Hubbard v. State, s. 386-84
| Citation | 739 S.W.2d 341 |
| Decision Date | 04 November 1987 |
| Docket Number | 387-84,Nos. 386-84,388-84,s. 386-84 |
| Parties | Bobby Lee HUBBARD, Appellant, v. The STATE of Texas, Appellee. . |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Lawrence B. Mitchell, Dallas, for appellant.
Henry Wade, Dist. Atty., Donald G. Davis, Joe Revesz and Denver McCarty, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
We granted appellant's pro se petition for discretionary review to address his contention concerning his right to proceed pro se on appeal.
The record reflects that appellant was convicted in two cases of delivery of a controlled substance and in one case of bribery. A jury assessed life sentences in the two cases of delivery of a controlled substance and a term of eighteen years and a fine of $10,000 in the bribery case. Prior to the rendition of the Court of Appeals' opinions in these cases, appellant asked the court for permission to proceed pro se. The Court of Appeals rendered an unpublished opinion for the cases involving delivery of a controlled substance, Hubbard v. State, Nos. 05-82-00467-Cr and 05-82-00718-Cr (Tex.App--Dallas, delivered February 1, 1984), and a published opinion in the bribery case, Hubbard v. State, 668 S.W.2d 419 (Tex.App--Dallas 1984). In its opinions, the Court of Appeals held that appellant was not entitled to hybrid representation and thus overruled appellant's motion to dismiss counsel and proceed pro se. The Court of Appeals then considered the grounds of error raised by counsel and affirmed all three of appellant's convictions.
Appellant now maintains in his pro se petition for discretionary review that the effect of the decision of the Court of Appeals was to deny him his constitutional right to defend himself and to force upon him unwanted counsel. He relies on the decision of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The State acknowledges that a defendant has the same right to represent himself on appeal that he has to represent himself at trial. The State argues, however, that the appellant did not timely assert his right of self-representation.
In Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), some two months after appellate counsel had filed his brief, Webb filed pro se pleadings asking that his appellate counsel be dismissed and he be allowed to proceed pro se on appeal. Applying the rationale of Faretta, this Court held that the right of an accused to reject the services of counsel and represent himself extends into the appellate process. Having reached this holding, the Court then proceeded to examine the procedural issues involved in asserting one's right of self-representation on appeal.
"... It is incumbent upon an accused to clearly and unequivocally inform the trial court of his desire to prosecute his appeal without the aid of counsel. Regardless of the point in the appellate process at which an appellant chooses to assert his right of self-representation, he will be required to comply with all relevant rules of appellate procedure set forth in our Code of Criminal Procedure. The right of self-representation is not a license to capriciously upset the appellate timetable or to thwart the orderly and fair administration of justice.
Webb v. State, 533 S.W.2d at 786. (footnotes omitted).
As can be seen the court did not reach the issue of Webb's right to proceed pro se on appeal because the various motions and correspondence in which he asserted his right to proceed pro se were not properly made a part of the appellate record. 1 We can glean some guidance from Webb on this issue, however, by examining some of the dicta in the opinion. It is interesting and perhaps indicative that the Court made a point of noting that Webb's initial request to proceed pro se was made after his appointed counsel had filed an appellate brief on his behalf.
The situation in Webb is quite different from the situation before us in the present case. The record reflects that appellant has been energetically flooding the courts with pro se motions since his conviction. We have waded through the record and we now present the facts as they relate to appellant's desires to proceed pro se. Appellant was sentenced in each case on April 1, 1982, and on that date appellant gave notice of appeal in open court. At that time, appellant notified the trial court that he could not afford to retain an attorney and would like the court to appoint an attorney to represent him on appeal. The docket sheet reflects that thereafter on May 7, 1982, the trial court appointed an attorney to represent appellant. At the time appellant voiced no complaint to the trial judge regarding this appointment. The record reflects that after failing timely to file briefs in each cause, the attorney successfully obtained an extension of time extending the due date for appellant's briefs until January 6, 1983. On March 3, 1983, three months after the second due date, counsel requested another extension of time until May 30, 1983. This time the Court of Appeals chastised the attorney for his inaction, found that his motion for an extension of time did not comply with TEX.R.CRIM.APP. 6, and denied the motion without prejudice to the filing of a proper extension motion. The Court of Appeals further directed that within seven days of the date of its opinion (April 15, 1983), the attorney either file a proper motion for extension of time or a brief. Meanwhile on March 25, 1983, appellant filed an application for a writ of habeas corpus and a Motion to File Brief on Appeal and/or Supplemental Brief. In his pleadings he asserted that because of his attorney's inaction he was being denied effective assistance of counsel on appeal. The trial court found that appellant was not being denied either effective assistance or his right to appeal and forwarded the record to this Court. We ruled that since appellant's direct appeal was pending, no action need be taken on appellant's application. In April of 1983, the first attorney was removed from the case. Thereafter, in May of 1983, a second attorney was appointed to replace the first attorney. Appellant voiced no objection to this appointment. However, on June 28, 1983, appellant wrote to this Court asking that he be given a copy of his trial transcript. In a letter dated July 15, 1983, the trial judge referring to the letter appellant had written to this Court, informed appellant that since appellate counsel had been appointed in his case, he was not entitled to a trial transcript. The trial court then went on to advise appellant that he had two options: (1) proceed with the second attorney as appellate counsel and forego filing a pro se brief, or (2) dismiss the second attorney and...
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