Opinion
05-23-01244-CR
10-03-2024
EBBY DEWAYNE WADE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 073026
ORDER
ROBERT D. BURNS, III CHIEF JUSTICE
We REINSTATE this appeal.
Before the Court is appellant's motion for appointment of standby counsel on appeal. Appellant's motion is DENIED.
An indigent appellant has a right to be represented by appointed counsel on appeal. Tex. Code Crim. Proc. Ann. art. 1.051(d)(1). A trial court has authority and discretion to appoint standby counsel to assist a pro se indigent appellant, but there is no right to the appointment of standby counsel. See Scarbrough v. State, 777 S.W.2d 83, 93 (Tex. Crim. App. 1989) ("The trial court should make it plain to the accused that he has no right to standby counsel."). Until such time as this Court orders the trial court to appoint counsel to represent appellant, either on appellant's motion or by this Court sua sponte, appellant remains pro se and without appointed counsel. See Fulbright v. State, 41 S.W.3d 228, 235 (Tex. App.-Fort Worth 2001, pet. ref'd) ("If a trial court refuses to appoint standby counsel or withdraws an offer of standby counsel, a defendant must choose between two mutually exclusive rights: the right to self-representation without standby counsel or representation by counsel. There is no middle ground."). Appellant may request appointment of counsel to represent him on appeal by filing a motion with this Court.
We ABATE this appeal for the trial court to comply with this Court's order of September 3, 2024. Pursuant to this Court's order of September 3, 2024, the trial court shall hold a hearing as provided by that order on or before OCTOBER 18, 2024. The trial court's findings pursuant to the order of September 3, 2024, are due NOVEMBER 18, 2024. The reporter's record of the hearing required by this Court's order of September 3, 2024, is due NOVEMBER 18, 2024. The appeal shall be reinstated when the Court receives the trial court's findings or at such other time as the Court deems appropriate.
We DIRECT the Clerk to send copies of this order to the Honorable Brian Gary, Presiding Judge, 397th Judicial District Court; Kelly Ashmore, Grayson County District Clerk; Paula Thomas, Official Court Reporter, 397th District Court; appellant Ebby Dewayne Wade; and counsel for all parties.