Opinion
No. 05-17-00887-CR
11-30-2017
SHABNA KOHISTANI, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas
Trial Court Cause No. 066625
ORDER
On July 25, 2017, appellant timely filed her notice of appeal. On November 14, 2017, appellate counsel filed a motion to withdraw, stating that appellant has not complied with their engagement contract and has failed to assist in his attempts to obtain the reporter's record. On November 21, 2017, court reporter retained Paula Thomas-Gilliam confirmed with the Court that appellant has not paid or made arrangements to pay for the record and, as a result, she has not prepared the record.
In light of these events, we ORDER the trial court to conduct a hearing and to make findings of fact regarding whether appellant intends to proceed with the appeal and whether she is entitled to appointed counsel and a free reporter's record.
• 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.
• If the trial court determines that appellant wishes to prosecute the appeal, it shall next determine whether appellant is indigent and entitled to proceed with court-appointed counsel and without payment of costs for the reporter's record. If appellant is entitled to proceed without payment of costs, the trial court shall make a finding to that effect. Moreover, if appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, including the appointment of counsel.
• If the trial court finds appellant is not indigent, it shall determine whether, in light of retained counsel's motion to withdraw, appellant will retain new counsel to represent her in the appeal and, if so, the name, State Bar number, and contact information for retained counsel. If appellant does not intend to retain counsel to represent her, the trial court shall determine whether appellant intends to represent herself.
• If appellant decides that she does not wish to be represented by counsel and intends to proceed pro se, 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) (trial court should determine whether an appellant is making a competent and intelligent choice in choosing to proceed pro se). The trial court shall further advise appellant that she does not have the right to hybrid representation and that any brief filed by counsel will be stricken.
• If the trial court determines appellant's waiver of counsel is knowing and voluntary, it shall provide appellant with a statement in substantially the same form as provided in article 1.051(g) of the Texas Code of Criminal Procedure and ensure that appellant understands and signs the form. 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, any orders, and if applicable, a signed article 1.051(g) form, to this Court within THIRTY DAYS of the date of this order.
We ABATE the appeal to allow the trial court to comply with the order. The appeal will be reinstated thirty days from the date of this order or when the findings are received, whichever is earlier.
We DIRECT the Clerk to send copies of this order to Honorable Brian Gary, Presiding Judge, 397th Judicial District Court; to Paula Thomas-Gilliam, court reporter of the 397th Judicial District Court; to counsel for all parties; and to Shabna Kohistani, 3434 Whitney Dr., Frisco, TX 75034.
/s/ ADA BROWN
JUSTICE