                                    NO. 07-04-0305-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   DECEMBER 3, 2004

                          ______________________________


                                 EDWARD L. MARTINEZ,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                                 Appellee

                        _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2004-405,843; HON.CECIL G. PURYEAR, PRESIDING

                          _______________________________

                            ON ABATEMENT AND REMAND

                          _______________________________


Before QUINN, REAVIS and CAMPBELL, JJ.

       Edward L. Martinez, appellant, filed with this court various documents involving his

appellate counsel and the appellate brief filed by him. In them, he contends that his

counsel, Ronald Delarose, “plain out lie[d]” in and “omitted facts from” the brief as well as

denied him effective assistance of counsel “on first appeal.” He also posits that his attorney
failed to raise issues “that he should have brought up.” Along with these allegations appear

requests that Delarose “withdraw or abate the appeal,” that Delarose amend the brief, that

the clerk of this court send appellant a copy “of my transcripts,” and that Delarose be

denied the authority to represent him on any petition for discretionary review which may

need to be filed.

        It is clear that one has the right to counsel on appeal, though he does not have the

right to appointed counsel of his own choosing. Camacho v. State, 65 S.W.3d 107, 109

(Tex. App.–Amarillo 2000, no pet.). Similarly certain is that an appellant is not entitled to

hybrid representation on appeal. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Cr. App. [Panel

Op.] 1981). He may have counsel represent him. And, while a panel of this court has held

that an appellant has no right to represent himself on appeal, e.g., Felder v. State, No. 07-

03-0260-CR (Tex. App.–Amarillo, October 17, 2003, no pet.) (not designated for

publication), as have other intermediate appellate courts, e.g., Cormier v.State, 85 S.W.3d

496, 498 (Tex. App.–Houston [1st Dist.] 2002, no pet.) (and the cases cited therein), the

Texas Court of Criminal Appeals held in Webb v. State, 533 S.W.2d 780 (Tex. Crim. App.

1976) that such a right exists.1 Thus, question remains as to whether he has a right to


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           Various of the intermediate courts that have rejected Webb did so on the basis that the decision was
founded upon the United States Supreme Court decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562 (1975) (dealing w ith the right to self-representation at trial, not appeal). And, because the
United States Supreme Court later said in Martinez v. Court of Appeal, 528 U.S. 152, 120 S.Ct. 684, 145
L.Ed.2d 597 (2000) that the Sixth Amendment to the United States Constitution does not grant one the right
to self-representation on appeal, then the reliance placed on Fare tta by the court in Webb was misplaced.
See, e.g. Co rmie r v.Sta te, 85 S.W.3d 496, 498 n.2 (Tex. A pp.– Ho uston [1 st Dist.] 2002 , no pet.); acco rd, Glenn
v. State , No. 03-03-00212-CR, 2003 LEX IS 708 2 (Te x. Ap p.–A ustin A ug. 6, 2003, no pet. h.). Yet, the
Supreme Court in Martinez took care to note that its decision did not preclude the differing states from
recognizing such a right u nde r their ow n law s. Martinez, 528 U.S. at 163, 120 S.Ct. at 692, 145 L.Ed.2d 597.
Mo reover, the Court of Criminal Appeals in Webb plainly held that “the right of an acc used to reject the
services of counsel and instead represent himself extends beyond trial into the app ellate p roce ss.” Webb v.
State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). And though it mentioned Fare tta in arriving at its holding,
it did not expressly sta te that either Fare tta or the Sixth Amendment afforded an appellant the righ t to self-

                                                          2
represent himself.

        Nonetheless, if problems with counsel arise it is encumbent upon the appellant to

inform the court in a timely manner. Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim.

App. 1987). In other words, he cannot use his desire for self-representation or any friction

between himself and appointed counsel as a means of manipulating or obstruct the orderly

procedure of the court or interfering with the fair administration of justice. Id.

