Johnathan Cooper v. State ( 2019 )

Order entered July 11, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01246-CR
JOHNATHAN COOPER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court Cause No. 1031532D
ORDER
Before the Court is appellant’s July 9, 2019 motion in which he seeks to “retract his
statement to proceed with counsel and reasserts his right to pro-se self-representation.” Although
originally filed in the Second Court of Appeals, this case was transferred to this Court on
September 26, 2018 by the Texas Supreme Court pursuant to a docket equalization order. See
TEX. GOV’T CODE ANN. § 73.001.
The record shows appellant is appealing an adverse finding on post-conviction DNA
testing. Appellant requested appointed appellate counsel at the time he filed his notice of appeal.
The trial court appointed as appellate counsel the same attorney who had represented appellant in
the trial court DNA testing proceedings. After appellant filed a series of pro se motions and
letters complaining about counsel, including a January 8, 2019 motion requesting self-
representation, the Court issued a January 15, 2019 order abating this case to allow the trial court
to conduct a hearing to determine whether new counsel should be appointed. During the
abatement, appellate counsel filed a motion to withdraw. The trial court made a finding that a
conflict existed between appellant and appellate counsel and it appointed new counsel.
By order dated February 19, 2019, the Court reinstated the appeal and substituted in
appellant’s current counsel. Current counsel filed a brief for appellant on April 19, 2019. On
May 13, 2019, appellant filed an objection to the brief and requested permission to represent
himself. On May 16, 2019, the State filed its brief.
On May 20, 2019, the Court entered an order granting appellant’s May 13, 2019 motion.
The Court abated the appeal and ordered the trial court to determine (1) whether appellant
desired to dismiss appointed counsel and represent himself pro se on appeal; (2) whether
appellant’s waiver of appointed counsel was made competently, voluntarily, knowingly, and
intelligently; (3) whether appellant was fully aware of the dangers and disadvantages of self-
representation on appeal, and if not, to inform him of the dangers and disadvantages of self-
representation; (4) whether appellant was capable of representing himself in a manner that will
not harm the interests of himself or the State; and (5) whether appellant’s self-representation can
be accomplished without obstructing the orderly procedure of the Court or interfering with the
fair administration of justice. The order further directed the trial court to advise appellant that he
does not have the right to hybrid representation and, if he is allowed to proceed pro se, the brief
filed by counsel would be stricken.
On June 14, 2019, the trial court conducted a brief hearing on appellant’s request for self-
representation. During the hearing, appellant informed the trial court that he wanted to proceed
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with current counsel. The trial court entered an order reflecting appellant’s stated desire to retain
current counsel rather than represent himself on appeal.
On June 24, 2019, the Court received a letter from appellant, dated June 14, 2019, stating
that he “conditionally declined to proceed pro-se, only after agreement that [current appellate
counsel] will supplement the brief” with additional issues. Appellant’s letter stated that if his
existing brief was not supplemented with the additional issues, he would reassert his right to
represent himself pro se.
In response, the Court entered a July 5, 2019 order ordering appellant to file any
supplemental brief through counsel within fifteen days of the date of the order. The Court
warned appellant that he would not be allowed to engage in hybrid representation by filing a pro
se supplemental brief. See Miniel v. State, 831 S.W.2d 310, 313 n.1 (Tex. Crim. App. 1992).
After the parties have filed briefs, after the appeal was abated twice for hearings
regarding appellant’s representation, and after appellant expressly declined the opportunity to
represent himself and decided to accept counsel’s representation, we conclude appellant ’s
renewed interest in pro se representation comes too late and would delay the orderly
administration of justice. We DENY appellant’s motion.
/s/ LANA MYERS
JUSTICE
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