Leslie L. Moss v. State

• Court: Court of Appeals of Texas
• Decided: August 20, 2012
• Docket: 07-12-00067-CR
• Status: Published

Opinion

NO. 07-12-00067-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

AUGUST 20, 2012

LESLIE MOSS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 64,399-A; HONORABLE ABE LOPEZ, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ORDER ON ABATEMENT AND REMAND

Appointed counsel for appellant, Leslie Moss, has filed a motion to withdraw as

counsel and to abate the appeal. By this motion, counsel states that another attorney

that works for the Office of State Counsel for Offenders was initially appointed to

represent appellant at trial. However, the attorney that was initially appointed to

represent appellant at trial filed a motion to withdraw from such representation on the

basis that the attorney had previously represented the complainant in the instant case in

an unrelated matter. The trial court granted trial attorney’s motion to withdraw without

holding a hearing. At the conclusion of appellant’s trial, the trial court appointed the Office of State Counsel for Offenders to represent appellant in this appeal. By her

motion, appellate counsel contends that there appears to be a conflict of interest in her

representation of appellant on appeal.

When a lawyer admits to a conflict of interest, the trial court should hold a

hearing to explore that conflict. Kelly v. State, 640 S.W.2d 605, 611 (Tex.Crim.App.

1982). Unfortunately, the trial court did not hold a hearing on trial counsel’s alleged

conflict of interest. Consequently, this Court cannot review the nature of the alleged

conflict admitted by the prior lawyer that was appointed to represent appellant at trial. If

the use of any counsel from the Office of State Counsel for Offenders would result in a

conflict of interest under the Texas Rules of Professional Conduct,1 the appointment of

any attorney from the Office of State Counsel for Offenders is precluded. See TEX.

CODE CRIM. PROC. ANN. art. 26.051(g)(3) (West 2009). Further, the creation of a

“Chinese Wall” does not overcome the preclusion of appointment of any attorney of the

Office of State Counsel for Offenders. In re Wingfield, 171 S.W.3d 374, 382

(Tex.App.—Tyler 2005, orig. proceeding).

For the foregoing reasons, we now abate this appeal and remand the cause to

the trial court for further proceedings. Upon remand, the judge of the trial court is

directed to immediately cause notice to be given of and to conduct a hearing to

determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant

desires to prosecute this appeal, whether appellant is indigent; (3) whether appointed

appellate counsel’s representation of appellant could give rise to a conflict of interest

1 Counsel on appeal contends that her appointment to represent appellant could give rise to a conflict of interest under Texas Rules of Professional Conduct 1.06 and 1.09.

2 under the Texas Rules of Professional Conduct; (4) whether appellant=s present counsel

should be replaced; and (5) what orders, if any, should be entered to assure the filing of

appropriate notices and documentation to dismiss appellant=s appeal if appellant does

not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to

assure that the appeal will be diligently pursued. If the trial court determines that the

present attorney for appellant should be replaced, the court should cause the Clerk of

this Court to be furnished the name, address, and State Bar of Texas identification

number of the newly-appointed or newly-retained attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and

file appropriate findings of fact, conclusions of law, and recommendations and cause

them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings

to be transcribed and included in a supplemental reporter=s record; (4) have a record of

the proceedings made to the extent any of the proceedings are not included in the

supplemental clerk=s record or the supplemental reporter=s record; and (5) cause the

records of the proceedings to be sent to this Court. See TEX. R. APP. P. 34.5(C)(2),

38.8(b)(3). The supplemental clerk=s record, supplemental reporter=s record, and any

additional proceeding records, including any orders, findings, conclusions, and

recommendations, are to be sent so as to be received by the Clerk of this Court not

later than September 19, 2012.

Per Curiam

Do not publish.