NUMBER 13-13-00526-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HERMAN LEE KINDRED, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Jackson County, Texas.
ORDER ABATING APPEAL
Before Chief Justice Valdez and Justices Perkes and Longoria
Order Per Curiam
This cause is before the Court on appellant’s motions for appointment of counsel
and his waiver of self-representation. We have abated this cause on two previous
occasions. In February, this Court abated and remanded this appeal to the trial court to
determine if appellant was indigent and entitled to appointed counsel on appeal. In
March, the trial court found that appellant as indigent and entitled to appointed counsel,
but that:
The Defendant is of sound mind and had a factual and rational
understanding of the proceedings.
The Defendant does not ask that appellate counsel be appointed to
represent Defendant in prosecuting his appeal or to assist defendant in the
prosecution of his appeal pro se.
The Defendant expressly stated that he did not want the court to
appoint appellate counsel to prosecute Defendant's appeal nor did
Defendant wish for the court to appoint appellate counsel to assist
defendant in the prosecution of his appeal pro se.
The Defendant represented to the court that he was familiar with the
appellate rules and procedures governing his appeal. The Defendant
represented to the court that he was familiar with the law applicable to his
appeal. The Defendant represented to the court that he had previously
represented himself in another appeal and felt that he was capable of
adequately prosecuting his appeal, pro se.
The Defendant knowingly, intentionally and expressly waived his
right to appointed appellate counsel to prosecute his appeal and to assist
Defendant in prosecution of his appeal, pro se.
In May, we once again abated and remanded this appeal to the trial court in
response to a motion filed by appellant stating that the appellate record was incomplete.
Upon remand, the trial court concluded, after a detailed hearing including appellant’s
participation, that the record was complete. At that hearing, appellant requested to have
appellate counsel appointed. The following colloquy ensued:
THE COURT: You have already been examined on that and you have said
that you did not want an attorney, Mr. Kindred. That matter is not
before me at this time.
THE DEFENDANT: Well, it's already -- it's been filed right here.
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THE COURT: Mr. Kindred, that issue has previously been addressed and
you've said that you did not want an attorney.
THE DEFENDANT: Well, I'm telling you right now I want an attorney.
THE COURT: Your motion and request is untimely, Mr. Kindred.
THE DEFENDANT: How is it untimely?
THE COURT: You are your attorney.
THE DEFENDANT: Well, I -- I got a right to an attorney.
THE COURT: Actually you don't, Mr. Kindred, at this point. You have --
despite the Court's admonition, you have represented to me under
oath that you did not want an attorney and that you were competent
to handle your own appeal –
THE DEFENDANT: Well, I'm requesting now for an attorney.
THE COURT: -- and the fact of the matter is that this is the same tactic that
you took during the trial –
THE DEFENDANT: Well, I'm requesting for an attorney.
THE COURT: -- you asked for -- you wanted your attorney withdrawn and
then you said you did not want an attorney, you wanted to represent
yourself, and then once I granted your relief, then you made an oral
motion in court during the trial phase of this case then asking for an
attorney. I find that your request at this time to ask --asking for a
court-appointed attorney is in bad faith and your request is denied.
THE DEFENDANT: Okay. That's fine.
The trial court’s findings in response to the second abatement regarding the record
do not include any findings or conclusions based on appellant’s new request for counsel
on appeal. Appellant, however, orally attempted to revoke his waiver of counsel in the
trial court, and filed a corresponding motion on appeal.
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Although the Sixth Amendment right to counsel is absolute, the exercise of that
right is subject to the necessities of sound judicial administration. United States v. Arlen,
252 F.2d 491, 494 (2d Cir.1958). Trial courts have the duty and discretion to maintain
the orderly flow and administration of judicial proceedings, including the exercise of a
defendant's right to counsel. See Faretta v. California, 422 U.S. 806, 834 n.46 (1975).
United States v. Taylor, 933 F.2d 307, 311 (5th Cir.1991). Stated succinctly, “The control
of the business of the [trial] court is vested in the sound discretion of the trial judge.”
Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App.1996). If the right to counsel is
waived, the waiver can ordinarily be withdrawn, and the right to counsel reasserted.
United States v. Pollani, 146 F.3d 269, 273 (5th Cir.1998); Taylor, 933 F.2d at 311; see
Marquez, 921 S.W.2d at 222 n. 4. But, the defendant does not have the right to
repeatedly alternate his position on the right to counsel and thereby delay trial or
otherwise obstruct the orderly administration of justice. Pollani, 146 F.3d at 273; Taylor,
933 F.2d at 311; Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App.1976); Medley v.
State, 47 S.W.3d 17, 23 (Tex. App.—Amarillo 2000, pet. ref’d).
Given the foregoing sequence of events and the constitutional dimensions of the
right to counsel, we ABATE and REMAND this matter to the trial court for further findings
of fact and conclusions of law regarding whether appellant’s waiver of the right to
appellate counsel has been revoked, whether the right to counsel has been reasserted,
and whether, given all circumstances, appellant is entitled to the appointment of counsel.
In so ruling, we caution the parties that this Court is seeking to ensure that due process
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is served; however, we caution the parties that we do not take lightly issues regarding
alleged delay or obstruction of the appellate process.
Upon remand, the trial court is therefore directed to immediately cause notice to
be given and conduct a hearing to: (1) determine whether appellant’s waiver of the right
to appellate counsel has been revoked, whether the right to counsel has been reasserted,
and whether, given all circumstances, appellant is entitled to the appointment of counsel;
(2) appoint counsel to represent appellant on appeal if it is determined that no delay in
the appeal or obstruction of the orderly administration of justice will result therefrom; (3)
make and file appropriate findings of fact and conclusions of law and cause them to be
included in a clerk's record; (4) cause the hearing to be transcribed and included in a
reporter's record; and (5) have these records forwarded to the Clerk of this Court within
thirty days from the date of this order. If the trial court requires additional time to comply,
the trial court should so notify the Clerk of this Court. Appellant’s motions for the
appointment of counsel and motions pertaining to the brief shall be CARRIED WITH THE
CASE pending receipt and review of this final record from the trial court.
IT IS SO ORDERED.
PER CURIAM
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
24th day of June, 2014.
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Herman Lee Kindred v. State
Combined Opinion