Day v. State

Full title: SHANNON DAY, Appellant v. THE STATE OF TEXAS, Appellee

Court: State of Texas in the Eleventh Court of Appeals

Date published: Nov 30, 2016

No. 11-16-00255-CR (Tex. App. Nov. 30, 2016)

Opinion

No. 11-16-00255-CR

11-30-2016

SHANNON DAY, Appellant v. THE STATE OF TEXAS, Appellee

PER CURIAM

On Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CR46225

ORDER

Shannon Day is currently represented by court-appointed counsel, Matt Zimmerman; however, it appears that Day may wish to represent himself on appeal. When this court received a pro se brief from Day on November 7, 2016, the clerk of this court informed him by letter that we were unable to file the pro se brief. As we explained in the letter, Day is not entitled to hybrid representation and is currently represented by court-appointed counsel. In response, Day has filed in this court a timely request to proceed pro se on appeal. We abate this appeal.

We must abate the appeal and remand the cause to the trial court so that the trial court may determine the following:

1. Whether Day desires to prosecute his appeal;

2. Whether Day remains indigent;

3. If not indigent, whether Day has retained counsel for this appeal; and

4. If indigent, whether Day desires to have counsel appointed to represent him in this appeal or whether, after being warned of the dangers and disadvantages of self-representation, Day competently and intelligently chooses to exercise the right to represent himself.

If it is determined that Day is indigent and is exercising his right to represent himself, the trial court must develop evidence as to whether Day's decision to proceed without counsel is knowingly and intelligently made. See Faretta v. California, 422 U.S. 806 (1975); Ex parte Davis, 818 S.W.2d 64 (Tex. Crim. App. 1991); Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987); Webb v. State, 533 S.W.2d 780, 783-86 (Tex. Crim. App. 1976). The trial court is directed to enter findings of fact and conclusions of law and to make any appropriate recommendations to this court.

The clerk of the trial court is directed to prepare and forward to this court a supplemental clerk's record containing the findings, recommendations, and any orders of the trial court. The court reporter is directed to prepare and forward to this court the reporter's record from the hearing. These records are due to be filed in this court on or before December 30, 2016.

The appeal is abated. November 30, 2016

PER CURIAM Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.