Paul Anthony Garcia v. the State of Texas ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
CONCURRING OPINION
No. 04-22-00338-CR
Paul Anthony GARCIA,
Appellant
v.
The State of TEXAS,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 5398
Honorable Kirsten Cohoon, Judge Presiding
Opinion by: Beth Watkins, Justice
Concurring Opinion by: Liza A. Rodriguez, Justice
Sitting: Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: March 6, 2024
The majority declines to decide if indigent defendants who are represented by court-
appointed counsel have the right to be represented by additional retained or pro bono co-counsel
of their choosing, but that is precisely the issue presented in this case. To provide clarity to the
bench and the bar, I would decide that issue today.
Three of our sister courts have held that a right to additional retained or pro bono co-
counsel does not exist for indigent defendants who have court-appointed counsel, 1 but I would
Whitney v. State, 396 S.W.3d 696, 700-01 (Tex. App.—Fort Worth 2013, pet. ref’d) (holding Sixth Amendment
1
was not violated when trial court excluded non-appointed counsel from actively participating as co-counsel
Concurring Opinion 04-22-00338-CR
hold that it does. As pointed out in the dissenting opinion in Trammell v. State, the issue is not
whether a defendant can demand court-appointed counsel of his choosing, the issue is whether a
defendant who has court-appointed counsel has the right to be represented by additional retained
or pro bono co-counsel of his choosing. See Trammell v. State, 287 S.W.3d 336, 344 (Tex.
App.—Fort Worth 2009, no pet.) (Dauphinot, J., dissenting). In my view, an indigent defendant
is entitled to the same right to counsel as a non-indigent defendant, who can engage as many
lawyers as he deems necessary to aid in his defense. See id. Thus, I would hold that Garcia had a
right to be represented by additional retained or pro bono co-counsel of his choosing.
But our inquiry does not end there. Like a non-indigent defendant’s right to retained
counsel of choice, an indigent defendant’s right to additional retained or pro bono co-counsel of
his choice is a qualified right, and the trial court has wide latitude to balance that right against the
needs of fairness and the demands of the trial court’s calendar. See United States v. Gonzalez-
Lopez, 548 U.S. 140, 151-52 (2006). Accordingly, I join the majority’s remaining analysis and
its conclusion that—on these particular facts—the trial court did not abuse its discretion by
failing to formally recognize Garcia’s additional retained or pro bono co-counsel of his choosing.
With these comments, I respectfully concur.
Liza A. Rodriguez, Justice
DO NOT PUBLISH
alongside court-appointed counsel); Trammell v. State, 287 S.W.3d 336, 343-44 (Tex. App.—Fort Worth 2009, no
pet.) (holding trial court did not abuse its discretion when it excluded defendant’s pro bono co-counsel from trial);
see also Mitchell v. State, No. 07-22-00359-CR, 2023 WL 4635054, at *2 (Tex. App.—Amarillo July 19, 2023, pet.
ref’d) (mem. op., not designated for publication); Martinez v. State, No. 05-17-00817-CR, 2018 WL 2434409, at *5
(Tex. App.—Dallas May 30, 2018, pet. ref’d) (mem. op., not designated for publication).
-2-