EDWARD ESPARZA v. THE STATE OF TEXAS

OF TEXAS

NO. PD-1616-07

EDWARD ESPARZA

v.

THE STATE OF TEXAS

ORDER TO DETERMINE REPRESENTATION BY COUNSEL

HARRIS COUNTY

Per curiam.

O R D E R

Appellant appealed the trial court's order denying DNA testing in cause number 9406505, in the 263rd District Court of Harris County. The court of appeals affirmed the judgment of the trial court. Esparza v. State, No. 01-06-00043-CR (Tex. App. C Houston, delivered August 30, 2007). Appellant filed a Pro Se petition for discretionary review which was granted by this court on February 6, 2008. Appellant is entitled to representation before this court at this time. See Article 1.051(a)(d)(2), V.A.C.C.P. We ordered the trial court to conduct a hearing in accord with the provisions of Article 1.051 concerning Appellant's representation by counsel. At the hearing Appellant stated that he wished to represent himself, but the trial court failed to follow the provisions of Art. 1.051(f) & (g), to determine if Appellant's expressed desire to waive counsel was voluntary and intelligent. Therefore, we order the trial court to determine if Appellant desires to waive counsel, and if so, to determine whether such waiver is voluntary and intelligent in accord with Art. 1.051 (f) & (g). If Appellant desires counsel, the trial court must determine whether Appellant is indigent. If Appellant is indigent the court shall appoint an attorney to represent Appellant before this court in regard to PDR No. PD-1616-07, in accord with Articles 1.051 and 26.04, V.A.C.C.P.

Any hearing conducted pursuant to this order shall be held within 30 days of the date of this order. The trial court's order appointing counsel, any findings of fact, affidavits, or transcription of the court reporter's notes and any other supplementation of the record shall be returned to this court within 45 days of the date of this order.

IT IS SO ORDERED THIS THE 2nd day of April, 2008.

DO NOT PUBLISH