David James Chapman v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: David James Chapman v. The State of Texas
Appellate case number: 01-14-00980-CR
01-14-00981-CR
Trial court case number: 1421328
1421329
Trial court: 183rd District Court of Harris County
1. Certifications of Defendant’s Right to Appeal
In cause number 1421328, the Certification of Defendant’s Right to Appeal is missing
from the record. In cause number 1421329, the Certification of Defendant’s right to appeal is
defective. The certification in 1421329 states that Chapman’s case was a plea bargain and that
he has no right of appeal. The record, however, reflects that Chapman plead guilty without an
agreed recommendation as to punishment from the State, and was therefore not a plea bargain.
The parties should take the necessary steps to obtain corrected certifications of defendant’s right
to appeal in each of these cause numbers. Without an accurate certification of defendant’s right
to appeal from the trial court, we do not have jurisdiction to hear the appeals.
2. Abatement for Indigence and Counsel
Chapman has filed pro se notices of appeal in each of these cause numbers. Nothing in
the record reflects that Chapman has ever been admonished regarding the dangers and
disadvantages of proceeding pro se on an appeal. Further, there is nothing in the record
indicating Chapman’s appointed counsel at trial, Clyde Williams, has been permitted to
withdraw. Chapman has filed a motion in this Court requesting counsel be appointed to him for
these appeals. We do not have jurisdiction to appoint counsel.
As such, we must abate this appeal and remand the case to the trial court for a hearing at
which appellant and trial counsel shall be present in person. 1 The court coordinator of the trial
1 If appellant is now incarcerated, he may appear by closed video teleconference. Any such teleconference
must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full
motion video and interactive communication 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.
court shall set a date for said hearing and notify the parties, including appellant. We direct the
trial court to make appropriate written findings of fact and conclusions of law and to execute any
necessary orders on these issues:
1) Whether appellant still wishes to pursue this appeal;
2) If so, whether to allow trial counsel, Clyde Williams, to withdraw;
3) Whether appellant is now indigent and entitled to appointed counsel; and, if
indigent,
a. appoint counsel on appeal, and
b. order the court reporter to file the reporter’s record with this Court at no
cost to appellant;
4) If appellant is not indigent:
a. whether he has retained an attorney to file a brief, and, if so, obtain the
name, address, and telephone number of retained counsel;
b. if appellant has not retained counsel, the trial court shall admonish
appellant of the dangers and disadvantages of self-representation, and
i. determine whether appellant is knowingly and intelligently
waiving his right to counsel; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by
which appellant must hire an attorney.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f); Oliver v. State, 872 S.W.2d 713, 716 (Tex.
Crim. App. 1994); Minjares v. State, 577 S.W.2d 222, 224 (Tex. Crim. App. 1978); cf. TEX.
CODE CRIM. PROC. ANN. art. 1.051(g).
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.
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.
It is so ORDERED.
Judge’s signature: ___/s/ Harvey Brown
X Acting individually
Date: June 18, 2015