Danny Wayne Alcoser v. the State of Texas, 663 S.W.3d 160

Background

Appellant Danny Wayne Alcoser previously had three convictions reversed by this court (2019) for improper jury instructions; the Court of Criminal Appeals (CCA) later affirmed reversals as to child endangerment and interference with an emergency request but reinstated the family-violence assault conviction and remanded for consideration of two remaining issues (mistrial denial and factual sufficiency).
On remand, Alcoser filed a pro se motion asking this court to remove his court-appointed appellate counsel, strike counsel’s original appellate brief, restart appellate deadlines, and permit Alcoser to represent himself on direct appeal.
Alcoser asserted a conflict because appellate counsel did not raise ineffective-assistance-of-counsel (IAC) claims on direct appeal via an amended motion for new trial that was apparently filed but not included in the appellate record.
The court observed that IAC claims are generally not fully developed on the direct-appeal record and are typically addressed in an article 11.07 habeas proceeding; raising them on direct appeal could, in some circumstances, foreclose habeas relief if rejected on appeal.
The court explained that under Texas law the trial court — not this appellate court — controls withdrawal of appointed counsel (art. 26.04(j)), and that there is no recognized state constitutional right to self-representation on direct appeal; the appellate court has discretion but weighs the interests of the appellant, the State, and administration of justice.
Because the case was on CCA remand directing this court to address the remaining points in the existing appellate brief, the court denied Alcoser’s requests to remove counsel, strike the brief, restart time, and self-represent.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel’s failure to raise IAC on direct appeal justified relief	Alcoser: counsel omitted IAC claims via amended motion for new trial; conflict warrants removal	State/Court: IAC claims are usually undeveloped on direct appeal and properly pursued via habeas; raising on appeal could bar habeas later	Denied — IAC complaints are generally for habeas; omission did not warrant removing counsel now
Whether this court may withdraw appointed appellate counsel	Alcoser: asks this court to permit counsel to withdraw	State/Court: art. 26.04(j) vests withdrawal authority in the trial court upon a finding of good cause	Denied — trial court, not appellate court, must relieve or replace appointed counsel
Whether Alcoser may self-represent on direct appeal	Alcoser: requests self-representation and an abatement to determine competency	State/Court: No state constitutional right to self-representation on direct appeal; appellate court may exercise discretion	Denied — self-representation not prudent on remand where CCA directed consideration of issues in counsel’s brief
Whether the original appellate brief should be struck and appellate time restarted	Alcoser: requests brief struck and time restarted due to alleged conflict/omission	State/Court: CCA remanded to address remaining points in that brief; court should consider those points now	Denied — court will consider remaining issues raised in counsel’s original brief

Key Cases Cited

Alcoser v. State, 596 S.W.3d 320 (Tex. App.—Amarillo 2019) (opinion reversing convictions based on improper jury instructions)
Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) (IAC claims often not fully developed on direct appeal)
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (discussing reviewability of IAC claims on direct appeal)
Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012) (IAC cognizable via article 11.07 habeas corpus)
Ex parte Torres, 942 S.W.2d 469 (Tex. Crim. App. 1997) (raising IAC on direct appeal can affect habeas availability)
Ex parte Acosta, 672 S.W.2d 470 (Tex. Crim. App. 1984) (precedent regarding appellate versus habeas review of IAC)
Scheanette v. State, 144 S.W.3d 503 (Tex. Crim. App. 2004) (no recognized state constitutional right to self-representation on direct appeal)