Opinion
01-23-00353-CR
05-21-2024
Jose Gonzales v. The State of Texas
County Criminal Court at Law No. 8 of Harris County Trial court case number: 2392807
ORDER OF ABATEMENT
April L. Farris J.
The trial court appointed attorney Scott Pope, Harris County Public Defender's Office, to represent appellant Jose Gonzales on appeal. Assistant Public Defender Sophie Bossart subsequently filed a notice of appearance in this Court expressly appearing as Gonzales's "additional" attorney under Rule of Appellate Procedure 6.2. See Tex. R. App. P. 6.2 (authorizing "attorney other than lead counsel" to file notice of appearance on behalf of specified party). The appellate record does not show that the trial court appointed Bossart to represent Gonzales. The appellate record also does not show that Pope has filed a motion for leave to withdraw as counsel in the trial court. Although Bossart was not appointed as Gonzales's appellate counsel by the trial court, Bossart signed Gonzales's appellate brief, and the brief does not mention Pope or identify Pope as counsel for Gonzales. See Tex. R. App. P. 38.1(a) (requiring appellant's brief to "give a complete list of the names of all counsel appearing in the trial or appellate court").
Bossart has now filed a motion for leave to withdraw as Gonzales's attorney. The sole reason for withdrawal provided in the motion is that "Gonzales expressed he would no longer like to be represented by [Bossart's] office." Although the appellate record indicates that both Pope and Bossart are employed by the same office, the motion for leave to withdraw does not state whether Pope will continue to represent Gonzales or whether Pope also requests leave to withdraw as counsel. Pope has not filed a separate motion for leave to withdraw or to appoint substitute counsel.
Rule of Appellate Procedure 6 governs withdrawal of counsel. Rule 6.4(b) provides, "In a criminal case, an attorney appointed by the trial court to represent an indigent party cannot file a nonrepresentation notice." Tex.R.App.P. 6.4(b). However, under Rule 6.4(c), if an attorney other than lead counsel will no longer represent a party, but lead counsel will continue to represent the party, "the non-lead counsel should file a nonrepresentation notice" which "identif[ies] who will continue to represent the party." Tex.R.App.P. 6.4(c). Rule 6.5(d) permits substitution of lead counsel. Tex.R.App.P. 6.5(d).
Within the context of these Rules, the Court interprets the motion for leave to withdraw filed by Bossart as a request to withdraw as non-lead counsel under Rule 6.4(c). See Tex. R. App. P. 6.4(c). The motion does not comply with Rule 6.4(c) because it is not a notice of nonrepresentation, and it does not "identify counsel who will continue to represent" Gonzales. See id. To the extent the motion requests the withdrawal of all counsel in Bossart's office, which includes Pope, Rule 6 does not permit appointed lead counsel in a criminal case to withdraw without a request to substitute new appointed counsel. See Tex. R. App. P. 6.4(b), (c), 6.5(d). Accordingly, the Court is unable to ascertain the precise relief sought by the motion for leave to withdraw.
Moreover, the motion does not clarify why Gonzales "would no longer like to be represented by [Bossart's] office." "The Federal and Texas Constitutions, as well as Texas statute, guarantee a defendant in a criminal proceeding the right to have assistance of counsel." Gonzalez v. State, 117 S.W.3d 831, 836 (Tex. Crim. App. 2003) (citing U.S. Const. amend. VI, Tex. Const. art. I, § 10, and Tex. Code Crim. Proc. art. 1.05). The right to counsel, however, is not absolute; as relevant here, an indigent defendant on appeal does not have the absolute right to dictate the counsel of his choosing. Id. at 836-37; see King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) ("A trial court has no duty to search for counsel agreeable to the defendant."). Furthermore, "the right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice." King, 29 S.W.3d at 566 (citation omitted). The decision to permit the withdrawal of appointed counsel and subsequently appoint substitute counsel rests within the sound discretion of the trial court. Tex. Code Crim. Proc. arts. 1.051(d)(1), 26.04(j)(2) ("An attorney appointed under this article shall . . . represent the defendant until . . . appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record[.]"); Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006) (analyzing relationship between Code of Criminal Procedure article 26.04 and Rule of Appellate Procedure 6.5, and affirming use of article 26.04 where substitution of counsel may be ordered).
The Court therefore deems it appropriate to abate this appeal and remand to the trial court.
Accordingly, we abate this appeal and remand to the trial court to determine whether Bossart should be permitted to withdraw as non-lead appellate counsel for Gonzales in accordance with the prescriptions of Code of Criminal Procedure article 26.04. See Tex. Code Crim. Proc. art. 26.04; Meza, 206 S.W.3d at 688. Specifically, we direct the trial court to conduct a hearing at which Bossart, Pope, Gonzales, and an attorney for the State shall be present. The hearing shall be conducted within 30 days of the date of this order. The trial court shall cause notice of this hearing to be given to Bossart, Pope, Gonzales, and the State. The trial court shall determine: (1) the nature of Gonzales's dissatisfaction with counsel; (2) whether Gonzales is dissatisfied only with Bossart or whether his dissatisfaction extends to Pope; and (3) whether good cause exists to permit Bossart to withdraw as non-lead appellate counsel for Gonzales. The trial court may also consider any motion for leave to withdraw and to appoint substitute counsel filed by Pope. If the trial court finds that good cause exists to permit both Bossart and Pope to withdraw as counsel, the trial court shall appoint new appellate counsel. The trial court shall file findings of fact and conclusions of law containing its determination of these issues as well as any orders with the trial court clerk.
The hearing shall be transcribed by a court reporter. The court reporter is directed to file a reporter's record of the hearing within 15 days after the hearing concludes. The trial court clerk is directed to file a supplemental clerk's record containing the trial court's findings of fact and conclusions of law and any orders within 15 days after they are filed. The trial court reasonably may extend any deadline in this order at its discretion or on either party's motion.
This appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record and the reporter's record are filed in this Court.
It is so ORDERED.