Stotts v. Wisser

*367 OPINION ON RELATOR’S APPLICATION FOR WRIT OF MANDAMUS

OVERSTREET, Judge.

This is an original application for writ of mandamus. Relator, in a trial by jury, was convicted of the offense of aggravated robbery in the 299th District Court of Travis County on June 22, 1994. On July 20, 1994 the trial court conducted a sentencing hearing and assessed punishment at twenty-six (26) years confinement in the Texas Department of Criminal Justice Institutional Division. Notice of appeal was timely filed on August 10, 1994. Respondent presided over Relator’s trial. Relator seeks to challenge orders entered by Respondent as to Relator’s court appointed counsel. Specifically, he seeks to have this Court compel Respondent to vacate his orders appointing someone other than trial counsel to represent him on appeal, and to compel Respondent to allow appointed trial counsel to remain as counsel on appeal. On October 26, 1994, we granted leave to file the instant application.

I. PERTINENT FACTS

The record indicates that Respondent appointed Karyl Krug and another attorney to represent Relator at trial. The appointment order, signed by Respondent, recites in part:

I hearby appoint Karyl Krug, an attorney found by the Court to be competent, to represent the defendant in the above numbered and entitled cause, and to continue to represent the defendant until the case is concluded, including appeal, if any, or until released by written order of this court.

Relator through a statement made under penalty of perjury signed and dated July 20, 1994 stated that an attorney/elient relationship had been developed between Krug and himself. Relator also stated that he had great confidence in her ability to represent him on appeal and that he did not want any other attorney to represent him on appeal, but wanted the appointment of Krug to be continued for representation on appeal. Respondent denied Krug’s request to represent Relator on appeal.1 New counsel was appointed for the appeal.

II. ANALYSIS

To establish an entitlement to mandamus relief, a relator must satisfy two requirements: 1) there must be no adequate remedy at law to redress his alleged harm; and 2) the act sought to be compelled is purely ministerial, i.e. the relator must have a clear right to the relief sought. Buntion v. Harmon, 827 S.W.2d 945, 947 (Tex.Cr.App.1992); Stearnes v. Clinton, 780 S.W.2d 216, 219 (Tex.Cr.App.1989).

In Buntion v. Harmon, supra, we held that a relator has no adequate remedy at law for the arbitrary replacement of appointed counsel. Id. at 948. We also held that a trial judge does not have discretion to replace appointed trial counsel over the objection of both counsel and the defendant when the only justification for such replacement is the trial judge’s personal practice, experience, feelings or preference. Rather, there must be some principled reason, apparent from the record, to justify the trial judge’s sua sponte replacement of appointed counsel. Id. at 949.

Respondent maintains that the record contains a principled reason authorizing his replacement of Krug over the objection of Relator and Krug. Respondent states that Krug was merely appointed as an aide, note-taker, and observer for lead trial counsel. He urges that Krug should not be permitted to bootstrap herself from an appointed “note-taker” to appointed appellate counsel.

The record does not support Respondent’s assertion concerning Krug’s limited role. As noted above, the appointment order in this cause is all inclusive. Moreover, an attorney is appointed to represent a defendant rather than as an aid or assistant to other appointed counsel. Article 26.04(a), V.A.C.C.P. Art. 26.04(a) specifically states that an attorney appointed thereunder “shall represent the defendant until charges are dismissed, the *368defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel.” (Emphasis added.) As noted above, absent a principled reason apparent from the record, a trial judge does not have discretion to replace appointed trial counsel over the objection of both counsel and the defendant.

III. CONCLUSION

We find no such principled reason evident which would justify Respondent’s action in replacing appointed counsel Krug. Consequently, we hold that Relator does have a clear right to the relief sought. Accordingly, Relator is entitled to a writ of mandamus directing Respondent to vacate his order replacing appointed trial counsel Krug for purposes of appeal. However, as is customary with this Court, we will withhold issuance of the writ at this time. Instead, we accord Respondent the opportunity to conform his actions to this opinion. Only if such action is not taken will the writ of mandamus issue.

. Within a response filed with this Court, Respondent explains that standard operating procedure in his court involves appointment of an attorney from the appellate rotation list maintained by the Travis County Pretrial Services office.