Donald Wayne Dorch v. State ( 2004 )

NO. 07-04-0380-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 8, 2004

______________________________



DONALD WAYNE DORCH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 8TH DISTRICT COURT OF HOPKINS COUNTY;

NO. 0317244; HONORABLE ROBERT NEWSOM, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

ON COUNSEL'S MOTION TO WITHDRAW

Pending before the court is a motion to withdraw filed by appellant's appointed counsel, Roland Fergurson. The motion is based on appellant's written request that Fergurson withdraw and Fergurson's statement that he is "unable to effectively communicate with" appellant. Attached to the motion is a letter from appellant to Fergurson accusing him of disregarding appellant's request for the status of his appeal and appellant's "instructions" concerning the issues to be presented on appeal. We will overrule the motion.

It is well established that an indigent criminal defendant's right to counsel does not require a court to search for an attorney acceptable to the defendant. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000); Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982). ⁽¹⁾

The notice of appeal in this case was filed June 16, 2004. Appellant's letter to Fergurson was dated August 26, 2004. The clerk's record was filed September 2. The present motion was filed September 16. The reporter's record has not been filed and was due on October 4.

Appellant's complaints are that his counsel has failed to keep him informed of the status of the appeal or advance specific arguments on appeal. The limited record shows no events had occurred in the appeal between the filing of the notice of appeal and appellant's August 26 letter. Appellant's letter also appears to reflect an expectation that his counsel commit to advancing specific arguments on appeal before even having an opportunity to review the record of the trial proceedings to determine if that record would support the arguments. An attorney is ethically barred from advancing arguments with no basis in fact or law and the right to counsel does not require counsel to make such arguments. See Penson v. Ohio, 488 U.S. 75, 83-84, 109 S. Ct. 346, 351-52, 102 L. Ed. 2d 300 (1988); Tex. Discip. R. Prof. Conduct 3.01 (1989). Counsel acts properly in reserving an opinion on making specific arguments until he has had an opportunity to review the full record. Appellant's complaint at this stage of the appeal concerning the arguments that will be presented is speculative.

The statement in Fergurson's motion that he is unable to effectively communicate with appellant is made without any support. Conflicts of personality and disagreements between counsel and client are not automatic grounds for withdrawal. Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990).

The trial court has the responsibility for appointing counsel to represent indigent defendants, as well as the authority to relieve or replace counsel, and retains authority to appoint or substitute counsel even after the appellate record has been filed. Tex. Code Crim. Proc. Ann. arts. 1.051(d), 26.04(j)(2) (Vernon Supp. 2004). See also Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex.App.--Waco 1999, no pet.). But see Hudspeth v. State, 31 S.W.3d 409, 412 (Tex.App.-Amarillo 2000, pet. ref'd) (court of appeals authority to rule on motion to withdraw accompanying Anders brief). The pending motion does not establish good cause for us to remand the appeal to the trial court for that purpose. We overrule the motion, without prejudice to its refiling if future events make it necessary.

Per Curiam

Do not publish.

1. The statement in Fergurson's motion to withdraw that his withdrawal is sought that appellant "might be represented by counsel of his choice" thus overstates appellant's entitlement under the Sixth and Fourteenth Amendments. See Malcom, 628 S.W.2d at 791.

">Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).