Emekwanem Ibe Biosah v. State

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.