Hamis Athoman Chande v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00417-CR
HAMIS ATHOMAN CHANDE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-338-C1
ABATEMENT ORDER
On March 11, 2013, this Court received appellant Hamis Athoman Chande’s
“Motion for Self-Representation.” In this motion, appellant seeks to waive his right to
counsel pursuant to article 1.051 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 1.051(f)-(g) (West Supp. 2012). In doing so, appellant
asserts that his appellate counsel has failed to file a motion for new trial at appellant’s
request, meet with appellant, and communicate with appellant.
The United States Supreme Court has held that there is no constitutional right to
represent oneself on appeal. Martinez v. Court of Appeal of California, Fourth Appellate
District, 528 U.S. 152, 163, 120 S. Ct. 684, 692, 145 L. Ed. 2d 597 (2000); see Fewins v. State,
170 S.W.3d 293, 295 (Tex. App.—Waco 2005, order) (clarifying that “article I, section 10 of
the Texas Constitution does not confer the right of self-representation afforded by the
Sixth Amendment under Faretta.” (emphasis in original)). However, a criminal
defendant does have a statutory right to self-representation on appeal. See TEX. CODE
CRIM. PROC. ANN. art. 1.051(d)(1); see also Sickles v. State, 170 S.W.3d 298, 299 (Tex.
App.—Waco 2005, order). But the right to represent oneself on appeal cannot be used
as a tactic to delay the disposition of a proceeding or to create an issue when there is
none. See Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987); Webb v. State, 533
S.W.2d 780, 786 (Tex. Crim. App. 1976); see also Faretta v. California, 422 U.S. 806, 834
n.46, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (“The right of self-representation is not
a license to abuse the dignity of the courtroom. Neither is it a license not to comply
with relevant rules of procedural and substantive law. Thus, whatever else may or may
not be open to him on appeal, a defendant who elects to represent himself cannot
thereafter complain that the quality of his own defense amounted to a denial of
‘effective assistance of counsel’”).
On the other hand, subsection f of article 1.051 of the Texas Code of Criminal
Procedure authorizes a criminal defendant to waive his right to appointed counsel, so
long as the waiver is made “voluntarily and intelligently” and “in writing.” TEX. CODE
CRIM. PROC. ANN. art. 1.051(f). Once the right to self-representation is asserted, the trial
Chande v. State Page 2
judge must inform the defendant about “the dangers and disadvantages of self-
representation,” so that the record will establish that he knows what he is doing and his
choice is made with eyes open. Id. art. 1.051(g). If the court determines that the
criminal defendant has voluntarily and intelligently waived his right to counsel, the
court shall require him to execute a written waiver of counsel which substantially
complies with article 1.051(g). Id.
In the instant case, the trial court appointed Charles W. McDonald to represent
appellant on appeal. And as mentioned above, appellant has filed a motion in this
Court asserting his right to self-representation. Accordingly, we abate and remand this
cause for the trial court to administer the appropriate admonishments under subsection
g of article 1.051 of the Texas Code of Criminal Procedure and to determine whether
appellant competently, intelligently, and voluntarily waives his right to counsel.1 See
TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
The trial court shall conduct the hearing within twenty-eight (28) days after the
date of this order. The trial court clerk and court reporter shall file supplemental
records within forty-two (42) days after the date of this order.
PER CURIAM
1 Other than abating and remanding this cause for further consideration by the trial court, we do
not explicitly rule on any of the filed motions in this case. Accordingly, these motions will be carried
with the case at this time.
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed April 18, 2013
Do not publish
[CR25]
Chande v. State Page 4