in Re Simon Fletcher

• Court: Court of Appeals of Texas
• Decided: August 13, 2019
• Docket: 01-18-01109-CR
• Status: Published

Opinion

Opinion issued August 13, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-01109-CR ——————————— IN RE SIMON FLETCHER, Relator

Original Proceeding on Petition for Writ of Mandamus

OPINION

Relator, Simon Fletcher, filed an application for writ of mandamus seeking

to compel the respondent county court at law judge to (1) vacate the “Order

Removing Appointed Counsel” and the “Order Denying Defendant’s Ex Parte

Motion to Reverse Removal of Court-Appointed Attorney” and (2) reinstate Drew

Willey as his appointed trial counsel in the underlying criminal misdemeanor proceeding.1 The real party in interest filed a response. For the reasons below, we

conditionally grant the petition.

Background

In spring 2017, Fletcher was arrested for the misdemeanor of driving while

intoxicated in Chambers County. See TEX. PENAL CODE § 49.09(a). In July 2017,

he was charged by criminal complaint and information. Two months later, the

respondent, the Honorable Jimmy Sylvia, Chambers County Court Judge,2 signed

an order finding Fletcher indigent and appointing Drew Willey as Fletcher’s trial

counsel.

Almost a year after his appointment, shortly before his scheduled paternity

leave, Willey wrote to the administrative assistant in the County Judge’s office,

informing her that he “did not want [his] name to be reactivated for potential

appointments in Chambers County.” More than a month later, the assistant emailed

Willey asking him to complete and return an “Attorney Affidavit” requesting

“Exclusion From the Appointment List.” Willey explained in his affidavit that

“[t]he inadequate compensation [for appointed counsel] and conflicts of interests, 1 The underlying case is State v. Simon Fletcher, Cause No. 17CCR00241, pending in the County Court at Law, Chambers County, Texas, The Honorable Jimmy Sylvia presiding.

2 As County Judge, Judge Sylvia is not only the chief administrator and budget officer for Chambers County, presiding over Commissioners’ Court and serving as a voting member, but also a judge presiding over Civil, Probate, Juvenile, and County Criminal Courts. See https://www.co.chambers.tx.us/page/county_judge (last visited May 2, 2019). 2 namely, the [Chambers] County Attorney controlling the judicial offices, makes it

impossible to continue to provide effective assistance of counsel.” A month after

Willey handed in the affidavit, the assistant emailed Willey asking him if he

wished to remain as Fletcher’s counsel, and he responded that he did. Willey did

not file a motion to withdraw as counsel for Fletcher.

The respondent, however, had already removed Willey from the case. Three

days earlier, the respondent signed an “Order Removing Appointed Counsel.” The

order stated that the respondent was removing Willey as Fletcher’s appointed

counsel for good cause because Willey was “no longer on appointment list” and

that new counsel would be appointed according to the Chambers District and

County Court Plan. The respondent signed another order finding Fletcher indigent

and appointing Chiquia J. Roberson as Fletcher’s counsel.

On November 13, 2018, the respondent signed a letter to Willey explaining

his decision to remove Willey as Fletcher’s counsel and appoint new counsel.

Because Willey had “not withdrawn [his] affidavit,” based on Willey’s “sworn

statement,” the respondent believed that he “had no choice but to appoint counsel

to [Willey’s] clients who felt confident in their ability to effectively represent the

clients.” The respondent further explained that if the two “differences [Willey had]

with the county truly prohibit [him] from effectively advocating for any potential

3 future client,” then, in the respondent’s view, “they would also inhibit [Willey’s]

ability to represent the clients to whom [he was] already appointed.”

On December 3, 2018, Willey filed an “Ex Parte Motion to Reverse

Removal of Court-Appointed Attorney,” seeking reconsideration of the

respondent’s September 25, 2018 Order removing him as Fletcher’s counsel. Three

days later, the respondent signed an order denying this motion.

A few weeks later, Willey filed this mandamus petition contending that the

respondent lacked authority to discharge appointed counsel over Fletcher’s and

Willey’s objections and that no adequate remedy at law exists. Willey sought to

vacate the September 25, 2018 order removing him as Fletcher’s counsel and the

December 6, 2018 order denying his motion for reconsideration, and to reinstate

him as Fletcher’s counsel.

Per this Court’s order, counsel for the respondent, Judge Sylvia, responded.

