Ex Parte Markus Antonius Green ( 2014 )

NUMBERS 13-13-00544-CR, 13-13-00545-CR, &
13-13-00546-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARKUS ANTONIUS GREEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas
ORDER OF ABATEMENT
Before Justices Rodriguez, Garza, and Perkes
Order Per Curiam
This appeal was abated by this Court on November 18, 2013, to address
appellant’s pro se motions: (1) requesting the appointment of counsel on appeal; (2)
requesting an extension of time to perfect appeal; (3) seeking to compel the trial clerk to
provide appellant with the record; and (4) seeking to compel prison officials to provide
appellant with access to the law library. The trial court conducted a hearing and
appointed appellate counsel, Keith S. Weiser. This appeal was reinstated on January
10, 2014.
On February 10, 2014, appellant filed a pro se motion requesting to proceed on
appeal pro se. The Court forwarded appellant’s pro se motion to appellant’s counsel.
Appellant’s pro se motion states that counsel will not present the claims appellant has
requested and his defense will be ignored.
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 should abate the proceeding to the trial court for determination.
To avoid any conflict of interest and further expenditure of judicial resources, we consider
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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 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
3rd day of March, 2014.
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