Robin Earl Frazier v. the State of Texas ( 2022 )

Motion Granted; Abatement Order filed December 6, 2022
In The
Fourteenth Court of Appeals
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NO. 14-22-00472-CR
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ROBIN EARL FRAZIER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1739706
ABATEMENT ORDER
Appellant is represented by appointed counsel, Ted Wood. On November
18, 2022, counsel filed a motion to abate this appeal for a hearing in the trial court
to consider appellant’s request to dismiss his appointed attorney and proceed pro se
on appeal. When a criminal appellant waives his right to appointed counsel, he
waives many traditional benefits associated with the right to counsel. Before an
appellant may dismiss appointed counsel and proceed pro se, the waiver must be
“knowingly and intelligently” made. See Faretta v. California, 422 U.S. 806(1975).
In Martinez v. California, 528 U.S. 152 (2000), the United States Supreme
Court reaffirmed its holding that criminal defendants have a constitutional right to
conduct their own defense at trial, if they voluntarily and intelligently elect to do
so; however, the Court then held that criminal defendants have no federal
constitutional right to represent themselves on direct appeal from a conviction. 528
U.S. at 154-62. The Court added, however, that appellate courts may, in the
exercise of their discretion, allow a defendant to proceed pro se on appeal based on
the best interests of the defendant and the government. Id. at 161-62. In other
words, criminal defendants have no federal constitutional right to self-
representation on direct appeal, but states are not precluded from recognizing such
a right under their own constitutions. Id.This court has adopted the standard established in Martinez, and we review
requests to proceed pro se on a case-by-case basis considering the best interests of
both the criminal appellant and the State. See Hadnot v. State, 14 S.W.3d 348, 349
(Tex. App. Houston [14th Dist.] 2000) (order). According to counsel, appellant is
dissatisfied with the brief filed on his behalf, wants counsel dismissed as his
lawyer on appeal, and prefers to proceed pro se on appeal. We grant the motion
and issue the following order.
WE ORDER the Judge of the 232nd District Court, to immediately conduct
a hearing at which appellant, appellant’s attorney, and state’s counsel shall be
present to determine: (1) whether appellant desires to prosecute his appeal; (2)
whether appellant wishes to discharge his appointed attorney and proceed with his
appeal pro se; (3) whether the waiver of assistance of counsel is made voluntarily,
knowingly and intelligently; (4) whether appellant’s decision to proceed pro se is
in the best interest of appellant and of the State; and (5) whether appellant is fully
aware of the dangers and disadvantages of self-representation. See Funderburg v.
State, 717 S.W.2d 637 (Tex. Crim. App. 1986); Webb v. State, 533 S.W.2d 780(Tex. Crim. App. 1976); Trevino v. State, 555 S.W.2d 750 (Tex. Crim. App. 1977).
WE FURTHER ORDER the Judge of the 232nd District Court to have a
court reporter present to prepare a reporter’s record. The reporter’s record, and a
supplemental clerk’s record containing the trial court’s findings, shall be filed with
the clerk of this court on or before January 5, 2023.
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
trial court’s findings and recommendations are filed in this court. The court will
also consider an appropriate motion to reinstate the appeal filed by either party, or
the court may reinstate the appeal on its own motion. It is the responsibility of any
party seeking reinstatement to request a hearing date from the trial court and to
schedule a hearing in compliance with this court’s order. If the parties do not
request a hearing, the court coordinator of the trial court shall set a hearing date
and notify the parties of such date.
PER CURIAM
Panel Consists of Justices Wise Jewell, and Poissant.