Opinion
NO. 03-18-00080-CR
04-24-2018
John S. Young, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. 8-17-0081-SB , HONORABLE MARTIN (BROCK) JONES, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION
PER CURIAM
Appellant John S. Young was convicted of theft, money laundering, and forgery. The trial court appointed John Sutton to represent Young on appeal. Young has filed a motion to abate, requesting that the trial court replace Sutton as appellate counsel. Young asserts that he has potential claims against Sutton arising from Sutton's prior representation of Young in a related civil case and that these claims create an insurmountable conflict of interest that should disqualify Sutton from representing Young in this case.
In the related civil case, Young sued Michael Deadman, the administrator of the estate of John S. Sullivan, for the recovery of a contingent fee that Young claimed the estate owed him for his representation of Sullivan in a civil-forfeiture case. The trial court in that case granted summary judgment against Young, and Young appealed. See Law Offices of John S. Young, P.C. v. Deadman, No. 03-17-00148-CV, 2017 WL 6273258 (Tex. App.—Austin, Dec. 5, 2017, no pet. h.) (mem. op). Young asserts that this Court's opinion affirming the trial court's judgment demonstrates numerous shortcomings of Sutton's original civil representation of Young.
Young argues that Sutton's failure to properly prosecute his civil case allowed the State to argue at Young's criminal trial that the contingency fee should be included in the theft charge against him. He also contends that he has viable claims of negligence and breach of contract against Sutton. Young alleges that this situation presents an insurmountable conflict of interest because if he wishes to prosecute his claims against Sutton, he must do so during a time when Sutton will also be actively representing his liberty interests by acting as his criminal counsel in this appeal. Moreover, he asserts that Sutton is a witness, which further creates a conflict of interest. Thus, Young contends that Sutton should be disqualified from representing him in his criminal appeal.
This Court may not take any action on Young's pro se motion to abate because he is represented by counsel. See Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001) (holding that appellants are not allowed to have "hybrid representation" on appeal). Moreover, although we may permit an attorney to withdraw from representation, see Tex. R. App. P. 6.5, we do not have the authority to appoint substitute counsel, see Tex. Code Crim. Proc. art. 1.051(d) (establishing that trial court has exclusive responsibility for appointing counsel to represent indigent defendants). While we note that Young does not have the right to choose his own appointed counsel, if he makes an adequate showing, "certain circumstances, for example, a claim of a conflict of interest, may warrant the trial court's exercising its discretion to discharge previously appointed counsel and appoint substitute counsel." Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd); see also Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977) ("The defendant must accept counsel assigned by the court unless he . . . can show adequate cause for appointment of a different attorney."). Although we have not been presented with a motion to withdraw by Sutton, under these circumstances, "[w]ithout considering the merits of the Appellant's pro se motion, and 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." Watson v. State, No. 07-06-0414-CR, 2007 WL 313460, at *2 (Tex. App.—Amarillo Feb. 2, 2007, no pet.) (per curiam) (mem. op., not designated for publication) (citing Lerma v. State, 679 S.W.2d 488, 493 (Tex. Crim. App. 1982)).
Thus, we abate the appeal and remand the cause for the trial court to conduct a hearing to determine whether Sutton should remain as Young's counsel, and if not, whether Young is entitled to new appointed counsel. If the trial court determines that there is no reason to discharge Sutton 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, and state bar number of newly appointed counsel shall be included in the order appointing counsel. The record from the hearing—including copies of all findings, the court's order, and a transcription of the court reporter's notes—shall be forwarded to the Clerk of this Court for filing as a supplemental record no later than May 24, 2018.
It is so ordered on April 24, 2018. Before Justices Puryear, Pemberton, and Bourland Abated and Remanded Filed: April 24, 2018 Do Not Publish