David Duane Dunigan v. State ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00043-CR

David Duane Dunigan,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 32765CR

ABATEMENT ORDER

            David Duane Dunigan was convicted of evading arrest with a vehicle and sentenced to 20 years in prison.  See Tex. Penal Code Ann. § 38.04 (Vernon Supp. 2009).  Trial counsel for Dunigan failed to timely file a notice of appeal, and the appeal was dismissed.  Dunigan v. State, 293 S.W.3d 223 (Tex. App.—Waco 2009, no pet.).  Pursuant to a writ of habeas corpus, the Court of Criminal Appeals allowed Dunigan an out-of-time appeal.  Ex parte Dunigan, No. AP-76,271, 2010 Tex. Crim. App. Unpub. LEXIS 24 (Tex. Crim. App. Jan. 13, 2010).  Thereafter, Dunigan filed a timely notice of appeal, and the trial court appointed new counsel on appeal for Dunigan. 

          Upon receiving a supplemental clerk’s record, this Court discovered a letter in the clerk’s record from Dunigan to his newly appointed attorney asking him to withdraw and informing him that Dunigan wished to represent himself in his appeal.  Also in the supplemental clerk’s record is a “Motion for Self Representation” filed with the trial court. 

            Accordingly, this appeal is abated to the trial court to hold a hearing within 30 days from the date of this order to consider and determine in writing and on the record:  1) whether to remove counsel or allow counsel to withdraw; 2) whether to retain the current appointed counsel or appoint new counsel for Dunigan; 3) whether Dunigan wishes to waive his right to counsel; and 4) whether Dunigan may represent himself on appeal, if he so wishes.  If Dunigan wishes to waive his right to counsel and represent himself on appeal, the waiver should be made knowingly and intelligently, and he should be warned of the dangers and disadvantages accompanying such waiver.  Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002).  A waiver of the right to counsel must be in writing and must substantially comply with article 1.051(g) of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2009). 

            Supplemental Clerk’s and Reporter’s Records containing the trial court’s written and oral findings and rulings are ordered to be filed within 45 days from the date of this order.

PER CURIAM

Before Chief Justice Gray,

Justice Reyna, and

            Justice Davis

Appeal abated

Order issued and filed April 21, 2010

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the State’s version of events.  See Parker v. State, 119 S.W.3d 350, 355 (Tex. App.—Waco 2003, pet. ref’d).  We must defer to the jury in its resolution of alternative theories of the case.  Vasquez, 67 S.W.3d at 236.  Thus, we cannot conclude that the State’s evidence is too weak to support a guilty verdict nor is the appellant’s contravening evidence so strong as to preclude the beyond-a-reasonable-doubt standard from being met.  See Zuniga, 144 S.W.3d at 484-85.

With regard to the State’s use of prior convictions as evidence in the crime charged and in the sentencing as an habitual offender, this is not an issue which can be addressed in a factual sufficiency review.  See Hanks v. State, 137 S.W.3d 668, 671 (Tex. Crim. App. 2004).  A factual sufficiency review is appropriate only as to the sufficiency of the State’s evidence for each element of the crime charged, but not as to the admissibility of such evidence.  Id.

          Accordingly, we overrule Mosley’s sole issue of factual insufficiency of the evidence and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 11, 2006

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