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in Re Mark David Simmons ( 2012 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00464-CV
In re Mark David Simmons
ORIGINAL PROCEEDING FROM HAYS COUNTY
MEMORANDUM OPINION
Relator, who is represented by appointed counsel in the underlying appeal from
multiple criminal convictions, has filed a petition for writ of mandamus, complaining that the trial
court clerk has not provided him with a copy of the record so that relator can represent himself on
appeal. Because an attorney has been appointed to represent relator on direct appeal and relator does
not have a constitutional right to self-representation, we deny the petition for writ of mandamus.
First, relator does not have a right to hybrid representation. Ex parte Taylor,
    36 S.W.3d 883
    , 887 (Tex. Crim App. 2001) (“Appellants are not allowed to have ‘hybrid representation’ on
appeal, in which an appellant and an attorney can present independent points to an appellate
court.”); see Marshall v. State,
    210 S.W.3d 618
    , 620 n.1 (Tex. Crim. App. 2006), cert. denied,
    552 U.S. 842 
    (2007) (court refused to address appellant’s pro se brief because appellant had no right
to hybrid representation); Patrick v. State,
    906 S.W.2d 481
    , 498 (Tex. Crim. App. 1995) (appellant’s
pro se supplemental brief presented nothing for review); Williams v. State, No. 03-09-00542-CR,
2011 Tex. App. LEXIS 1426, at *2 n.1 (Tex. App.—Austin Feb. 25, 2011, no pet.) (mem. op., not
designated for publication) (criminal defendant has no right to hybrid representation).
Further, there is no federal constitutional right to self-representation on direct
appeal. Martinez v. Court of Appeal of Cal. Fourth Appellate Dist.,
    528 U.S. 152
    , 163-64 (2000);
see Scheanette v. State,
    144 S.W.3d 503
    , 505 n.2 (Tex. Crim. App. 2004). Nor is there a state
constitutional right to self-representation on direct appeal. See Cormier v. State,
    85 S.W.3d 496
    ,
498 (Tex. App.—Houston [1st Dist.] 2002, order); Stafford v. State,
    63 S.W.3d 502
    , 506 (Tex.
App.—Texarkana 2001, order); Hadnot v. State,
    14 S.W.3d 348
    , 350 (Tex. App.—Houston [14th
Dist.] 2000, order); Cain v. State,
    976 S.W.2d 228
    , 235 (Tex. App.—San Antonio 1998, no pet.);
see also Williams, 2011 Tex. App. LEXIS 1426, at *2 n.1; In re Kuhn, No. 03-11-00570-CV, 2011
Tex. App. LEXIS 8655, at *3 (Tex. App.—Austin Oct. 28, 2011, orig. proc.).1
An attorney has been appointed to represent relator on appeal, and there is no right
to self-representation on direct appeal.2 We therefore deny relator’s petition for writ of mandamus.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton and Henson
Filed: July 24, 2012
1
Ex parte Davis, cited by relator, followed earlier cases by the court of criminal appeals that
extended the holding in Faretta v. California,
    422 U.S. 806
    , 807 (1975), to appeals.
    818 S.W.2d 64
    ,
66 (Tex. Crim. App. 1991). However, that extension was overruled by Martinez and its holding that
a criminal defendant does not have a federal right to represent himself on appeal. See Martinez v.
Court of Appeal of Cal. Fourth Appellate Dist.,
    528 U.S. 152
    , 162-63 (2000); Glenn v. State,
No. 03-03-00212-CR, 2003 Tex. App. LEXIS 7082, at *2 (Tex. App.—Austin Aug. 6, 2003, order).
2
The full record has not yet been filed in this Court, so relator’s petition, even if it had merit,
is premature.
2