John Tremaine Jones v. State

• Court: Court of Appeals of Texas
• Decided: January 10, 2018
• Docket: 10-17-00107-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00107-CR

JOHN TREMAINE JONES, Appellant v.

THE STATE OF TEXAS, Appellee

From the 66th District Court Hill County, Texas Trial Court No. 39,241

ABATEMENT ORDER

Appellant, John Termaine Jones, filed a motion to dismiss his appointed counsel

on appeal. He asserts that he has had no communication with his attorney and would

like the attorney removed from the appeal. In this motion, appellant does not seek the

appointment of new counsel or to represent himself. See Faretta v. California, 422 U.S. 806,

95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco

Sept. 7, 2005, ord.).

Nevertheless, because the Court does not have jurisdiction to grant the relief

requested, this appeal is ABATED to the trial court to have a hearing, within 21 days from the date of this ORDER, to determine whether appointed counsel should be removed for

good cause, see TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (West 2009) and whether:

1. appellant seeks to waive his right to counsel and represent himself on appeal; or

2. appellant seeks the appointment of new/other counsel.

If appellant seeks the appointment of new/other counsel, the trial court must

determine if that motion should be granted or denied. If it is to be granted, new counsel

must be appointed. See id. art. 1.051(d) (West 2005). If the motion is denied, appellant

will be required to proceed on appeal with counsel already appointed. See Stearnes v.

Clinton, 780 S.W.2d 216, 221 (Tex. Crim. App. 1989) (indigent defendant does not have

the right to the appointment of a particular attorney). However, if appellant seeks the

dismissal of existing counsel and seeks to be allowed to represent himself on appeal,

which is his statutory right, see TEX. CODE CRIM. PROC. ANN. art 1.051(f) (West 2005), the

trial court must advise the appellant in accordance with Faretta as applicable to the

appellate process. See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562

(1975); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco Sept. 7, 2005, ord.).

Supplemental clerk’s and reporter’s records are ORDERED to be filed within 28

days from the date of this Order.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed January 10, 2018

Jones v. State Page 2