SELWYN DAVIS v. THE STATE OF TEXAS (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,796

SELWYN PRESTON DAVIS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. D-1-DC-06-904119

IN THE 390TH DISTRICT COURT

TRAVIS COUNTY

Per curiam.

ORDER

The above-styled and numbered cause is pending before this Court as a result of appellant's capital murder conviction and resulting sentence of death in the 390th District Court of Travis County, Cause No. D-1-DC-06-904119, styled The State of Texas v. Selwyn Preston Davis. This Court will abate this appeal on its own motion and remand the cause to the trial court.

In a case in which the death penalty has been assessed, direct appeal to this Court is automatic. Tex. Code Crim. Proc. Art. 37.071 § 2(h). Thus, an appellant must either be represented by counsel on direct appeal or he must proceed pro se. The record reflects that the trial court has appointed counsel for appellant on direct appeal. A letter from appellant indicates that he wants to effectively waive his right to counsel by "waiving" his appeal. However, he does not assert his right to proceed pro se. Given this record, we order the trial court to answer the following questions on the record:

1. Does appellant understand that appellate review of a death sentence is automatic under the law and cannot be waived?

2. Understanding that a direct appeal is automatic under the law, does appellant want to be represented by an attorney on his direct appeal or does he knowingly and intelligently waive this right and choose to represent himself?

3. If appellant chooses to represent himself, has he been advised of the dangers and disadvantages of self-representation? See, e.g., Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991).

On the other hand, the law does not require the filing of an application for a writ of habeas corpus. The record reflects that the trial court has also appointed counsel for the purpose of filing an application for writ of habeas corpus on appellant's behalf. Given the record, we order the trial court to answer these additional questions on the record:

1. Does appellant wish to file an application for habeas corpus?

2. If appellant does not wish to file a habeas application, has he knowingly and intelligently made the decision not to file?

3. If appellant does wish to pursue habeas relief, does he wish to be represented by counsel or does he knowingly and intelligently waive counsel and choose to represent himself?

After the answers to these questions have been determined, the trial court is directed to prepare the responses and any other appropriate findings of fact and conclusions of law necessary to the resolution of the questions. The trial court clerk must then prepare, certify, and file in this Court a supplemental clerk's record containing the document or documents. This supplemental clerk's record is to be filed within 30 days of the date of this order.

IT IS SO ORDERED THIS THE 19th DAY OF MARCH, 2008.

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