Abatement Order filed November 27, 2018




                                      In The

                    Fourteenth Court of Appeals
                                   ____________

                             NO. 14-18-00462-CR
                                   ____________

                         BRENT JUSTICE, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1385768



                            ABATEMENT ORDER

      Appellant is represented by appointed counsel, Thomas A. Martin. On
October 24, 2018, 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
ninety days have elapsed since his counsel’s appointment and counsel has not
conferred with appellant or responded to appellant’s letters. Accordingly, we issue
the following order.

      WE ORDER the Judge of the 176th District Court, 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

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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 176th 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 on or before December 31, 2018.

      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




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