Earl Wayne Murphy v. State ( 2005 )

NO. 07-04-0355-CR

07-04-0356-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 14, 2005

______________________________

EARL WAYNE MURPHY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 43,300-C, 35,122-C; HONORABLE PATRICK A. PIRTLE, JUDGE _______________________________

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

MEMORANDUM OPINION

Pending before this Court are appellant's motions to dismiss his appeals. Appellant and his attorney both have signed the document stating that appellant withdraws his notices of appeal. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motions. Accordingly, the appeals are dismissed. No motion for rehearing will be entertained and our mandates will issue forthwith.

Phil Johnson

Chief Justice

Do not publish.

Article 26.04(a) of the Texas Code of Criminal Procedure Annotated (Vernon 1989) provides in part that when the trial court determines that a defendant charged with a felony is indigent, the court shall appoint one or more practicing attorneys to defend him. "An attorney appointed under this subsection shall represent the defendant until . . . the attorney is relieved of his duties by the court or replaced by other counsel." Id. The Legislature has given the trial court the responsibility for appointing counsel to represent indigent defendants as well as the authority to relieve or replace counsel. See Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.-Waco 1999, no pet.); see also Springer v. State, 940 S.W.2d 322, 323 (Tex.App.-Dallas 1997, no pet.). If a defendant is not satisfied with his appointed counsel, he must bring the matter to the trial court's attention. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Cr.App. 1982). Thereafter, he carries the burden of proving that he is entitled to a change of counsel. Id.

Rule 25.2(e) of the Texas Rules of Appellate Procedure provides that once the appellate record has been filed all further proceedings in the trial court are suspended until mandate is issued. However, Rule 25.2(e) provides an exception where provided by law or the Rules of Appellate Procedure. In Enriquez, the court held that article 26.04(a) provides a statutory exception to Rule 25.2(e), and thus, there is no time limitation during which the trial court has authority to appoint or substitute counsel as long as the change in counsel does not prejudice the defendant's rights. 999 S.W.2d at 908.

Accordingly, appellant's motion for leave of court is overruled.

Per Curiam

Do not publish.

1. Appellant also filed a "Motion to Dismiss Appeal Attorney and in Alternative that New Appeal Attorney be Appointed" that is styled to the 64th District Court of Hale County.