Bryant v. State

75 S.W.3d 628, 2002 Tex. App. LEXIS 2737, 2002 WL 576342
CourtCourt of Appeals of Texas
DecidedApril 15, 2002
DocketNo. 2-00-213-CR
StatusPublished
Cited by7 cases

This text of 75 S.W.3d 628 (Bryant v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. State, 75 S.W.3d 628, 2002 Tex. App. LEXIS 2737, 2002 WL 576342 (Tex. Ct. App. 2002).

Opinion

OPINION ON THE STATE’S CROSS-PETITION FOR DISCRETIONARY REVIEW.

LEE ANN DAUPHINOT, Justice.

Pursuant to Rule 50 of the Texas Rules of Appellate Procedure, we have reconsidered our prior opinion upon the State’s cross-petition for discretionary review. Our opinion and judgment of November 15, 2001 are withdrawn and the following are substituted.

A jury convicted Appellant Casey Den-undra Bryant of the offense of aggravated sexual assault of a child younger than fourteen years of age and assessed his punishment at forty years’ confinement. Appellant raises a single issue on appeal, contending that the trial court abridged his right to qualified appointed counsel under articles 1.051 and 26.04 of the Texas Code of Criminal Procedure.1 We affirm.

BACKGROUND

On December 8, 1998, Appellant was indicted for the offense of aggravated sexual assault of a child. On April 28, 1999, Sara Spector, acting as Appellant’s attor[630]*630ney, filed a motion to set reasonable bail on his behalf. On October 12, 1999, the trial court, on its own motion, signed an order appointing Larry Coker to defend Appellant in this case. On February 4, 2000, Spector filed a motion for a court-appointed private investigator on Appellant’s behalf in the trial court. The motion noted Spector’s address as follows:

Law Office of LARRY G. COKER 530 Bedford Rd.
Suite 112
Bedford, TX 76022

On May 30, 2000, Appellant appeared for trial with Spector as his attorney. Before the start of voir dire, the following exchange occurred between the trial court and Spector:

THE COURT: ... Counsel, are you going to file an election for punishment?
MS. SPECTOR: Yes, Your Honor.
THE COURT: You were appointed by Judge Drago; is that correct?
MS. SPECTOR: Yes, sir.
THE COURT: And when were you appointed?
MS. SPECTOR: October of 1999.
THE COURT: So you have been representing Mr. Bryant since that time?
MS. SPECTOR: Prior to that time, Your Honor, we were hired.
THE COURT: Is that correct, Mr. Bryant?
THE DEFENDANT: Yes, sir.
THE COURT: Okay.
MS. SPECTOR: Do you want me to put some things on the record about the firm representing him?
THE COURT: I think we’ve established what we need to establish here.

During voir .dire, Spector told the jury, “I work for Larry Coker. He’s an attorney here in Tarrant County. And I’m an attorney I’ve been working with him for two years.”

DISCUSSION

Appellant argues that he was harmed by the trial court’s sua sponte substitution of Spector for Coker as Appellant’s appointed trial counsel because Spector lacked the training and experience necessary to effectively defend Appellant against a charge of aggravated sexual assault of a child. Appellant further contends that his right to qualified appointed counsel under articles 1.051 and 26.04 of the code of criminal procedure was violated by the substitution of counsel without judicial approval.

Appellant correctly points out that an indigent defendant has the right to appointed counsel and that trial courts have an affirmative duty to appoint competent counsel to represent indigent defendants.2 The crux of the issue before this court is whether a trial court appoints an entire law firm by appointing an individual attorney within the firm and whether the individual lawyer appointed by the court may, without judicial approval and without the knowledge or approval of the defendant, arbitrarily substitute another attorney to represent the defendant.

The State argues that Appellant forfeited any complaint concerning Spec-tor’s representation of him by failing to object at trial to the substitution of counsel. The State misconstrues both the law and the record. Appellant did not sign a request for counsel. Coker was appointed on the court’s own motion, but Spector never withdrew as counsel. The trial court had no authority to replace retained [631]*631counsel with appointed counsel absent Appellant’s consent.3

In its surreply brief, the State argues: Yet, when Appellant’s employment of Ms. Spector proves to be a hindrance to his effort to obtain a windfall through a hyper-technicality, Appellant asserts that Ms. Spector wasn’t retained by Appellant — only the firm was retained-It just doesn’t work like that: when Ms. Spector entered an appearance on Appellant’s behalf as “Attorney for Defendant,” ... she was his attorney and could only leave the case by withdrawing.

The State also argues in the same brief: “Appellant cannot go to trial with an attorney he retained and worked with intensely for over one year ..., present no objections (either personally or through either of his two counsels) to that attorney acting as counsel and then complain on appeal that he had the wrong counsel.”

While we disapprove the State’s rude language, we understand the State to be arguing that Spector was never relieved of her obligations as Appellant’s counsel. The State does not cite us to any place in the record, and we can find none, in which Appellant requested that Spector be replaced by appointed counsel or in which Spector was allowed to withdraw as eoun-sel of record. We fail, then, to understand exactly what the State argues in its cross-petition for discretionary review that Appellant should have objected to at trial. The trial court did not err in permitting Spector to serve as counsel at trial. What error, then, has Appellant waived?

Turning now to the merits of Appellant’s challenge, we note a great deal of confusion exists in this case. It is well-established and undisputed that an indigent criminal defendant is constitutionally entitled to effective representation by competent counsel.4 This right is also statutorily protected. Article 1.051 of the code of criminal procedure provides in pertinent part: “A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding.”5 Furthermore, it is well-established that when counsel appears on behalf of a criminal defendant as his attorney of record, that lawyer, whether appointed or retained, is obligated to represent the client until the trial court actually grants a motion to withdraw or a motion to substitute counsel.6 Merely filing a motion to withdraw does not relieve the attorney of his or her obligation to fully represent the client.

Although the trial court had the authority to appoint counsel upon its own motion after a determination of indigence, article [632]*63226.05 of the code of criminal procedure provides that an appointed attorney may receive compensation only if he or she appears in court or otherwise affirmatively expends time and effort in representing the defendant.7

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Cite This Page — Counsel Stack

Bluebook (online)
75 S.W.3d 628, 2002 Tex. App. LEXIS 2737, 2002 WL 576342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-state-texapp-2002.