Opinion
10-24-00184-CR
06-24-2024
FRANK DILLARD PROCTOR, Appellant v. THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2023-717-C2
ABATEMENT ORDER
PER CURIAM
Appellant, Frank Dillard Proctor, represented himself at trial. No attorney was appointed to represent appellant on appeal, and thus, it appears appellant continues to represent himself on appeal. However, the documents forwarded to us by the trial court clerk do not reflect that appellant has waived the right to appellate counsel in writing or that he has been admonished of the dangers and disadvantages of self-representation on appeal.
Although there is no constitutional right to self-representation on appeal, this Court has recognized that a criminal appellant has a statutory right of self-representation on appeal. See Martinez v. Court of Appeal of California, 528 U.S. 152, 163, 120 S.Ct. 684, 692, 145 L.Ed.2d 597 (2000); Fewins v. State, 170 S.W.3d 293, 296 (Tex. App.-Waco 2005, order). Subsection (f) of article 1.051 of the Code of Criminal Procedure authorizes a criminal defendant to waive his right to appointed counsel, so long as the waiver is made "voluntarily and intelligently" and "in writing." Tex. Code Crim. Proc. Ann. art. 1.051(f). Once the right to self-representation is asserted, the trial court must inform the defendant about "the dangers and disadvantages of self-representation," so that the record will establish that he knows what he is doing and that his choice is made with eyes open. See id. art. 1.051(g). If the trial court determines that the criminal defendant has voluntarily and intelligently waived his right to counsel, the court shall require him to execute a written waiver of counsel which substantially complies with article 1.051(g). See id. art. 1.051(f), (g).
Accordingly, this appeal is ABATED until further order of the Court, and this case is REMANDED to the trial court to conduct a hearing, within 21 days from the date of this Order, to determine whether appellant is indigent and whether appellant desires to represent himself on appeal. If appellant is indigent and desires to represent himself on appeal, the trial court must also admonish appellant on the record "of the dangers and disadvantages of self-representation." See id. art. 1.051(g); Fewins, 170 S.W.3d at 294. If appellant voluntarily and intelligently waives his right to counsel on appeal, the trial court shall require appellant to execute a written waiver of counsel which substantially complies with article 1.051(g) of the Texas Code of Criminal Procedure. Should the trial court determine appellant to be indigent but appellant refuses to respond to the trial court's inquiries or refuses to sign a waiver of appellant's right to be represented by counsel, the trial court must appoint appellate counsel for appellant.
An inquiry regarding appellant's representation will necessarily require the preparation and filing of additional documents such as: (1) findings regarding appellant's indigence; (2) a written waiver of counsel if appellant persists in representing himself; and (3) an order appointing counsel, if necessary. Such documents must be included in clerk's record due, along with a reporter's record, within 28 days from the date of this Order.
Before Gray, Chief Justice Johnson, Justice and Smith, Justice.