Opinion
Nos. 07-03-0383-CR, 07-03-0384-CR, 07-03-0385-CR
September 30, 2003. DO NOT PUBLISH.
Appeal From The 251st District Court Of Potter County; No. 34,435-C, 34,436-C, 34,437-C; Honorable Patrick Pirtle, Judge.
Before: JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ORDER
We withdraw our prior order of abatement and remand, and enter this order in its place. Appellant David Matthew Layton appeals from three convictions and sentences in the 251st District Court of Potter County, Texas (the trial court). Appellant has, acting pro se, filed motions seeking his appointed appellate counsel's withdrawal and leave to appear on appeal pro se. In the motions, appellant alleges that he and his attorney cannot agree on the issues to be presented for appellate review. Additionally, appellant has filed a copy of a letter directed to his counsel containing demands that counsel withdraw, and threatening to file a grievance with the State Bar of Texas against his attorney if the attorney does not withdraw. Appellant does not have a right to file documents pro se while being represented by counsel. See Landers v. State, 550 S.W.2d 272, 279-80 (Tex.Crim.App. 1977). Nor does an indigent have the right to choose which counsel the court will appoint to represent him or her. See Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.Crim.App. 1992); Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982). Once the court has appointed an attorney to represent an indigent, the attorney has the obligation to represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or is replaced by another attorney.See Olvera v. State, 96 S.W.3d 316, 319 (Tex.App.-Amarillo 2000). If an indigent is displeased with appointed counsel, he must bring the matter to the court's attention. Thereupon, the defendant carries the burden of proving that he is entitled to a change of counsel. Id. The Court of Criminal Appeals has historically affirmed the trial judge's decisions in refusing defendants' motions to dismiss their court-appointed counsel.Id. Because of the seriousness of appellant's allegations and threats to counsel appointed by the trial court, pursuant to Tex.R.App.P. 2, these appeals are abated and the causes are remanded to the trial court. Upon remand, the judge of the trial court is directed to cause notice to be given of and to conduct a hearing to determine whether appellant has made a knowing and voluntary decision to waive his right to counsel and to represent himself on appeal. If the trial court determines that appellant has made a knowing, voluntary decision to waive his right to counsel and to represent himself on appeal, then the trial court should discharge appellate counsel from any further obligations to appellant. If the trial court determines that appellant has not made a knowing, voluntary decision to represent himself on appeal, then the trial court should enter orders and make recommendations appropriate to continued prosecution of appellant's appeals based on the evidence presented at the hearing, and on its findings and conclusions therefrom. 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) enter any orders appropriate, based on its findings and conclusions; (4) cause the hearing proceedings to be transcribed and included in a reporter's record; and (5) 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 reporter's record. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, 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 November 14, 2003.