COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: David Michael Starks v. The State of Texas

Appellate case number: 01-13-00830-CR

Trial court case number: 1397088

Trial court: 178th District Court of Harris County

Appellant, David Michael Stark, has filed a request to dismiss his appointed counsel and 

proceed pro se in this appeal. 

We review requests for self-representation in appeals from criminal convictions on a 

case-by-case basis, considering the best interests of both the appellant and the State. This is 

because the Supreme Court held that there is no federal constitutional right to represent oneself 

on appeal. Martinez v. Court of Appeal, 528 U.S. 152, 163, 120 S. Ct. 684, 692 (2000); Cormier 

v. State, 85 S.W.3d 496, 498 (Tex. App.—Houston [1st Dist.] 2002, order). See also Hubbard v. 

State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987)(remanding to appellate court to direct a trial 

court hearing admonishing appellant of the dangers and disadvantages of self-representation, and 

development of evidence as to whether an election to proceed pro se is knowingly and 

intelligently made).

Accordingly, we require findings from the trial court on this matter and must abate the 

appeal and remand the case for a hearing at which appellant shall be present in person.1 If 

appellant is not incarcerated, but fails to appear at the hearing after having been notified to do so, 

or after reasonable attempts to notify him have been made, then the trial court should make that 

finding and send it to this Court. If appellant is present for the hearing, we direct the trial court 

to make appropriate findings on these issues:

(1) whether appellant still wishes to prosecute the appeal and, if so,

(2) whether Robert Wicoff should be permitted to withdraw as counsel;

 

1

If appellant is now incarcerated, he may appear by closed circuit video teleconference. 
(3) whether appellant wishes to represent himself after having been admonished 

by the trial court of the dangers and disadvantages of doing so;

(4) whether the trial court finds that it would not be in the best interests of 

appellant and the State for him to do so; and

(5) if appellant does not wish to represent himself, or if the trial court finds that 

self-representation would not be in the best interests of appellant and the 

State, whether he is

(a) indigent, in which case the trial court should continue the appointment 

of counsel Wicoff, or another appointed counsel or if appellant is

(b) not indigent, the trial court should determine whether appellant has 

retained counsel to file a brief and represent him on appeal, and, if so, 

the name, address, telephone number, and State Bar number of retained 

counsel. (See TEX. R. APP. P. 38.8(b)(4).)

The trial court shall have a court reporter record the hearing. The trial court’s written 

findings and recommendations shall be sent to this Court no later than 60 days from the date of 

this order.

This appeal is 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 trial court’s 

findings and recommendations are filed in this Court. The court coordinator of the trial court 

shall set a hearing date and notify the parties and the Clerk of this Court of the scheduled hearing 

date.

It is so ORDERED.

Judge’s signature: /s/ Harvey Brown

X Acting individually  Acting for the Court

Date: November 8, 2013