Scott Eldred Coalwell v. State

• Court: Court of Appeals of Texas
• Decided: January 28, 2020
• Docket: 10-18-00227-CR
• Status: Published

Opinion

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