He contended that he had the authority to remove Willey for good cause, or a

“principled reason,” based on Willey’s affidavit asking the county to remove him

from the appointment list. Because Willey had stated that he could not provide

effective assistance of counsel in Chambers County, the respondent argued that the

order protected Fletcher’s rights by removing Willey and appointing new counsel

who could provide effective assistance of counsel, under Chambers County’s

Indigent Defense Plan.

4 Mandamus Relief for Sua Sponte Removal of Appointed Counsel

To be entitled 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 relator must have a clear right to the relief sought. Buntion v. Harmon, 827

S.W.2d 945, 947 (Tex. Crim. App. 1992); Stearnes v. Clinton, 780 S.W.2d 216,

219 (Tex. Crim. App. 1989).

As for the second requirement, the relator “must show that what he seeks to

compel is a ministerial act, not involving a discretionary or judicial decision.”

Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011). Relator can

satisfy this second requirement “if the relator can show he has a clear right to the

relief sought – that is to say, when the facts and circumstances dictate but one

rational decision under unequivocal, well-settled (i.e., from extant statutory,

constitutional, or case law sources), and clearly controlling legal principles.” Id.

(citing State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d

207, 210 (Tex. Crim. App. 2007)).

A. Inadequate appellate remedy

The Court of Criminal Appeals has held that, in “a mandamus case involving

the arbitrary disqualification of appointed counsel rather than retained counsel of

choice,” the regular appellate process “‘does not provide an adequate remedy even

if it results in a reversal and new trial.’” Bowen, 343 S.W.3d at 813 (quoting

5 Stearnes, 780 S.W.2d at 225). Thus, Fletcher lacks an adequate appellate remedy

and has satisfied the first requirement. See Stearnes, 780 S.W.2d at 225. The

parties do not dispute this.

B. Clear right to relief to ministerial act

Fletcher has also satisfied his burden to demonstrate his clear right to relief

to a ministerial act. Although respondent provided a reason for the sua sponte

removal of Willey as Fletcher’s counsel, that reason does not withstand Willey and

Fletcher’s request to continue the representation.

“The right of the accused to counsel, both at trial and on appeal, is

fundamental.” Buntion, 827 S.W.2d at 948–49 (citations omitted). Under the Sixth

and Fourteenth Amendments, an indigent defendant is entitled to the appointment

of counsel. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). “A criminal

defendant is entitled to counsel of his choice if he is able to pay for the counsel,”

Powell v. Alabama, 287 U.S. 45, 53 (1932), but “an indigent defendant does not

have the right to the appointment of counsel of choice.” Stearnes, 780 S.W.2d at

221.

“Although an indigent defendant does not have the right to counsel of his

own choosing, once counsel is appointed, the trial judge is obliged to respect the

attorney-client relationship created through the appointment.” Buntion, 827 S.W.2d

at 949 (citing Stearnes, 780 S.W.2d at 221); see TEX. CODE CRIM. PROC. art.

6 26.04(j)(2) (appointed attorney must continue representation until replaced by

other counsel after “finding of good cause is entered”).

A trial court may overcome the presumption against the removal of

appointed counsel after an attorney-client relationship has been established when

the record shows some “principled reason” for the removal. Buntion, 827 S.W.2d

at 949 (there must be “some principled reason, apparent from the record,” to justify

a trial judge’s replacement of appointed counsel against the defendant’s wishes).

The Court of Criminal Appeals has held that, “[g]iven the fundamental nature of an

accused’s right to counsel, we cannot agree that a trial judge’s discretion to replace

appointed trial counsel over the objection of both counsel and defendant extends to

a situation where the only justification for such replacement is the trial judge’s

personal ‘feelings’ and ‘preferences.’” Id. (citing Stearnes, 780 S.W.2d at 222).

With limited exceptions, a trial court may not remove such an attorney over the

objections of both the accused and counsel. See Stearnes, 780 S.W.2d at 222–23.

“[C]ourts must exercise caution in disqualifying defense attorneys, especially if

less serious means would adequately protect the government’s interests.” Gonzalez

v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003). For example, it may be

proper for a court to remove counsel over the client’s objection where the integrity

of the judicial process and orderly administration of justice is impeded. Id.

7 While a trial judge has “an independent interest in ensuring that criminal

trials are conducted within the ethical standards of the profession and that legal

proceedings appear fair to all who observe them,” a mere potential conflict that has

been waived by the relevant parties will not “override the relators’ own perception

that the best way they could assure fairness for themselves was to be ‘defended by

the counsel [they] believe[d] to be best.’” Bowen, 343 S.W.3d at 812 (quoting

Wheat v. United States, 486 U.S. 153, 160 (1988)); id. at 816 (quoting United

States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006)).

