Opinion
NO. 14-16-00413-CR NO. 14-16-00414-CR
03-23-2017
OVERILLE DENTON THOMPSON, JR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Cause Nos. 1445929 and 1445930
ABATEMENT ORDER
Appellant is represented by appointed counsel, Michael McEnrue. Appellant has filed a motion to dismiss his appointed attorney and to proceed pro se on appeal. When a criminal appellant waives his right to appointed counsel, he waives many traditional benefits associated with the right to counsel. Before an appellant may dismiss appointed counsel and proceed pro se, the waiver must be "knowingly and intelligently" made. See Faretta v. California, 422 U.S. 806 (1975).
In Martinez v. California, 528 U.S. 152 (2000), the United States Supreme Court reaffirmed its holding that criminal defendants have a constitutional right to conduct their own defense at trial, if they voluntarily and intelligently elect to do so; but, the Court then held that criminal defendants have no federal constitutional right to represent themselves on direct appeal from a conviction. Id. at 154, 62. The Court added, however, that appellate courts, in the exercise of their discretion, may allow a defendant to proceed pro se on appeal based on the best interests of the defendant and the government. Id. at 161, 62. In other words, criminal defendants have no federal constitutional right to self-representation on direct appeal, but states are not precluded from recognizing such a right under their own constitutions. Id.
The Court of Criminal Appeals of Texas has yet to address this issue. This court has adopted the standard established in Martinez, and we review requests to proceed pro se on a case-by-case basis considering the best interests of both the criminal appellant and the State. See Hadnot v. State, 14 S.W.3d 348, 349 (Tex. App.—Houston [14th Dist.] 2000) (order). In this case, appellant asserts his appointed counsel is "actively representing conflicting interests" by not raising issues of alleged errors by one of appellant's previously appointed lawyers, with whom his currently appointed appellate counsel reportedly has a social and professional relationship. We conclude that the trial court should conduct a prompt hearing on this matter so that it may be resolved immediately. Accordingly, we
ORDER the Judge of the 185th District Court to conduct a hearing at which appellant, appellant's attorney, and state's counsel shall be present to determine: (1) whether appellant desires to prosecute his appeal; (2) whether appellant wishes to discharge his appointed attorney and proceed with his appeal pro se; (3) whether the waiver of assistance of counsel is made voluntarily, knowingly and intelligently; (4) whether appellant's decision to proceed pro se is in the best interest of appellant and of the State; and (5) whether appellant is fully aware of the dangers and disadvantages of self-representation. See Funderburg v. State, 717 S.W.2d 637 (Tex. Crim. App. 1986); Webb v. State, 533 S.W.2d 780 (Tex. Crim. App. 1976); Trevino v. State, 555 S.W.2d 750 (Tex. Crim. App. 1977). We further
ORDER the Judge of the 185th District Court to have a court reporter present to prepare a reporter's record. The reporter's record, and a supplemental clerk's record containing the trial court's findings, shall be filed with the clerk of this court no later than April 24, 2017.
These appeals are abated, treated as closed cases, and removed from this court's active docket. The appeals will be reinstated on this court's active docket when the trial court's findings and recommendations are filed in this court. The court also will consider an appropriate motion to reinstate the appeals filed by either party, or the court may reinstate the appeals on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this court's order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.
PER CURIAM Panel consists of Chief Justice Frost and Justices Boyce and Jamison