Leslie L. Moss v. State ( 2012 )

NO. 07-12-00067-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 20, 2012
LESLIE MOSS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 64,399-A; HONORABLE ABE LOPEZ, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER ON ABATEMENT AND REMAND
Appointed counsel for appellant, Leslie Moss, has filed a motion to withdraw as
counsel and to abate the appeal. By this motion, counsel states that another attorney
that works for the Office of State Counsel for Offenders was initially appointed to
represent appellant at trial. However, the attorney that was initially appointed to
represent appellant at trial filed a motion to withdraw from such representation on the
basis that the attorney had previously represented the complainant in the instant case in
an unrelated matter. The trial court granted trial attorney’s motion to withdraw without
holding a hearing. At the conclusion of appellant’s trial, the trial court appointed the
Office of State Counsel for Offenders to represent appellant in this appeal. By her
motion, appellate counsel contends that there appears to be a conflict of interest in her
representation of appellant on appeal.
When a lawyer admits to a conflict of interest, the trial court should hold a
hearing to explore that conflict. Kelly v. State, 640 S.W.2d 605, 611 (Tex.Crim.App.
1982). Unfortunately, the trial court did not hold a hearing on trial counsel’s alleged
conflict of interest. Consequently, this Court cannot review the nature of the alleged
conflict admitted by the prior lawyer that was appointed to represent appellant at trial. If
the use of any counsel from the Office of State Counsel for Offenders would result in a
conflict of interest under the Texas Rules of Professional Conduct,1 the appointment of
any attorney from the Office of State Counsel for Offenders is precluded. See TEX.
CODE CRIM. PROC. ANN. art. 26.051(g)(3) (West 2009). Further, the creation of a
“Chinese Wall” does not overcome the preclusion of appointment of any attorney of the
Office of State Counsel for Offenders. In re Wingfield, 171 S.W.3d 374, 382
(Tex.App.—Tyler 2005, orig. proceeding).
For the foregoing reasons, we now abate this appeal and remand the cause to
the trial court for further proceedings. Upon remand, the judge of the trial court is
directed to immediately cause notice to be given of and to conduct a hearing to
determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant
desires to prosecute this appeal, whether appellant is indigent; (3) whether appointed
appellate counsel’s representation of appellant could give rise to a conflict of interest
1
Counsel on appeal contends that her appointment to represent appellant could
give rise to a conflict of interest under Texas Rules of Professional Conduct 1.06 and
1.09.
2
under the Texas Rules of Professional Conduct; (4) whether appellant=s present counsel
should be replaced; and (5) what orders, if any, should be entered to assure the filing of
appropriate notices and documentation to dismiss appellant=s appeal if appellant does
not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to
assure that the appeal will be diligently pursued. If the trial court determines that the
present attorney for appellant should be replaced, the court should cause the Clerk of
this Court to be furnished the name, address, and State Bar of Texas identification
number of the newly-appointed or newly-retained attorney.
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) cause the hearing proceedings
to be transcribed and included in a supplemental reporter=s record; (4) 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 supplemental reporter=s record; and (5) cause the
records of the proceedings to be sent to this Court. See TEX. R. APP. P. 34.5(C)(2),
38.8(b)(3). The supplemental clerk=s record, supplemental 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 September 19, 2012.
Per Curiam
Do not publish.
3