David Michael Starks v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: David Michael Starks v. The State of Texas Appellate case number: 01-13-00830-CR Trial court case number: 1397088 Trial court: 178th District Court of Harris County

Appellant, David Michael Stark, has filed a request to dismiss his appointed counsel and proceed pro se in this appeal. We review requests for self-representation in appeals from criminal convictions on a case-by-case basis, considering the best interests of both the appellant and the State. This is because the Supreme Court held that there is no federal constitutional right to represent oneself on appeal. Martinez v. Court of Appeal, 528 U.S. 152, 163, 120 S. Ct. 684, 692 (2000); Cormier v. State, 85 S.W.3d 496, 498 (Tex. App.—Houston [1st Dist.] 2002, order). See also Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987)(remanding to appellate court to direct a trial court hearing admonishing appellant of the dangers and disadvantages of self-representation, and development of evidence as to whether an election to proceed pro se is knowingly and intelligently made).

Accordingly, we require findings from the trial court on this matter and must abate the appeal and remand the case for a hearing at which appellant shall be present in person.1 If appellant is not incarcerated, but fails to appear at the hearing after having been notified to do so, or after reasonable attempts to notify him have been made, then the trial court should make that finding and send it to this Court. If appellant is present for the hearing, we direct the trial court to make appropriate findings on these issues:

(1) whether appellant still wishes to prosecute the appeal and, if so,

(2) whether Robert Wicoff should be permitted to withdraw as counsel;

1 If appellant is now incarcerated, he may appear by closed circuit video teleconference.

(3) whether appellant wishes to represent himself after having been admonished by the trial court of the dangers and disadvantages of doing so;

(4) whether the trial court finds that it would not be in the best interests of appellant and the State for him to do so; and

(5) if appellant does not wish to represent himself, or if the trial court finds that self-representation would not be in the best interests of appellant and the State, whether he is

(a) indigent, in which case the trial court should continue the appointment of counsel Wicoff, or another appointed counsel or if appellant is

(b) not indigent, the trial court should determine whether appellant has retained counsel to file a brief and represent him on appeal, and, if so, the name, address, telephone number, and State Bar number of retained counsel. (See TEX. R. APP. P. 38.8(b)(4).)

The trial court shall have a court reporter record the hearing. The trial court’s written findings and recommendations shall be sent to this Court no later than 60 days from the date of this order.

This 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 coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of the scheduled hearing date.

It is so ORDERED.

Judge’s signature: /s/ Harvey Brown X Acting individually  Acting for the Court

Date: November 8, 2013