Richard Oduol v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00386-CR Richard Oduol, Appellant v. The State of Texas, Appellee From the County Criminal Court at Law No. 1 Harris County, Texas Trial Court No. 1319226 ABATEMENT ORDER Appellant has represented himself at trial and continues to do so on appeal. However, the record does not reflect that he has waived the right to counsel in writing or that he has been admonished of the dangers and disadvantages of self-representation. In addition, Appellant contends that the reporter’s record is inaccurate. Accordingly, we will abate the appeal for the trial court to resolve these issues. When a criminal defendant contests his guilt and desires to waive his right to counsel and represent himself, “the waiver should be made ‘knowingly and intelligently’ and he should be warned of the ‘dangers and disadvantages’ accompanying such waiver.” Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002) (quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975)); accord Fewins v. State, 170 S.W.3d 293, 295 (Tex. App.—Waco 2005, order) (per curiam); East v. State, 48 S.W.3d 412, 413 (Tex. App.—Houston [14th Dist.] 2001, order) (per curiam). A waiver of the right to counsel must be in writing and must substantially comply with article 1.051(g) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005); Fewins, 170 S.W.3d at 294. Here, there is nothing in the record to indicate that the trial court warned Appellant of the “dangers and disadvantages” of self-representation and there is no written waiver of the right to counsel in the record. Accordingly, we will abate the appeal for the trial court to so warn Appellant and for a written waiver of counsel to be signed. See Fewins, 170 S.W.3d at 294; East, 48 S.W.3d at 413-14. In addition, Appellant contends (without much specificity) that the reporter’s record is inaccurate. Appellant states in a motion[1] filed on January 13, 2006 that the reporter’s record has “several errors, omissions and discrepancies.” He states that he has been unable to convince the court reporter to make corrections he believes to be necessary. Rule of Appellate Procedure 34.6(e)(3) authorizes an appellate court to submit a dispute about the accuracy of the reporter’s record to the trial court for resolution. See Tex. R. App. P. 34.6(e)(3); Lomax v. State, 153 S.W.3d 582, 584 (Tex. App.—Waco 2004, order) (per curiam). Accordingly, we will abate the appeal for the trial court to resolve Appellant’s complaints about the accuracy of the reporter’s record. If the court finds that the reporter’s record is inaccurate, then the court is ordered to sign a written order reflecting this finding and ordering the court reporter to (1) prepare a corrected record which “conform[s] . . . to what occurred in the trial court” and (2) file it with the Clerk of this Court. See Tex. R. App. P. 34.6(e)(2); Lomax, 153 S.W.3d at 586. If the court finds that the record is accurate, then the court is ordered to sign a written order to that effect. See Lomax, 153 S.W.3d at 586. Regardless of whether the court orders a supplementation or correction of the reporter’s record, the district clerk is ordered to file a supplemental clerk’s record containing a copy of the court’s order(s) with the Clerk of this Court. See Tex. R. App. P. 34.5(c); Lomax, 153 S.W.3d at 587. If necessary to any issue on appeal, unless the parties waive the making of a reporter’s record in the abatement hearing, the court reporter is ordered to prepare and file a supplemental reporter’s record of the abatement hearing with the Clerk of this Court. See Tex. R. App. P. 13.1(a), 34.6(d); Lomax, 153 S.W.3d at 587. The trial court shall conduct the hearing within 30 days after the date of this order. The trial court clerk and the court reporter shall file supplemental records within 45 days after the date of this order. See Fewins, 170 S.W.3d at 296-97; Lomax, 153 S.W.3d at 586-87. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna Order issued and filed May 10, 2006 Do not publish [1] Appellant regularly fails to include certificates of service in his pleadings, including this motion. See Tex. R. App. P. 9.5. The Clerk of this Court has warned Appellant on several occasions of this deficiency. If Appellant continues to fail to serve copies of his pleadings on counsel for the State, his pleadings may be struck, and he may be prohibited from filing similar documents in the future. Id. 9.4(i). irm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 14, 2007 Do not publish [CRPM]