Opinion
No. 04-06-00565-CV
Delivered and Filed: October 11, 2006.
This proceeding arises out of Cause Nos. A05-152 A05-153, styled State of Texas v. Donald Wayne Parker, pending in the 216th Judicial District Court, Kerr County, Texas, the Honorable Stephen B. Ables, presiding.
Petition for Writ of Mandamus Conditionally Granted.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Donald Wayne Parker seeks mandamus relief from the trial court's order denying the motion to substitute filed by retained counsel. Because Parker has a constitutional right to counsel of his choice, we conditionally grant the writ.
In March and April of 2005, Parker was charged with two offenses of aggravated sexual assault of a child, and Charles King was appointed to represent him. In November of 2005, King withdrew from the representation because he had taken a job as a prosecutor, and Albert D. Patillo, III was appointed to replace King. In May of 2006, Bruce N. Smith was employed by Parker's uncle to represent Parker and filed a motion to substitute counsel. In June of 2006, Patillo also filed a motion to substitute Smith as Parker's counsel.
At the hearing on the motion to substitute, the trial court expressed concern over the attorneys' fees that had been incurred by appointed counsel. The State expressed concern that the substitution not delay trial. Smith responded that he would be ready to proceed on whatever date trial was set. The trial court denied the motion to substitute pending payment of the attorneys' fees incurred by appointed counsel.
In a criminal case, mandamus relief is authorized only if the relator establishes: (1) he has no other adequate legal remedy; and (2) under the relevant facts and law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App. 2001); In re Reed, 137 S.W.3d 676, 678 (Tex.App.-San Antonio 2004, orig. proceeding). An act is ministerial if it does not involve the exercise of any discretion. State ex rel. Hill, 34 S.W.3d at 180; Reed, 137 S.W.3d at 678. Thus, mandamus may lie to compel a trial court to rule a certain way on an issue that is clear and undisputable such that its merits are beyond dispute or when the law clearly spells out the duty to be performed with such certainty that nothing is left to discretion or judgment whether the law is derived from statute, rule, or opinion of a superior court. Reed, 137 S.W.3d at 678.
The right to select counsel of one's choice is regarded as the root meaning of the Sixth Amendment's guarantee to right of counsel. United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2563 (2006). The erroneous deprivation of the right to counsel of choice qualifies as structural error, is not subject to harmless-error analysis, and entitles a defendant to automatic reversal on appeal. Id. at 2564, 2566. Although Parker was originally represented by appointed counsel and the right to counsel of choice does not extend to defendants requiring appointed representation, Smith was retained to represent Parker, thereby entitling Parker to counsel of his choice under Gonzalez-Lopez. Parker's right to have Smith substituted as counsel of choice is clear and undisputable, and Gonzalez-Lopez clearly spells out the duty to be preformed by the trial court in these circumstances. Accordingly, the substitution of Smith as Parker's counsel of choice was a ministerial act. See Reed, 137 S.W.3d at 678.
Although we are not unsympathetic to the fiscal concerns expressed by the trial court, Parker's Sixth Amendment right is paramount.
Withdrawal or substitution of counsel is a proper subject of mandamus. See In re Wingfield, 171 S.W.3d 374, 379 (Tex.App.-Tyler 2005, orig. proceeding). If Parker was required to raise this matter by appeal, he would be required to submit to a trial of the case without counsel of his choice; accordingly, he has no adequate remedy at law. See In re Posadas USA, Inc., 100 S.W.3d 254, 256-57 (Tex.App.-San Antonio 2001, orig. proceeding); Haley v. Boles, 824 S.W.2d 796, 798 (Tex.App.-Tyler 1992, orig. proceeding).
The petition for writ of mandamus is conditionally granted. We anticipate that, in accordance with our opinion, the trial judge will withdraw his order denying Parker's motion for substitution and enter an order granting the motion. The writ will only issue upon certification to this court that the judge has not done so within ten days from the date of this opinion.