Juan Martinez, III v. State

IN THE
TENTH COURT OF APPEALS
No. 10-13-00107-CR
JUAN MARTINEZ, III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-1034-C1
ABATEMENT ORDER
In this case, appellant, Juan Martinez III, was charged and convicted with
robbery and harassment of a public servant—both enhanced by appellant’s prior
conviction for indecency with a child by exposure. On July 10, 2013, we received
appellant’s pro se motion, which we construe as a “Motion for Self-Representation.” In
this motion, appellant seeks to waive his right to counsel pursuant to Article 1.051 of the
Texas Code of Criminal Procedure and requests that he be allowed to prosecute his own
appeal. See TEX. CODE CRIM. PROC. ANN. art. 1.051(f)-(g) (West Supp. 2012).
The United States Supreme Court has held that there is no constitutional right to
represent oneself on appeal. Martinez v. Court of Appeal of California, Fourth Appellate
District, 528 U.S. 152, 163, 120 S. Ct. 684, 692, 145 L. Ed. 2d 597 (2000); see Fewins v. State,
170 S.W.3d 293, 295 (Tex. App.—Waco 2005, order) (clarifying that “article I, section 10 of
the Texas Constitution does not confer the right of self-representation afforded by the
Sixth Amendment under Faretta.” (emphasis in original)). However, a criminal
defendant does have a statutory right to self-representation on appeal. See TEX. CODE
CRIM. PROC. ANN. art. 1.051(d)(1); see also Sickles v. State, 170 S.W.3d 298, 299 (Tex.
App.—Waco 2005, order). But the right to represent oneself on appeal cannot be used
as a tactic to delay the disposition of a proceeding or to create an issue when there is
none. See Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987); Webb v. State, 533
S.W.2d 780, 786 (Tex. Crim. App. 1976); see also Faretta v. California, 422 U.S. 806, 834
n.46, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (“The right of self-representation is not
a license to abuse the dignity of the courtroom. Neither is it a license not to comply
with relevant rules of procedural and substantive law. Thus, whatever else may or may
not be open to him on appeal, a defendant who elects to represent himself cannot
thereafter complain that the quality of his own defense amounted to a denial of
‘effective assistance of counsel’”).
On the other hand, subsection f of article 1.051 of the Texas Code of Criminal
Procedure authorizes a criminal defendant to waive his right to appointed counsel, so
long as the waiver is made “voluntarily and intelligently” and “in writing.” TEX. CODE
CRIM. PROC. ANN. art. 1.051(f). Once the right to self-representation is asserted, the trial
Martinez v. State Page 2
judge must inform the defendant about “the dangers and disadvantages of self-
representation,” so that the record will establish that he knows what he is doing and his
choice is made with eyes open. Id. art. 1.051(g). If the court determines that the
criminal defendant has voluntarily and intelligently waived his right to counsel, the
court shall require him to execute a written waiver of counsel which substantially
complies with article 1.051(g). Id.
In the instant case, the trial court appointed Charles W. McDonald to represent
appellant on appeal. And as mentioned above, appellant has filed a motion in this
Court asserting his right to self-representation.1 Accordingly, we abate and remand this
cause for the trial court to administer the appropriate admonishments under subsection
g of article 1.051 of the Texas Code of Criminal Procedure and to determine whether
appellant competently, intelligently, and voluntarily waives his right to counsel.2 See
TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
1 We note that Texas Rule of Appellate Procedure 9.5 requires that, “[a]t or before the time of a
document’s filing, the filing party must serve a copy on all parties to the proceeding” and that the
“document presented for filing must contain a proof of service in the form of either an acknowledgement
of service by the person served or a certificate of service.” TEX. R. APP. P. 9.5(a), (d). Moreover, a
certificate of service must be signed by the person who made the service and must state the date and
manner of service, the name and address of each person served, and if the person served is a party’s
attorney, the name of the party represented by that attorney. See id. at R. 9.5(e). Appellant did not
indicate in his motion that he served the State or his appointed attorney with a copy of this motion;
accordingly, we conclude that appellant’s motion does not comply with Texas Rule of Appellate
Procedure 9.5. See id. at R. 9.5. Appellant is warned that this Court will not effectuate service on other
parties to this appeal and that courts have held that parties advancing pro se are held to the same
standards as licensed attorneys. See Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988) (noting
that pro se litigants are held to the same standards as a licensed attorney and are not granted any special
consideration).
2 Further, other than appellant’s request to represent himself, we abate this matter without regard
to the purported grounds contained in appellant’s motion.
Martinez v. State Page 3
The trial court shall conduct the hearing within twenty-eight (28) days after the
date of this order. The trial court clerk and court reporter shall file supplemental
records within forty-two (42) days after the date of this order.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed August 1, 2013
Do not publish
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