Anthony Yuma Duncan v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 19, 2023
• Docket: 05-23-00041-CR
• Status: Published

Opinion

Order entered January 19, 2023

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-23-00041-CR

ANTHONY YUMA DUNCAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F20-75167-P

ORDER

Before the Court is a letter filed January 12, 2023, from appellant’s

appointed counsel, Allan Fishburn, informing the Court that the trial court notified

him “that Appellant does not wish to be represented by Counsel and would be

proceeding pro-se.” Mr. Fishburn asks that we remove him as counsel of record.

Withdrawal from representation requires the filing of a motion to withdraw that

complies with Rule of Appellate Procedure 6.5. See TEX. R. APP. P. 6.5. Mr.

Fishburn’s letter does not comply with that rule. It appears appellant has demonstrated an intent to proceed pro se because on

January 10, 2023, appellant filed an amended notice of appeal stating he was “self-

represented.” Mr. Fishburn’s letter presents no grounds for permitting appellant to

proceed pro se, and appellant has made no motion with this Court to proceed pro

se. Accordingly, we DENY Mr. Fishburn’s request to withdraw from representing

appellant.

Appellant does not have a constitutional right to self-representation on

appeal. Martinez v. Ct. of Appeal of Cal., 528 U.S. 152, 163 (2000); Scheanette v.

State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004). However, appellate

courts have discretion to determine whether to permit an appellant to represent

himself on appeal. McCray v. State, No. 07-19-00430-CR, 2020 WL 994685, at *1

(Tex. App.—Amarillo Feb. 27, 2020, no pet.). Our exercise of that discretion

depends on a case-by-case analysis of the best interest of the appellant, the State,

and the administration of justice. Id.

To assist us in that determination, we ORDER the trial court to conduct a

hearing to determine:

1. whether appellant still desires to prosecute the appeal; 2. whether appellant is indigent and entitled to the appointment of appellate counsel; 3. whether appellant desires to represent himself on appeal; 4. if appellant desires to represent himself, whether his decision to do so is competently and intelligently made, including whether he is aware of the dangers and disadvantages of self-representation on appeal; and

5. if appellant desires to represent himself, whether allowing him to do so is in his best interest, in the best interest of the State, and in furtherance of the proper administration of justice.

If the trial court determines appellant is entitled to appointed counsel and that

allowing appellant to represent himself on appeal is not in his best interest, in the

best interest of the State, and in furtherance of the proper administration of justice,

the trial court is ORDERED to take such measures as may be necessary to assure

effective representation, which may include appointment of new counsel. If the

trial court cannot obtain appellant’s presence at the hearing, the trial court shall

conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708

(Tex. App.–Corpus Christi 1987, no pet.) (per curiam).

We ORDER the trial court to transmit a record of the proceedings, which

shall include written findings and recommendations, to this Court within THIRTY

DAYS of the date of this order.

The clerk’s record and the reporter’s record are due FEBRUARY 12, 2023.

We DIRECT the Clerk to send copies of this order to the Honorable Raquel

Rocky Jones, 203rd Judicial District Court; Felicia Pitre, Dallas County District

Clerk; Lisabeth Kellett, Court Reporter; Allan Fishburn; the appellate division of the Dallas County District Attorney; and Anthony Duncan, 1017 Paintbrush St.,

Mesquite, TX 75149.

This appeal is ABATED to allow the trial court to comply with the above

order. The appeal shall be reinstated when the record of the proceedings

containing the trial court’s findings is transmitted to this Court or when the Court

finds it appropriate to do so.

/s/ DENNISE GARCIA JUSTICE