Gerald Hayes v. State ( 2012 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: Gerald Allen Hayes v. The State of Texas
Appellate case number: 01-09-00437-CR
Trial court case number: 1178372
Trial court: 351st District Court of Harris County
On February 24, 2011, appellant’s appointed counsel, Scott Ramsey, filed a motion to
withdraw and to allow appellant to proceed pro se. Ramsey noted that appellant had “stridently
demanded to be allowed to review, edit, and supplement any brief filed by appellant counsel,”
and “further maintained that the trial record is incomplete.” According, this Court abated the case
and ordered the trial court to properly admonish appellant of the dangers and disadvantages of
self-representation and to determine whether appellant should be permitted to represent himself.
The trial court did so, and, on August 18, 2011, this Court reinstated the appeal, granted Scott
Ramsey’s motion to withdraw, and allowed appellant to proceed pro se. We also ordered
appellant’s brief filed within 30 days of the date of the order reinstating the appeal.
Appellant did not file a brief. Instead, he claimed that several documents were missing
from the court’s record. Accordingly, on November 15, 2011, this Court abated the appeal for a
second time and ordered the trial court to determine whether the appellate record was complete.
On January 18, 2012, the trial court filed findings of fact and conclusions of law
indicating that the appellate record was, in fact, complete.
Still appellant has not filed a brief. He continues to urge that the trial record is
incomplete, and that he needs to supplement the record and additional time to file a brief.
The Court has also had difficulty communicating with Appellant, as appellant has been
moved from the prison unit given as his address to this Court on at least one occasion.
There is no right to self-representation on direct appeal from a criminal conviction. See
Crawford v. State, 136 S.W.3d 417, 418 (Tex. App.—Corpus Christi 2004, order); Cormier v.
State, 85 S.W.3d 496, 498 (Tex. App.—Houston [1st Dist.] 2002, order); Hadnot v. State, 14
S.W.3d 348, 350 (Tex. App.—Houston [14th Dist.] 2000, order). We review requests for self-
representation in appeals from criminal convictions on a case-by-case basis, considering the best
interests of the appellant, the State, and the administration of justice. See Crawford, 136 S.W.3d
at 418; Cormier, 85 S.W.3d at 498; Hadnot, 14 S.W.3d at 350.
Here, neither appellant’s own interest, nor the interest of the administration of justice are
being furthered by continuing to allow appellant to represent himself on appeal. This case is
over three years old and appellant still claims to be unable to file a brief because of an
incomplete record, despite the trial court’s finding that the record is complete. Additionally, the
difficulty of communicating with appellant suggests that appointing counsel to represent him in
this case would be in the best interest of all parties.
Accordingly, we remand the case to the trial court to appoint appellate counsel at no
expense to appellant. See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1) (granting right
to representation by counsel in criminal matters; entitling indigent defendant in criminal
proceeding to appointed counsel; and entitling indigent defendant to appointed counsel for
appeal to court of appeals); 26.04(p) (“A defendant who is determined by the court to be indigent
is presumed to remain indigent for the remainder of the proceedings in the case unless a material
change in the defendant’s financial circumstances occurs.”).
The trial court shall order the district clerk to file a supplemental clerk’s record
containing the order of appointment in this Court no later than August 6, 2012.
Counsel’s brief will be due 30 days after the date the trial court makes its appointment,
regardless of whether this Court has yet reinstated the appeal.
The appeal remains abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record is filed in this Court.
It is so ORDERED.
Judge’s signature: /s/ Chief Justice Sherry Radack
 Acting individually  Acting for the Court
Date: July 26, 2012