COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Harold Wayne Cherry v. The State of Texas

Appellate case number: 01-12-00763-CR

Trial court case number: 65798

Trial court: 23rd District Court of Brazoria County

The Clerk of the Court has examined the clerk’s record and has found that it does not 

comport with the Texas Rules of Appellate Procedure, in that it does not include a copy of the 

trial court’s certification of appellant=s right of appeal. See TEX. R. APP. P. 25.2(d), 34.5(a)(12). 

This order constitutes notice to all parties of the defective certification. See TEX. R. APP. P. 37.1. 

Further, although appellant timely appealed on August 10, 2012, no attorney has 

appeared in this Court on appellant’s behalf and appellant has provided no documentation 

regarding his appellate representation. Appellant was represented by retained counsel in the trial 

court, but counsel was permitted to withdraw by the trial court. See Whitehead v. State, 130 

S.W.3d 866, 879 (Tex. Crim. App. 2004); Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 

1988). Nor does the record contain any indication that appellant has been admonished regarding 

the dangers and disadvantages of proceeding pro se or made an intelligent and voluntary waiver 

of the right to counsel on appeal. See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (f) (West 

Supp. 2012); Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App. 1992); Hawkins v. 

State, 613 S.W.2d 720, 722–23 (Tex. Crim. App. 1981); cf. TEX. CODE CRIM. PROC. ANN. art. 

1.051(g). Therefore, the record is unclear as to whether appellant intends to hire new counsel or 

to proceed pro se after voluntarily and intelligently waiving the right to counsel.

Consequently, we abate the appeal and remand the cause to the trial court for further 

proceedings. The trial court shall immediately conduct a hearing at which the appellant and a 

representative of the Harris County District Attorney’s Office shall be present. Appellant shall 

be present for the hearing in person or, if appellant is incarcerated, at the trial court’s discretion, 

appellant may participate in the hearing by closed-circuit video teleconferencing.1

 

1 Any such teleconference must use a closed-circuit video teleconferencing system that 

provides for a simultaneous compressed full motion video and interactive communication 

of image and sound between the trial court, appellant, and any attorneys representing the 
We direct the trial court to:

1) Execute a certification of appellant’s right to appeal indicating whether or not 

appellant has the right to appeal;

2) Determine whether appellant still wishes to pursue this appeal;

3) Determine whether appellant is now indigent;

a. If so, appoint appellate counsel at no expense to appellant;

b. If not, admonish appellant regarding the dangers and disadvantages of 

self-representation, and:

i. determine whether appellant is knowingly and intelligently 

waiving his right to counsel and, if so, obtain a written waiver of 

the right to counsel; or,

ii. if appellant does not wish to proceed pro se, provide a deadline by 

which appellant must hire an attorney, which shall be no later than 

30 days from the date of the hearing;

4) Make any other findings and recommendations the trial court deems appropriate; 

and

5) Enter written findings of fact, conclusions of law, and recommendations as to 

these issues, separate and apart from any docket sheet notations.

See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04; TEX. R. APP. P. 25.2(a)(2), 

(d), 34.5(a)(12), (c)(2), 37.1; Goffney, 843 S.W.2d at 584–85; Axel, 757 S.W.2d at 374; Hawkins, 

613 S.W.2d at 722–23; cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g). 

The trial court shall have a court reporter, or court recorder, record the hearing. The trial 

court clerk is directed to file a supplemental clerk’s record containing the trial court’s findings, 

recommendations, and orders, and the certification of appellant’s right to appeal, with this Court 

no later than 25 days from the date of this order. See TEX. R. APP. P. 34.5(c). The court reporter 

is directed to file the reporter’s record of the hearing no later than 25 days from the date of this 

order. If the hearing is conducted by video teleconference, an electronic copy of the hearing 

shall be filed in this Court no later than 25 days from the date of this order.

The 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 supplemental 

clerk’s record and reporter’s record that comply with our order are filed with the Clerk of this 

Court. The court coordinator of the trial court shall set a hearing date and notify the parties.

It is so ORDERED.

Judge’s signature: /s/ Harvey Brown

 Acting individually  Acting for the Court

Date: December 19, 2012

 

State or appellant. On request of appellant, appellant and any counsel appellant may have 

shall be able to communicate privately without being recorded or heard by the trial court 

or the attorney representing the State.