ACCEPTED
04-15-00513-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/20/2015 11:39:26 PM
KEITH HOTTLE
CLERK
No. 04-15-00513-CR
IN THE FILED IN
4th COURT OF APPEALS
FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
OF TEXAS 10/20/2015 11:39:26 PM
AT SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
EDWARD HOUSTON APPELLANT
V.
THE STATE OF TEXAS APPELLEE
MOTION TO RECONSIDER THE ORDER GRANTING RICHARD B.
DULANY, JR.’S MOTION TO WITHDRAW AS COUNSEL
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS OF TEXAS:
COMES NOW, EDWARD HOUSTON, the Appellant in the above styled
and numbered cause, through the undersigned counsel, pursuant to Texas Rules of
Appellate Procedure 10.2(c) and 10.3, and files this request for the Court to
reconsider its order granting the undersigned’s motion to withdraw as counsel for
the Appellant. In support of this motion, undersigned counsel respectfully shows the
following:
I. The factual basis for this request:
The trial court appointed the undersigned, in his former capacity as Interim
1
Chief Public Defender of Bexar County, Texas, to represent the Appellant in this
case. On September 24, 2015, the undersigned attorney was abruptly fired by Chief
Public Defender Michael Young and is no longer employed by the Bexar County
Public Defender’s Office. The undersigned attorney offered to continue to represent
the Appellant in this case, but Mr. Young refused. The undersigned attorney has no
access to the physical file that he created for this case and can do no further work on
the Appellant’s behalf. The undersigned informed the Clerk of this Court of these
facts. Nevertheless, the undersigned was still listed as lead counsel in this case per
the Court’s website.
To avoid being held accountable for any further delay in this case, and also to
avoid being held accountable for some other person’s filings or similar actions,
made without the undersigned attorney’s knowledge or consent, the undersigned
formally moved to withdraw as counsel for the Appellant. In his motion to
withdraw, he specifically prayed that this appeal be abated and remanded to the trial
court to determine whether he should remain as the Appellant’s court-appointed
counsel. The undersigned explicitly stated that he was willing to continue to
represent the Appellant in this case. As is required by Rule 6.5(a) of the Texas Rules
of Appellate Procedure, the undersigned provided a copy of the motion to withdraw
to the Appellant and notified him of his right to object to the motion. By sworn
2
affidavit, the Appellant has since notified the Clerk of this Court that he would like
for the undersigned to continue as his court-appointed counsel. Yet this Court had
already issued an order granting the undersigned’s motion to withdraw and
designating Michael D. Robbins as the Appellant’s “new attorney of record.” All of
these facts are within the personal knowledge of the undersigned attorney.
II. The motion to withdraw was determined prematurely:
Rule 10.3 of the Texas Rules of Appellate Procedure provides that a motion
should not be heard or determined until 10 days after it was filed, subject to certain
exceptions that do not apply here. The undersigned filed his motion to withdraw on
October 2, 2015. This Court issued its order granting the motion just six days later,
on October 8, 2015. The motion was determined prematurely and without the benefit
of the Appellant’s written objection with his request that the undersigned remain as
his court-appointed counsel. For that reason, the undersigned requests that this Court
reconsider its order. See TEX. R. APP. P. 10.3(b).
III. The appointment of counsel rests within the discretion of the trial
court, not this Court:
The discharge of appointed appellate 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). See also TEX. CODE CRIM.
PROC. ANN. art. 26.04 (a) & (f)(1). As the undersigned stated in his motion to
3
withdraw, he will continue to represent the Appellant in this case. This Court was
without authority to accept the entry of appearance of an attorney from the Bexar
County Public Defender’s Office as lead counsel of record. Clearly, the Appellant
wishes for the undersigned to continue as his appellate counsel. The appointment of
court-appointed appellate counsel should be determined by the trial court.
PRAYER
THEREFORE, undersigned counsel for the Appellant prays that this Court
abate this appeal and remand this case to the trial court to determine whether the
undersigned should remain as the Appellant’s counsel. As always, the Appellant
also asks this Court to grant all such relief as is fair and just.
Respectfully submitted,
RICHARD B. DULANY, JR.
Texas Bar No. 06196400
Attorney at Law
P.O. Box 782524
San Antonio, TX 78278
(210) 373-2303
(210) 444-9070 fax
richarddulany@gmail.com
/s/ Richard B. Dulany, Jr.
___________________________________
RICHARD B. DULANY, JR.
ATTORNEY FOR APPELLANT
4
CERTIFICATE OF SERVICE AND COMPLIANCE
The undersigned does hereby certify that a copy of the above motion was
delivered by electronic service to the Appellate Section of the State’s Attorney:
Nicholas A. LaHood, Criminal District Attorney, Bexar County District Attorney’s
Office, Appellate Section, 101 W. Nueva St., Suite 710, San Antonio, Texas 78205,
on October 20, 2015. The word count is 845.
/s/ Richard B. Dulany, Jr.
___________________________________
RICHARD B. DULANY, JR.
5