NUMBER 13-13-00479-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
LARRY GREEN, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
ORDER OF ABATEMENT
Before Chief Justice Valdez and Justices Benavides, and Longoria
Order Per Curiam
Counsel for appellee, Larry Green, has filed a motion to withdraw as counsel in this
cause. Appellee’s counsel has notified that ethical considerations prevent his further
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representation of appellee and that appellee has written a letter stating he no longer
wishes counsel to represent him.
A defendant does not have the right to choose his own appointed counsel.
Unless he waives his right to counsel and elects to proceed pro se, or otherwise shows
adequate reason for the appointment of new counsel, he is not entitled to discharge his
counsel but must accept the counsel appointed by the trial court. Thomas v. State, 550
S.W.2d 64, 68 (Tex. Crim. App. 1977). Adequate reason for the discharge of counsel
and appointment of new counsel rests within the sound discretion of the trial court. Carroll
v. State, 176 S.W.3d 249, 255 (Tex. App.–Houston [1st Dist.] 2004, pet. ref'd).
Furthermore, the trial court is under no duty to search until it finds an attorney acceptable
to an indigent defendant. Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel
Op.] 1982); see Camacho v. State, 65 S.W.3d 107, 109 (Tex. App.–Amarillo 2000, no
pet.).
In those circumstances where the appointment of substitute counsel may be an
issue, an appellate court, when faced with a motion to withdraw, should abate the
proceeding to the trial court for determination. To avoid any conflict of interest and
further expenditure of judicial resources, we consider it prudent to resolve the issue of
appointed counsel now rather than invite future litigation by a post-conviction collateral
attack. See Lerma v. State, 679 S.W.2d 488, 493 (Tex. Crim. App. 1982). Thus, we
now ABATE the appeal and REMAND the cause to the trial court for further proceedings
consistent with this order.
Upon remand the trial court shall utilize whatever means necessary to determine
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whether appellant’s court-appointed attorney should remain as appellant's counsel; and,
if not, whether appellant is entitled to new appointed counsel or waives his right to
counsel and elects to proceed pro se. If the trial court determines that there is no reason
to discharge appellant’s current appointed attorney and appoint substitute counsel, the
court shall enter an order to that effect. If the trial court determines that new counsel
should be appointed, the name, address, telephone number, and state bar number of
newly appointed counsel shall be included in the order appointing counsel. If the trial
court determines that appellant waives his right to counsel and elects to proceed pro se,
the court shall enter an order to that effect. The trial court shall further cause its order to
be included in a supplemental clerk's record to be filed with the Clerk of this Court on or
before the expiration of thirty days from the date of this order.
It is so ordered.
Per Curiam
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
31st day of January, 2014.
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State v. Larry Green
Combined Opinion