Joshua Dewight McClure v. State

• Court: Court of Appeals of Texas
• Decided: October 4, 2013
• Docket: 13-13-00252-CR
• Status: Published

Opinion

NUMBER 13-13-00252-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSHUA DEWIGHT MCCLURE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas

ORDER ABATING APPEAL Before Chief Justice Valdez and Justices Rodriguez and Garza Order Per Curiam Appellant, Joshua Dewight McClure, has filed a pro se motion seeking to withdraw

his court-appointed counsel, waive his right to court-appointed counsel, and to proceed

pro se. 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. 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 or waives his right to

2 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, email address 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.

Appellant’s motion will be CARRIED WITH THE CASE pending review and receipt

of the supplemental record in this matter.

It is so ordered.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 4th day of October, 2013.