William Frederick Petty, III v. State

• Court: Court of Appeals of Texas
• Decided: February 13, 2019
• Docket: 10-18-00243-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00243-CR

WILLIAM FREDERICK PETTY, III, Appellant v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Johnson County, Texas Trial Court No. DC-F201700241

ABATEMENT ORDER

William Frederick Petty, III, appellant, has filed a motion on his own behalf

entitled “Appellant Pro Se’s Motion to Abate His Appeal, Terminate Appointed

Appellant Counsel Don Bonner as of Jan 25th, 2019 and Proceed Pro Se, So That He may

File His Own Pro Se Appellant Brief in the Intrest [sic] of Justice Pursuant to His ‘Due

Process’ and ‘Faretta’ Rights to Self Representation, and Acquire the Complete Record

for a Fair Appeal” hereinafter referred to as the “Motion.”

Appellant’s Motion evidences a request that appellant be allowed to represent himself in this appeal. Currently appellant is represented by appointed counsel. The

Motion evidences a basic misunderstanding of the methodology to assert the right to self-

representation on appeal. Moreover the Motion evidences some erroneous views of the

rights to which an appellant is entitled during the course of the appeal even if he is acting

as his own counsel. But in this order, it is unnecessary for this Court to identify any issue

other than appellant has asserted a right to represent himself on appeal. Contrary to

appellant’s assertions, this is not a constitutional right but rather a statutory right in Texas

as this Court has previously recognized and held. See Martinez v. Court of Appeal of

California, 528 U.S. 152, 160-63, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000) (no constitutional

right to self-representation on appeal); Fewins v. State, 170 S.W.3d 293, 296 (Tex. App.—

Waco 2005, order) (statutory right to self-representation on appeal).

Moreover, appellant will no doubt be disappointed that he is not entitled in a

direct appeal to supplement the appellate record with evidence. While appellant may

assert his actual innocence, as argued in the Motion, and may find evidence not in the

appellate record to prove such, that argument and evidence is not relevant to this direct

appeal, but may be appropriate in a post-conviction writ of habeas corpus. This appeal

is limited to the issue of whether there was trial court error, properly preserved if

necessary, that occurred in the trial court proceeding, which caused appellant sufficient

harm to reverse the trial court’s judgment and remand for a new trial, or to reverse the

trial court’s judgment and acquit appellant of the crime for which he has been convicted.

On February 5, 2019, Appellant’s appointed attorney, Don Bonner, filed with this

Court a motion to withdraw as appellant’s counsel and a motion for extension of time to

Petty v. State Page 2 file appellant’s brief. In counsel’s motion to withdraw, he recites essentially the same

factual background as appellant in the Motion.

When an appellant is represented by appointed counsel, the trial court retains

jurisdiction to remove appointed counsel. The request to remove appointed counsel or

to withdraw as appointed counsel must be made to the trial court, not this Court. See

TEX. CODE CRIM. PROC. ANN. art. 26.04 (West 2009); Enriquez v. State, 999 S.W.2d 906, 907

(Tex. App.—Waco 1999, order). Although the trial court retains the jurisdiction over

appointed counsel until appointed counsel’s tasks are completed or appointed counsel is

removed, we note that appellant has requested other relief that is somewhat inter-related

to his request to be allowed to represent himself.

Accordingly, so that there is no subsequent argument about the scope of the trial

court’s authority to address all the relief that appellant has requested in the Motion, and

without regard to any allegations made in the Motion and without any finding in support

of any such allegations, the Court:

1. DISMISSES all relief requested in the Motion without prejudice to presenting appellant’s requests to the trial court. Appellant must file his requests with the trial court clerk within 14 days from the date of this Order;

2. DISMISSES counsel’s motion to withdraw without prejudice to presenting the request to the trial court;

3. DISMISSES counsel’s motion for extension of time to file appellant’s brief without prejudice and SUSPENDS the appellate timetable which will be reset when the appeal is reinstated; and

4. ABATES this appeal to the trial court to hold a hearing, within 28 days from the date appellant files his request, if any, with the trial court clerk, to determine whether appellant will be allowed to represent himself on

Petty v. State Page 3 appeal and to make rulings on appellant’s other requested relief as necessary or ancillary to the trial court’s ruling on the motion for self- representation.

The trial court clerk and court reporter are ordered to file supplemental records

within 14 days from the date of the abatement hearing.

PER CURIAM

Before Chief Justice Gray, and Justice Davis Motions dismissed Appeal abated Order issued and filed February 13, 2019

Petty v. State Page 4