Harold Wayne Cherry v. State

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Harold Wayne Cherry v. The State of Texas
Appellate case number: 01-12-00763-CR
Trial court case number: 65798
Trial court: 23rd District Court of Brazoria County
The Clerk of the Court has examined the clerk’s record and has found that it does not
comport with the Texas Rules of Appellate Procedure, in that it does not include a copy of the
trial court’s certification of appellant=s right of appeal. See TEX. R. APP. P. 25.2(d), 34.5(a)(12).
This order constitutes notice to all parties of the defective certification. See TEX. R. APP. P. 37.1.
Further, although appellant timely appealed on August 10, 2012, no attorney has
appeared in this Court on appellant’s behalf and appellant has provided no documentation
regarding his appellate representation. Appellant was represented by retained counsel in the trial
court, but counsel was permitted to withdraw by the trial court. See Whitehead v. State, 130
S.W.3d 866, 879 (Tex. Crim. App. 2004); Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App.
1988). Nor does the record contain any indication that appellant has been admonished regarding
the dangers and disadvantages of proceeding pro se or made an intelligent and voluntary waiver
of the right to counsel on appeal. See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f) (West
Supp. 2012); Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App. 1992); Hawkins v.
State, 613 S.W.2d 720, 722–23 (Tex. Crim. App. 1981); cf. TEX. CODE CRIM. PROC. ANN. art.
1.051(g). Therefore, the record is unclear as to whether appellant intends to hire new counsel or
to proceed pro se after voluntarily and intelligently waiving the right to counsel.
Consequently, we abate the appeal and remand the cause to the trial court for further
proceedings. The trial court shall immediately conduct a hearing at which the appellant and a
representative of the Harris County District Attorney’s Office shall be present. Appellant shall
be present for the hearing in person or, if appellant is incarcerated, at the trial court’s discretion,
appellant may participate in the hearing by closed-circuit video teleconferencing. 1
1 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
We direct the trial court to:
1) Execute a certification of appellant’s right to appeal indicating whether or not
appellant has the right to appeal;
2) Determine whether appellant still wishes to pursue this appeal;
3) Determine whether appellant is now indigent;
a. If so, appoint appellate counsel at no expense to appellant;
b. If not, admonish appellant regarding the dangers and disadvantages of
self-representation, and:
i. determine whether appellant is knowingly and intelligently
waiving his right to counsel and, if so, obtain a written waiver of
the right to counsel; or,
ii. if appellant does not wish to proceed pro se, provide a deadline by
which appellant must hire an attorney, which shall be no later than
30 days from the date of the hearing;
4) Make any other findings and recommendations the trial court deems appropriate;
and
5) Enter written findings of fact, conclusions of law, and recommendations as to
these issues, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P. 25.2(a)(2),
(d), 34.5(a)(12), (c)(2), 37.1; Goffney, 843 S.W.2d at 584–85; Axel, 757 S.W.2d at 374; Hawkins,
613 S.W.2d at 722–23; cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter, or court recorder, record the hearing. The trial
court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings,
recommendations, and orders, and the certification of appellant’s right to appeal, with this Court
no later than 25 days from the date of this order. See TEX. R. APP. P. 34.5(c). The court reporter
is directed to file the reporter’s record of the hearing no later than 25 days from the date of this
order. If the hearing is conducted by video teleconference, an electronic copy of the hearing
shall be filed in this Court no later than 25 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 that comply with our order are filed with the Clerk of this
Court. The court coordinator of the trial court shall set a hearing date and notify the parties.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
 Acting individually  Acting for the Court
Date: December 19, 2012
State or appellant. On request of appellant, appellant and any counsel appellant may have
shall be able to communicate privately without being recorded or heard by the trial court
or the attorney representing the State.