, the trial court had no jurisdiction to consider the landowner’s motion to dismiss, the order granting the landowner’s motion to dismiss in Haak would have been void; and likewise, the award of attorneys fees and expenses would have been improper.  Therefore, if the petitions should not be dismissed as moot because the trial court has already taken the action sought to be compelled as discussed above, then because the dismissal order is not void or because there is an adequate remedy by direct appeal, the petitions for writ of mandamus should be denied.  If Chief Justice Gray is correct in either of these regards, the procedural anomalies created by the parties and compounded by the Court will plague the parties and may result in further proceedings in the underlying cases which result in void judgments. In no event should the petitions for writ of mandamus be granted, conditionally or otherwise.  Therefore, Chief Justice Gray respectfully dissents.”)

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[1] We have fifteen pending cases involving the same parties and issues.

[2] The trial court cause numbers for the second set of condemnation proceedings are 08-03-18048-CV, 08-03-18049-CV, 08-03-18050-CV, 08-03-18051-CV, and 08-03-18052-CV.