Timothy Murray v. State ( 2017 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
TIMOTHY MURRAY, § No. 08-16-00186-CR
Appellant, § Appeal from the
v. § 299th District Court
THE STATE OF TEXAS, § of Travis County, Texas
State. § (TC# D-1-DC-15-203175)
§
ORDER
Pending before the Court is Appellant’s second pro se motion to dismiss appointed
counsel. The Court denied a previous motion to dismiss counsel because Appellant did not state
a clear, unequivocal, and unconditional request to represent himself on appeal. In his second
motion, Appellant unequivocally states that he wishes to exercise his right to self-representation.
This appeal was filed on July 6, 2016 and was subsequently transferred to this Court.
Appellant’s court-appointed attorney filed a brief on Appellant’s behalf on January 3, 2017, and
the State filed its brief on February 16, 2017. Appellant’s counsel filed a reply brief on March
14, 2017. Although Appellant did not assert his right to self-representation until after the brief
was filed, Appellant sent correspondence to the Court complaining about counsel before the brief
was filed. Under the circumstances, we conclude that Appellant timely asserted his right to self-
representation.
1
In order to determine whether Appellant is entitled to the relief requested in the motion,
we abate the appeal and remand the cause to the trial court in order for the court to conduct a
hearing in compliance with Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45
L. Ed. 2d 562 (1975), and Hubbard v. State, 739 S.W.2d 341, 345 (Tex.Crim.App. 1987), and for
the purpose of determining whether Appellant is making a competent and intelligent choice in
choosing to proceed pro se on appeal. The trial court is directed to make Appellant aware of the
dangers and disadvantages of self-representation on appeal so that the record will establish that
Appellant knows what he is doing and his choice is made with “eyes open.” Faretta, 422 U.S. at
835, 95 S.Ct. at 2541. Further, the trial court shall make findings of fact and conclusions of law
related to the following:
1. whether Appellant desires to prosecute the appeal;
2. whether Appellant’s request to remove appointed counsel and represent himself on
appeal is an attempt to obstruct court procedure or interfere with the administration of
justice;
3. whether Appellant is aware of the dangers and disadvantages of self-representation on
appeal; and
4. whether Appellant’s decision to represent himself on appeal is competently and
intelligently made.
The trial court should also admonish Appellant that if he persists in his desire to waive counsel
on appeal, the brief and reply brief filed by counsel will be struck and will not be considered by
the Court for any purpose.
A transcription of the hearing and a supplemental clerk’s record containing the court’s
findings and orders must be certified and filed in this Court by May 21, 2017. We will act on the
2
Appellant’s motion to dismiss appointed counsel after reviewing the hearing record and findings
of the trial court.
IT IS SO ORDERED this 6th day of April, 2017.
PER CURIAM
Before McClure, C.J., Rodriguez and Palafox, JJ.
3