Opinion
No. 05-17-00678-CR
08-18-2017
THYREN CLENT JUSTUS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F16-53093-W
ORDER
On June 15, 2017, appellant filed his notice of appeal. The record was due August 1, 2017. When it was not filed, we notified the district clerk and the court reporter that the records were overdue. In response, court reporter Patricia Holt notified us that "Peter Schulte is no longer [appellant's] retained counsel" and that she had not been updated on who his retained counsel was.
Because no motion to withdraw had filed in this Court, we contacted retained counsel to determine the status of this appeal. When we did not receive a response, we contacted appellant's family and were informed that retained counsel had not withdrawn but that appellant no longer wanted to proceed with the appeal. We then notified retained counsel and instructed him to file, if appropriate, a motion to dismiss. In response, counsel filed a letter detailing his attempts to correspond with appellant and his family. According to counsel, he has not been retained but filed the notice of appeal "in an effort to preserve [appellant's] rights." Appellant's family has alternatively represented to him that appellant was still considering an appeal and no longer wishes to pursue the appeal. Finally, counsel noted appellant has not responded to requests that he confirm in writing his desire to withdraw the appeal.
Therefore, we ORDER the trial court to hold a hearing and make findings of fact to determine the following:
• The trial court shall first determine whether appellant desires to prosecute the appeal. If the trial court determines that appellant does not desire to prosecute the appeal, it shall make a finding to that effect, and no further findings are necessary.
• If the trial court determines that appellant does wish to pursue the appeal, the trial court shall next determine whether appellant desires to be represented by counsel.
• If the trial court determines appellant desires to be represented by counsel, the trial court shall determine whether appellant is indigent and entitled to court-appointed counsel. If appellant is indigent, we ORDER the trial court to appoint counsel to represent him. If appellant is not indigent, the trial court shall determine whether retained counsel has abandoned the appeal or if appellant has retained new counsel. If appellant has retained new counsel, the trial court shall determine the name, State Bar number, and contact information for retained counsel.
• If the trial court determines that appellant does not wish to be represented by counsel, the trial court shall advise appellant of the dangers and disadvantages of self-representation. See Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987). The trial court shall further advise appellant that he does not have the right to hybrid representation.
• If the trial court determines appellant's waiver of counsel is knowing and voluntary, it shall provide appellant with a statement in substantially the form provided in article 1.051(g) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
We ORDER the trial court to transmit a record, containing the written findings of fact, any supporting documentation, and any orders, to this Court within THIRTY DAYS of the date of this order.
This appeal is ABATED to allow the trial court to comply with this order. The appeal shall be reinstated thirty days from the date of this order or when the findings are received, whichever is earlier.
/s/ LANA MYERS
JUSTICE