Scott Eldred Coalwell v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00227-CR
SCOTT ELDRED COALWELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2015-937-C1
ABATEMENT ORDER
On January 6, 2020, this Court received a letter, dated December 13, 2019, from
Appellant Scott Eldred Coalwell.1 In his letter, Coalwell states that he was unhappy with
his appointed appellate counsel and therefore “fired” him. Coalwell further appears to
be seeking to waive his right to counsel pursuant to article 1.051 of the Code of Criminal
1 The letter lacks proof of service as required by the Texas Rules of Appellate Procedure. A copy of all
documents presented to the Court must be served on all parties to the proceeding and must contain proof
of service. See TEX. R. APP. P. 9.5. However, to expedite this matter, the Court implements Rule 2 to suspend
Rule 9.5’s proof-of-service requirement. See id. R. 2. Furthermore, because all parties may access the letter
through the Court’s website, we do not include a copy of Coalwell’s letter with this Order.
Procedure so that he, acting pro se, may voluntarily dismiss this appeal. See TEX. CODE
CRIM. PROC. ANN. art. 1.051(f)-(g); TEX. R. APP. P. 42.2(a).
An indigent criminal defendant has a constitutional right to appointed counsel in
a first appeal of right. Scott v. State, 80 S.W.3d 184, 197 (Tex. App.—Waco 2002, pet. ref’d)
(citing Douglas v. California, 372 U.S. 353, 356-57, 83 S. Ct. 814, 816-17, 9 L. Ed. 2d 811 (1963)).
The appointment of counsel for an indigent defendant in a criminal case is under the sole
authority of the trial court. See Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.—Waco
1999, order) (per curiam); TEX. CODE CRIM. PROC. ANN. art. 26.04(a); cf. Meza v. State, 206
S.W.3d 684, 688 (Tex. Crim. App. 2006). A defendant does not have the right to his choice
of appointed counsel, and unless he waives his right to counsel and chooses to represent
himself, or shows adequate reason for appointment of new counsel, he must accept the
counsel appointed by the trial court. Rodriguez v. State, 491 S.W.3d 18, 33 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d).
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” (footnote omitted)). 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).
Coalwell v. State Page 2
Subsection f of article 1.051 of the 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 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 that his choice is made with eyes
open. See 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 light of Coalwell’s letter, we abate this cause to the trial court for a hearing to
determine whether Coalwell intelligently wishes to (1) continue being represented by
appointed appellate counsel or (2) represent himself in this appeal. If Coalwell
intelligently wishes to represent himself in this appeal, the trial court must administer the
appropriate admonishments under subsection g of article 1.051 of the Code of Criminal
Procedure and determine whether Coalwell voluntarily and intelligently waives his right
to counsel on appeal. If the trial court determines that Coalwell voluntarily and
intelligently waives his right to counsel, the trial court shall require Coalwell to execute
a written waiver of counsel which substantially complies with subsection g of article
1.051.
The trial court shall conduct the hearing within 21 days after the date of this Order.
The trial court clerk and court reporter shall file supplemental records within 35 days
after the date of this Order.
Coalwell v. State Page 3
If Coalwell still wants to “withdraw” this appeal after this appeal is reinstated, a
motion to dismiss complying with Rule of Appellate Procedure 42.2(a) may then be filed
with this Court. See TEX. R. APP. P. 42.2(a).
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Appeal abated
Order issued and filed January 28, 2020
RWR
Coalwell v. State Page 4