Order entered January 19, 2023

In The

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00041-CR

ANTHONY YUMA DUNCAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. F20-75167-P

ORDER

Before the Court is a letter filed January 12, 2023, from appellant’s 

appointed counsel, Allan Fishburn, informing the Court that the trial court notified 

him “that Appellant does not wish to be represented by Counsel and would be 

proceeding pro-se.” Mr. Fishburn asks that we remove him as counsel of record. 

Withdrawal from representation requires the filing of a motion to withdraw that 

complies with Rule of Appellate Procedure 6.5. See TEX. R. APP. P. 6.5. Mr. 

Fishburn’s letter does not comply with that rule. 
It appears appellant has demonstrated an intent to proceed pro se because on 

January 10, 2023, appellant filed an amended notice of appeal stating he was “selfrepresented.” Mr. Fishburn’s letter presents no grounds for permitting appellant to 

proceed pro se, and appellant has made no motion with this Court to proceed pro 

se. Accordingly, we DENY Mr. Fishburn’s request to withdraw from representing 

appellant.

Appellant does not have a constitutional right to self-representation on 

appeal. Martinez v. Ct. of Appeal of Cal., 528 U.S. 152, 163 (2000); Scheanette v. 

State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004). However, appellate 

courts have discretion to determine whether to permit an appellant to represent 

himself on appeal. McCray v. State, No. 07-19-00430-CR, 2020 WL 994685, at *1 

(Tex. App.—Amarillo Feb. 27, 2020, no pet.). Our exercise of that discretion 

depends on a case-by-case analysis of the best interest of the appellant, the State, 

and the administration of justice. Id.

To assist us in that determination, we ORDER the trial court to conduct a 

hearing to determine:

1. whether appellant still desires to prosecute the appeal;

2. whether appellant is indigent and entitled to the appointment of 

appellate counsel;

3. whether appellant desires to represent himself on appeal;
4. if appellant desires to represent himself, whether his decision to do so 

is competently and intelligently made, including whether he is aware 

of the dangers and disadvantages of self-representation on appeal; and 

5. if appellant desires to represent himself, whether allowing him to do 

so is in his best interest, in the best interest of the State, and in 

furtherance of the proper administration of justice.

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

allowing appellant to represent himself on appeal is not in his best interest, in the 

best interest of the State, and in furtherance of the proper administration of justice,

the trial court is ORDERED to take such measures as may be necessary to assure 

effective representation, which may include appointment of new counsel. If the 

trial court cannot obtain appellant’s presence at the hearing, the trial court shall 

conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708 

(Tex. App.–Corpus Christi 1987, no pet.) (per curiam). 

We ORDER the trial court to transmit a record of the proceedings, which 

shall include written findings and recommendations, to this Court within THIRTY 

DAYS of the date of this order. 

The clerk’s record and the reporter’s record are due FEBRUARY 12, 2023.

We DIRECT the Clerk to send copies of this order to the Honorable Raquel 

Rocky Jones, 203rd Judicial District Court; Felicia Pitre, Dallas County District 

Clerk; Lisabeth Kellett, Court Reporter; Allan Fishburn; the appellate division of 
the Dallas County District Attorney; and Anthony Duncan, 1017 Paintbrush St., 

Mesquite, TX 75149. 

This appeal is ABATED to allow the trial court to comply with the above 

order. The appeal shall be reinstated when the record of the proceedings 

containing the trial court’s findings is transmitted to this Court or when the Court 

finds it appropriate to do so.

/s/ DENNISE GARCIA

JUSTICE