Danny Wayne Alcoser v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-18-00032-CR ________________________

DANNY WAYNE ALCOSER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 19th District Court McLennan County, Texas Trial Court No. 2016-1261-C1 (Counts I, II & III); Honorable Ralph T. Strother, Presiding

May 19, 2022

ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and PIRTLE and PARKER, JJ.

By opinion and judgment dated December 20, 2019, this court reversed three

convictions of Appellant, Danny Wayne Alcoser, related to a domestic violence incident

based on improper jury instructions which this court found had caused him egregious

harm (Issues Two and Three). See Alcoser v. State, 596 S.W.3d 320, 338 (Tex. App.—

Amarillo 2019). On the State’s petition for discretionary review, the Court of Criminal Appeals reversed this court’s decision and remanded the case for further consideration

of Appellant’s remaining issues on whether the trial court abused its discretion in denying

a mistrial (Issue One) and whether the evidence is insufficient to support his convictions

(Issue Four). See Alcoser v. State, __ S.W.3d __, No. PD-0166-20, 2022 Tex. Crim. App.

LEXIS 186 (Tex. Crim. App. March 30, 2022).

Following remand to this court from the Texas Court of Criminal Appeals, Appellant

filed a pro se Motion to Withdraw Appellate Counsel and to Self-Represent. By order

dated May 4, 2022, this court denied that motion and explained that withdrawal of

appointed counsel was a matter within the purview of the trial court’s authority. See TEX.

CODE CRIM. PROC. ANN. art 26.04(j). By our order, Appellant was advised that self-

representation on direct appeal was reviewed on a case-by-case basis, keeping in mind

the best interests of the appellant, the State, and the administration of justice.

Now pending before this court are two subsequent motions filed by Appellant.

First, is his Motion for Rehearing/Reconsideration, by which he contends a remand to the

trial court is required for consideration of an out-of-time motion for new trial to address an

“unfiled amended motion for new trial allegedly filed, but yet to be found on any docket

sheet.” By this motion he accuses his court-appointed counsel of being untruthful and

claims he “rail-roaded [sic] his rights into the ground.” Second, Appellant has filed a

Motion for Stay of Appellate Proceedings in which he “give[s] his NOTICE OF INTENT”

to file a petition for writ of mandamus and writ of prohibition to “force his Constitutionally

protected rights.” At the heart of his threat is his allegation that a sufficiency review by

this court pursuant to the mandate from the Texas Court of Criminal Appeals would be

conducted without a complete record which would deprive him of his due process rights.

2 In order to curtail further pro se filings, we now abate this appeal and remand the

cause to the trial court for consideration of his request and to determine whether his court-

appointed counsel should be removed and replaced or to admonish Appellant on the

consequences of self-representation. We note that at this stage in Appellant’s appeal,

this court is under a directive from the Texas Court of Criminal Appeals to address only

the two remaining issues from Appellant’s original brief. Thus, any additional issues

raised, whether by newly appointed counsel or by Appellant, if permitted to represent

himself, would not be considered by this court.

On remand, the trial court shall conduct a hearing by whatever means necessary

to address Appellant’s concerns. Should it be determined that Appellant is entitled to self-

representation on direct appeal or is entitled to new appointed counsel, the trial court shall

provide the clerk of this court with the name, email address, telephone number, and State

Bar of Texas identification number of new counsel, if any. The trial court shall execute

findings of fact and conclusions of law, and shall cause its findings, conclusions, and any

necessary orders to be included in a supplemental clerk's record to be filed with the clerk

of this court on or before July 29, 2022.

Appellant’s Motion for Rehearing/Reconsideration is denied, and his Motion for

Stay of Appellate Proceedings is rendered moot. 1

Per Curiam

Do not publish.

1 We note that abatement of an appeal suspends all appellate deadlines.