Abatement Order filed August 11, 2020




                                      In The

                    Fourteenth Court of Appeals
                                   ____________

                              NO. 14-20-00243-CR
                                   ____________

                   EMEKWANEM IBE BIOSAH, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 212th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 18-CR-1912

                             ABATEMENT ORDER

      Appellant is represented by appointed counsel, Thomas A. Martin. On July
24, 2020, appellant 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; however, the Court then held that criminal defendants have no federal
constitutional right to represent themselves on direct appeal from a conviction. 528
U.S. at 154-62. The Court added, however, that appellate courts may, in the
exercise of their discretion, 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.

      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 that
counsel has never contacted him and did not aid him in filing a motion to post
bond pending appeal. Accordingly, we issue the following order.

      WE order the Judge of the 212th District Court in Galveston County, to
immediately 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 212th 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 within 30 days from the date of this order.

      The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
trial court’s findings and recommendations are filed in this court. The court will
also consider an appropriate motion to reinstate the appeal filed by either party, or
the court may reinstate the appeal 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.

      It is so ordered.


                                   PER CURIAM
Panel Consists of Justices Wise, Bourliot, and Spain.
