in the Estate of Rafael Franco, Sr. ( 2016 )

NUMBER 13-15-00376-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE ESTATE OF RAFAEL FRANCO, SR., DECEASED
On Appeal from the County Court at Law No. 1
of Nueces County, Texas
ORDER
Before Chief Justice Valdez and Justices Rodriguez and Garza
Order Per Curiam
Appellant, Javier R. Franco, has filed a pro se motion to abate and requests new
counsel be appointed. According to appellant’s motion, there has been a breakdown in
communication and there is a conflict between appellant and his court-appointed counsel.
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. Without considering the merits of the
Appellant's pro se motion,1 and 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
whether appellant’s court-appointed attorney should remain as appellant's counsel; and,
if not, whether appellant is entitled to new appointed counsel. If the trial court determines
that there is no reason to discharge appellant’s current appointed attorney and appoint
1Appellant is represented by counsel and is not entitled to hybrid representation on appeal. See
Ex Parte Taylor, 36 S.W 3d 883, 887 (Tex. Crim. App. 2001).
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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,
email address, and state bar number of newly appointed counsel shall be included in the
order appointing counsel. 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
Delivered and filed the
27th day of May, 2016.
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