Eugenio Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: June 3, 2009
• Docket: 08-07-00248-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ EUGENIO RODRIGUEZ, No. 08-07-00248-CR § Appellant, Appeal from the § v. 109th District Court § THE STATE OF TEXAS, of Andrews County, Texas § Appellee. (TC# 1532) §

§

OPINION ON ABATEMENT

This an appeal from a denial of a motion requesting a DNA and hypnosis test. Appellant

filed a motion for appointment of counsel pursuant to Article 64 of the Texas Code of Criminal

Procedure, requesting a DNA test and a hypnosis test. Judge Gibson was assigned to hear the

motion, and appointed Jason Leach to represent Mr. Rodriguez. Mr. Rodriguez filed a request

for Mr. Leach to withdraw from the case, which also stated that he would represent himself.

Mr. Leach filed a motion to withdraw citing a conflict had arisen between counsel and the

defendant in that the scope of representation did not include filing a motion for hypnotic testing

or other collateral motions. The motion to withdraw was granted. Appellant’s motions for

testing were denied. The court found that Appellant had pled guilty to the offense of murder on

December 7, 1983 and sentenced to life. The conviction was upheld by the appellate court. The

court also found Appellant has received ample review of his DNA testing claim, and the claim

for hypnotic testing was spurious and without merit. In his brief and a previous motion filed before the Appellant’s brief due date, Appellant

requested that an attorney be appointed to represent him. A review of the record shows that at

Appellant’s request, his court-appointed attorney filed a motion to withdraw, which was granted

by the trial court. However, the record does show that Appellant was admonished of the dangers

of proceeding pro se. We have previously held that the trial court must develop evidence, on the

record, establishing that Appellant’s decision to proceed pro se is made knowingly and

intelligently. Marion v. State, 936 S.W.2d 5, 6 (Tex.App.--El Paso 1996, pet. ref’d). As such,

we will abate the appeal to provide the trial court the opportunity to properly admonish Appellant

of the dangers of proceeding pro se. It is also necessary to determine whether Appellant is

entitled to counsel on appeal. The trial court shall enter all necessary orders and/or findings

which may include any appointment of new counsel or findings making the Appellant aware of

the dangers and disadvantages of self-representation and to proceed pro se is knowingly and

intelligently made under Hubbard v. State, 739 S.W.2d 341, 345 (Tex.Crim.App. 1987). The

trial court shall forward its orders and/or findings to the District Clerk of Andrews County,

Texas, on or before July 3, 2009. The District Clerk shall prepare and forward a supplemental

clerk’s record containing the trial court’s orders and/or findings on or before July 20, 2009.

Further the transcription of the hearing shall be prepared, certified, and filed with this Court on or

before July 20, 2009.

We abate the appeal, and remand to the trial court for proceedings consistent with this

opinion.

June 3, 2009 PER CURIAM

-2- Before Chew, C.J., McClure, and Carr, JJ. Carr, J., Not Participating

(Do Not Publish)

-3-