                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-15-00091-CR
                                    No. 07-15-00106-CR
                                    No. 07-15-00107-CR


                         EX PARTE DANIEL LEE AINSWORTH

                       On Appeal from the County Court at Law No. 1
                                   Potter County, Texas
                         Trial Court Nos. 141066, 141094, 141118;
                        Honorable W. F. (Corky) Roberts, Presiding

                                      July 15, 2015

                    ORDER OF ABATEMENT AND REMAND
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       At a February 3, 2015 hearing, appellant Daniel Lee Ainsworth sought pretrial

habeas corpus relief in trial court case numbers 141066 (terroristic threat, family

violence); 141094 (assault (domestic violence)); and 141118 (interference with

emergency telephone call). The court denied the requested habeas relief. Appellant

expressed a desire to represent himself on appeal of the court’s denial of habeas relief,

and filed, pro se, notice of appeal of each order.
       The three cases proceeded to a bench trial on April 27, 2015, and in each case

appellant was convicted. The court sentenced appellant to a term of confinement in the

county jail and a fine. Brooks Barfield, Jr. was appointed to represent appellant on

direct appeal in each case and filed notices of appeal. Appellant’s three direct appeals

are now pending.


       Appellant’s brief in the three pretrial habeas appeals was due for filing on or

before June 29, 2015. No brief was filed, however, and appellant has not moved for

additional time.


       The Sixth Amendment right to self-representation at trial does not extend to the

appeal stage, nor does the Texas constitution provide such a right on appeal. Martinez

v. California, 528 U.S. 152, 163, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000); Hadnot v.

State, 14 S.W.3d 348, 350 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“No Texas

court has recognized a state constitutional right to self representation on direct appeal”).


       As do other Texas courts, we review a request for self-representation in a

criminal appeal on a case-by-case basis that considers the best interest of the

appellant, the State, and the administration of justice. Bibbs v. State, No. 07-10-0300-

CR, 2011 Tex. App. Lexis 8426, at *2-3 (Tex. App.—Amarillo Oct. 21, 2011) (order of

abatement and remand); Cormier v. State, 85 S.W.3d 496, 498 (Tex. App.—Houston

[1st Dist.] 2002, no pet.). An appellant cannot use his desire for self-representation as a

means of manipulating or obstructing the orderly procedure of the court or interfering

with the fair administration of justice. Martinez v. State, 163 S.W.3d 88, 90 (Tex. App.—




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Amarillo 2006, order) (disposition on merits at 163 S.W.3d 92 (Tex. App.—Amarillo

2005, no pet.)).


       Appellant is now a party to six pending appellate cases in this Court. In the three

pretrial habeas appeals, he appears pro se and in the three related merits appeals he

has court-appointed counsel. As noted, his appellate brief in the cases in which he

represents himself are past due.       Given the complexity of this environment and its

potential for confusion, we abate the three pretrial habeas appeals and remand the

cases to the trial court for further proceedings. On remand, the trial court shall use

whatever means it finds necessary, which may include noticing and conducting a

hearing, to determine the following:


       1.     although we assume the trial court has determined appellant is
              unable to afford the cost of counsel, whether appellant is indigent
              and entitled to appointed counsel on appeal;

       2.     whether appellant still desires to represent himself in the three
              pretrial habeas appeals;

       3.     if appellant wishes to represent himself, whether appellant’s
              decision to do so is competently and intelligently made, including
              whether appellant is aware of the dangers and disadvantages of
              self-representation on appeal, see Hubbard v. State, 739 S.W.2d
              341, 345 (Tex. Crim. App. 1987); and

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

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

counsel and if the court determines that appellant does not now desire to represent

himself on appeal, OR determines that his doing so is not in the best interest of the

appellant, the State and the administration of justice, the trial court shall appoint counsel


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for appellant. As noted, Mr. Barfield already represents appellant on direct appeal.

Whether the court appoints Mr. Barfield or another attorney is a matter wholly for its

determination.   In any event, the court shall cause the name, address, telephone

number, fax number, United States Postal Service address, e-mail address, and state

bar number of the appointed attorney to be provided to this Court.


       The   court   shall   issue   findings       and   recommendations   expressing   its

determinations on the issues listed above. In addition, if the court does not appoint

counsel for appellant but instead recommends that this Court permit appellant to

represent himself on appeal, it shall determine, and express as a finding, when this

Court reasonably can expect to receive appellate briefs from appellant.


       If the court recommends that we permit appellant to represent himself on appeal,

we will review that recommendation and issue further orders on reinstatement of the

appeals.


       The trial court shall also cause to be developed 1) a supplemental clerk’s record

to be filed in each of the pretrial habeas appeals containing the findings,

recommendations and any orders the court signs, and 2) a supplemental reporter’s

record transcribing the evidence and argument presented at any hearing held. The

supplemental clerk’s record and reporter’s record, if any, shall be filed by the trial court

with the clerk of this court on or before August 17, 2015, unless additional time is

requested.




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       Because we have abated the appeals, appellant need not and shall not file an

appellate brief in any of the pretrial habeas appeals until further order of the Court.


       It is so ordered.


                                                  Per Curiam




Do not publish.




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