Jetmir Nokshiqi v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-21-00188-CR
JETMIR NOKSHIQI,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No 2
McLennan County, Texas
Trial Court No. 2018-2684-CR2
ABATEMENT ORDER
After a jury found Appellant Jetmir Nokshiqi guilty of the misdemeanor offense
of assault, the trial court granted Nokshiqi’s request for community supervision.
Nokshiqi then filed a pro se notice of appeal.
Nokshiqi was represented by retained counsel in the trial court. The record
contains no information regarding Nokshiqi’s financial status or whether he is entitled
to appointed counsel on appeal. Nokshiqi has additionally not made a written request
for the reporter’s record.
Having reviewed the status of this appeal, we abate this cause to the trial court to
conduct a hearing to determine whether Nokshiqi wishes to continue this appeal and, if
so, whether he is entitled to appointed appellate counsel. The trial court should also
inform Appellant that Appellant will be required to make arrangements for the
reporter’s record if Appellant elects to continue this appeal pro se.
An indigent criminal defendant has a constitutional right to appointed counsel in
a first appeal of right. Scott v. State, 80 S.W.3d 184, 197 (Tex. App.—Waco 2002, pet.
ref’d) (citing Douglas v. California, 372 U.S. 353, 356–57, 83 S.Ct. 814, 816–17, 9 L.Ed.2d
811 (1963)). The appointment of counsel for an indigent defendant in a criminal case is
under the sole authority of the trial court. See Enriquez v. State, 999 S.W.2d 906, 907–08
(Tex. App.—Waco 1999, order) (per curiam); TEX. CODE CRIM. PROC. ANN. art. 26.04(a);
cf. Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006). A defendant does not have
the right to his choice of appointed counsel, and unless he waives his right to counsel
and chooses to represent himself, or shows adequate reason for appointment of new
counsel, he must accept the counsel appointed by the trial court. Rodriguez v. State, 491
S.W.3d 18, 33 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
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) (per curiam) (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” (footnote omitted)). However, a
Nokshiqi v. State Page 2
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) (per curiam).
Subsection f of article 1.051 of the 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 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 that his choice is made with
eyes open. See 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.The trial court shall conduct the hearing within 21 days of the date of this Order.
The trial court clerk and court reporter shall file supplemental records within 35 days of
the date of this Order.
PER CURIAM
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Order issued and filed November 3, 2021
RWR
Nokshiqi v. State Page 3