Thus, not all reasons qualify as “good cause.” See, e.g., Stotts v. Wisser, 894

S.W.2d 366, 367–68 (Tex. Crim. App. 1995) (trial judge’s intention to appoint

attorney for limited purpose of notetaking and assisting lead counsel only did not

constitute good cause for removing counsel on appeal); In re Moore, No. WR-

87,158-01, 2018 WL 2716699, at *2–6 (Tex. Crim. App. June 6, 2018) (not

designated for publication) (trial judge did not show good cause for removing

appellate counsel for failing to timely file a brief). Even the judge’s opinion that

counsel is incompetent may not justify removing the attorney. See Smith v.

Superior Court of Los Angeles Cty., 440 P.2d 65, 67, 75 (1968) (cited with

approval in Stearnes, 780 S.W.2d at 221). In Smith, the trial judge removed

defense counsel because he believed counsel to be incompetent to try a death-

penalty case. Smith, 440 P.2d at 68. The judge raised counsel’s lack of experience

8 in trying capital cases only after a difficult exchange over a motion in which

counsel repeatedly interrupted the judge, who reprimanded him. Id. at 67. As the

attorney argued, “if the advocate must labor under the threat that, at any moment, if

his argument or advocacy should incur the displeasure or lack of immediate

comprehension by the trial judge, he may be summarily relieved as counsel on a

subjective charge of incompetency by the very trial judge he is attempting to

convince, his advocacy must of necessity be most guarded and lose much of its

force and effect.” Id. at 74 (quotation omitted). The attorney was ordered

reinstated. Id. at 75.

The appearance of a conflict of interest may not suffice to show good cause

for removal. Indeed, the Court of Criminal Appeals has held that a trial court

abused its discretion when it disqualified retained counsel because of his former

representation of one of the state’s key witnesses against his client. Bowen, 343

S.W.3d at 816.

Even an attorney’s belief that a judge’s decision renders him unable to

provide effective assistance of counsel is not grounds for that attorney’s removal.

See Harling v. United States, 387 A.2d 1101, 1106 (D.C. 1978) (cited with

approval in Stearnes, 780 S.W.2d at 221). In Harling, appointed counsel in a

murder case noted that he would not be able to provide effective assistance if he

walked into court after the judge denied his motion for discovery of the names of

9 eye witnesses. Id. at 1103. The trial judge’s response was to replace the

complaining court-appointed counsel. Id. On appeal, the court determined that the

attorney’s discharge was “not only an encroachment on appellant’s right to

counsel, but also a threat to the independence of the bar.” Id. at 1106.

Here, the conflict identified by the respondent is an abstract one and one

that, if given effect, would stymie any appointed representation in Chambers

County. The compensation for appointed attorneys is the same whether Willey

represents Fletcher or whether another attorney represents him. The structure of

Chambers County, with respondent serving as both chief executive with budgetary

responsibility and as criminal judge, would not change if the judge appointed

another attorney. Thus, any possibility of a conflict would remain the same no

matter which attorney represented Fletcher. Willey, the attorney objecting to how

appointments work in the county, is best situated to assess, in consultation with his

client, whether continuing to represent Fletcher after a year of legal work poses a

true conflict, or whether his concerns were limited to the viability of accepting

additional appointments in the future.

Fletcher informed the court that he prefers to continue to be represented by

Willey, his counsel of over one year. The complaint about the general conditions of

working as court-appointed counsel, without inquiry about how those conditions

10 would create a conflict here,3 cannot override Fletcher’s Sixth Amendment right to

be “defended by the counsel he believes to be best.” See Gonzalez-Lopez, 548 U.S.

at 146. And, even if the trial judge thought the course of events reflected on

Willey’s competency, as shown above, those concerns did not authorize Willey’s

removal over his and Fletcher’s objections. See Harling, 387 A.2d at 1106.

Conclusion

We conditionally grant the petition for writ of mandamus. We direct Judge

Jimmy Sylvia to vacate his order removing Willey as counsel and his order

denying relator’s motion to have Willey continue as counsel. We are confident

respondent will comply, and mandamus will issue only should he fail to do so.

Sarah Beth Landau Justice

Panel consists of Justices Keyes, Higley, and Landau.

Publish. TEX. R. APP. P. 47.2(b).

3 The issue must be case-specific and appear in the record. Cf. United States v. Smith, 895 F.3d 410, 421 (5th Cir.), cert. denied, 139 S. Ct. 495 (2018). 11