        Here, and like the situation in Hubbard, appellant informed us of his concerns with

Delarose after the latter filed the appellant’s brief but before the State replied to it. So too

were the concerns broached within six months from the date the appeal was perfected and

before the appeal was ripe for submission and resolution. Given this, we cannot say that

appellant acted untimely. Moreover, he asked not only that his counsel withdraw but also

that he (appellant) be given a copy of the transcripts and that Delarose be precluded from

representing him in any subsequent appeal. So too was it alleged that counsel failed to

raise issues appellant thought appropriate and misrepresented matters in the brief. Though

not clear and unequivocal, these allegations could be interpreted as effort by appellant to

act pro se. Or, they could be viewed as indication that the attorney/client relationship has



representation. Instead, the court said that “[i]t has long been held in this State [Texas] that a trial court may
not force an accused to accept an attorney if he wishes to waive representation and defend himself” and
supp orted the statement via precedent of the Court of Criminal Appeals issued long before Faretta. Webb
v. State , 533 S.W.2d at 783-84. So too was it said that because one has a right to counsel at trial and on
appeal (something no one dispu tes) “it would follow that the correlative right to reject the assistance of counsel
wo uld be equally applica ble to bo th the trial and appeal of a crim inal case.” Id. Given this, one can
legitimately ask whether the court in Webb held as it did beca use of Fare tta and a belief that the Sixth
Amendm ent granted the right of self-representation on appeal or because the right to self-representation at
that level arises from this state’s own jurisprudence and the co nce pt of co rrelative rights a nd simp le logic. If
it is the forme r, then Webb may w ell ha ve been ove rruled by im plica tion. If it is the latter, then it is still viab le
controlling preced ent, even unde r Martinez. Finally, none of the cases rejecting Webb have ad dres sed that.
See e.g. Green v. State, supra; Co rmie r v. State, supra. Nor has the highest criminal court in Texas directed
any interm ediate court to ign ore the pre ced ent of Webb.

                                                            3
deteriorated to such a degree that Delarose can no longer effectively represent his client.

See Neill v. State, No.04-03-0763-CR, 2004 LEXIS 6015 (Tex. App.–San Antonio July 7,

2002, no pet.) (holding that if the appellant raised “seemingly substantial complaint about

counsel” then the trial court should make a thorough inquiry into the reasons for the

complaint but mere disagreements concerning strategy or personality conflicts do not

warrant the removal of appointed counsel).

       Consequently, we abate this appeal and remand the cause to the 137th District Court

of Lubbock County (trial court) for further proceedings. Upon remand, the trial court shall

immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to

determine the following:

       1.     whether appellant desires to prosecute the appeal;

       2.     whether appellant asks to waive appointed counsel and represent
              himself pro se;

       3.     if appellant opts to represent himself, whether appellant’s decision is
              competently and intelligently made. See Hubbard v. State, 739 S.W.2d
              at 345 (holding that to competently and intelligently choose self-
              representation, the defendant should be made aware of the dangers
              and disadvantages of self-representation so that the record will
              illustrate that he knows what he is doing);

       4.     whether circumstances, if any, warrant the substitution of Delarose with
              another counsel, should appellant not care to represent himself; and

       5.     assuming appellant wishes to proceed pro se, whether allowing him to
              do so is in his best interests.

       We further direct the trial court to issue findings of fact and conclusions of law

addressing the foregoing subjects. Should the trial court determine that appellant not only

desires new counsel but also is entitled to same, then new counsel must be appointed by

the trial court, and the latter shall include in its findings of fact the name, address, telephone

                                                4
and fax number, and state bar number of the new counsel appointed. Additionally, the trial

court shall also cause to be developed 1) a supplemental clerk’s record containing the

findings of fact and conclusions of law and 2) a reporter’s record transcribing the evidence

and argument presented at the aforementioned hearing. The trial court shall cause the

supplemental clerk’s record to be filed with the clerk of this court on or before January 7,

2005. Should additional time be needed to perform these tasks, the trial court may request

same on or before January 5, 2005. Finally, the deadline of the State to file an appellee’s

brief is stayed until further order of the court.

       It is so ordered.

                                                    Brian Quinn
                                                      Justice

Publish.




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                                     NO. 07-04-0305-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                    DECEMBER 3, 2004

                           ______________________________


                          EDWARD L. MARTINEZ, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2004-405,843; HONORABLE CECIL G. PURYEAR, JUDGE

                           _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                                  CONCURRING OPINION


       I fully concur with the Court’s decision to abate the appeal and remand this case to

the trial court for determination of the matters set out in the Court’s opinion. For the reasons

discussed in opinions such as the First Court of Appeals’ order in Cormier v. State, 85

S.W.3d 496 (Tex.App.–Houston [1st Dist.] 2002, no pet.), however, I continue to be of the

opinion that a Texas criminal defendant does not have a right or entitlement to represent

                                               6
himself on appeal.




                         James T. Campbell
                             Justice


Publish.




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