in Re Mark David Simmons

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-12-00464-CV

In re Mark David Simmons

ORIGINAL PROCEEDING FROM HAYS COUNTY

M E M O R A N D U M O P I N I O N

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.

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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.