Opinion
No. 10-06-00179-CR
Order issued and filed August 2, 2006. DO NOT PUBLISH.
Appeal from the 82nd District Court, Falls County, Texas, Trial Court No. 8138. Appeal abated.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY filed the following note: "I agree with the statements in the first paragraph. I agree we need to abate the appeal so the trial court can determine who is going to represent Mr. Johnson. There are a number of ways the trial court might decide to resolve the relevant issues. I would leave it to the discretion of the trial court to determine the best method to proceed, whether a hearing is necessary, and the most effective method of documenting the decision, if any, of Johnson to represent himself and the admonishments given to him about representing himself.")
ABATEMENT ORDER
Heath Lamont Johnson pleaded nolo contendere to possession of less than one gram of cocaine. Pursuant to a plea bargain, the court assessed his punishment at eight months' confinement in a state jail. The trial court permitted Johnson's retained counsel to withdraw after counsel filed this appeal. However, no other attorney has appeared on Johnson's behalf, and the record does not reflect that Johnson has waived the right to counsel in writing or that the trial court has admonished Johnson of the dangers and disadvantages of self-representation. Accordingly, we will abate the appeal for the trial court to resolve these issues. It may be that Johnson has retained another attorney. However, no attorney has appeared in this Court on behalf of Johnson, and the clerk's record indicates that Johnson is representing himself on appeal. 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 Johnson 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. If Johnson informs the trial court at this hearing that he has retained or intends to retain other counsel, then the court shall advise Johnson that he or his newly retained attorney must notify the Clerk of this Court in writing of that fact within 14 days after the date of the hearing. The trial court shall conduct the hearing within 30 days after the date of this order. The trial court clerk shall file a supplemental record within 45 days after the date of this order. See Fewins, 170 S.W.3d at 296-97. A transcription of the abatement hearing shall be included in the reporter's record when it is filed.
Although this is a plea-bargain case, the trial court has certified that Johnson has the right to appeal the court's denial of his pretrial suppression motion.
Because Johnson had retained trial counsel and has posted an appeal bond, it is doubtful that he would be found indigent.