Arnold Ray Lamotte v. State ( 2015 )

Court of Appeals for the
First District of Texas at Houston
Order of Continuing Abatement
Appellate case name: Arnold Ray Lamotte v. The State of Texas
Appellate case number: 01-15-00368-CR
Trial court ease number: C-l-CR-12-300283
Trial court: County Court at Law No 6 of Travis County
On May 19, 2015, this appeal was abated for a hearing to determine if Lamotte's
appointed counsel, Karen E. Oprea, should be permitted to withdraw. On June 18, 201.5, the
court reporter filed a transcript of the abatement hearing. The record of the hearing reveals
Oprea was permitted to withdraw as counsel for appellant, and the trial court found it was in the
best interestof Lamotte to be permitted to proceed on this appeal pro se.
Lamotte did not appear for the abatement hearing, despite notice being sent to multiple
addresses on file with the trial court. Therefore, Lamotte has not been properly admonished
regarding the dangers and disadvantages of proceeding pro se.
Failure to admonish a defendant on the dangers and disadvantages of self-representation
is error, and this Court could not consider an appellate brief filed by a pro se appellant who lacks
the admonishments. See, e.g., Webb v. State, 533 S.W.2d 780, 785 (Tex. Crim. App. 1976)
("The trial court should therefore admonish an accused who desires to represent himself
regarding the wisdom and practical consequences of that choice,"); cf. Tex. Code Crim. Proc.
Ann. art. 1.051(g).
A defendant whom the trial court has determined to be indigent "is presumed indigent for
the remainder of the proceedings in the case unless a material change in [his] financial
circumstances occurs." Tex. Code Crim. Proc. Ann. art. 26.04(p) (West 2014). Because there
is currently no evidence of a change in financial circumstances, we must presume Lamotte
remains indigent.
Accordingly, we abate this appeal and remand the case to the trial court for a hearing at
which appellant shall be present in person. The court coordinator of the trial court shall set a
date for said hearing and notify the parties, including appellant. If appellant is now incarcerated,
hemay appear byclosed video teleconference.1 We direct the trial court to:
Any such teleconference must use a closed-circuit video teleconferencing system that
provides for a simultaneous compressed full motion video and interactive communication
Court of Appeals, First District
301 Fannin Street
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0001372104 JUL 09
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FIRSTCOURT OF APPEALS
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CASE NO. 01
X AUG 0 7 2015
00368-CR
ARNOLD RAY, MOTTE CHRISTOPHER A. PRINE
P.O. BOX 3a fcLERK.
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1) Admonish appellant of the dangers and disadvantages of self-representation, and
2) Determine whether appellant is knowingly and voluntarily Waiving his right to
counsel, and
a. if so, obtain a written waiver of the right to counsel and provide appellant
with a copy of a written order setting a date certain when appellant's brief
is due, regardless of whether this Court has yet reinstated the appeal and
no later than 30 days from the date of the hearing; or
b. if appellant does not wish to proceed pro se, or, if appellant does not
appear for the hearing, appoint substitute appellate counsel at no expense
to appellant.
The trial court shall have a court reporter, or court recorder, record the hearing and file
the reporter's record with the Court no later than 30 days from the date of this order.
Additionally, the trial court's findings and recommendations and any orders issued pursuant to
this hearing shall be included in a supplemental clerk's record and filed in this Court no later
than 30 days from the date of this order. If the hearing is conducted by video teleconference, a
certified electronic copy of the hearing shall be filed in this Court no later than 30 days from the
date of this order.
In the event another attorney is appointed to represent appellant, counsel's brief will be
due 30 days after the trial court makes its appointment, regardless of whether this Court has yet
reinstated the appeal.
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 supplemental
clerk's record and reporter's record of the hearing 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 such
date.
It is so ORDERED.
Judge's signature: Isi Rebecca Huddle
HI Acting individually
Date: July 9, 2015
of image and sound between the trial court, appellant, and any attorneys representing the
State or appellant. On request, appellant and his counsel shall be able to communicate
privately without being recorded or heard by the trial court or the attorney representing
the State.