                            NUMBER 13-15-00301-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CHARLES LEE,                                                                 Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 167th District Court
                         of Travis County, Texas.


                          ORDER OF ABATEMENT
              Before Justices Garza, Benavides, and Longoria
                             Order Per Curiam

      Appellant, Charles Lee, appeals from a denial of his motion for DNA testing. His

appeal was transferred to this Court from the Third Court of Appeals by order of the Texas

Supreme Court.     See TEX. GOV'T CODE ANN. § 22.220(a) (West Supp. 2011)

(delineating the jurisdiction of appellate courts); TEX.GOV'T CODE ANN. § 73.001 (West
2005) (granting the supreme court the authority to transfer cases from one court of

appeals to another at any time that there is “good cause” for the transfer).

         Counsel for appellant, David W. Crawford, has filed a motion to withdraw as

counsel in this cause. Appellant’s counsel has notified this Court that appellant has filed

a motion with the trial court requesting that counsel be removed from representation on

this matter.

         A defendant does not have the right to choose his own appointed counsel. Unless

he waives his right to counsel and elects to proceed pro se, or otherwise shows adequate

reason for the appointment of new counsel, he is not entitled to discharge his counsel but

must accept the counsel appointed by the trial court. Thomas v. State, 550 S.W.2d 64,

68 (Tex. Crim. App. 1977).        Adequate reason for the discharge of counsel and

appointment of new counsel rests within the sound discretion of the trial court. Carroll v.

State, 176 S.W.3d 249, 255 (Tex. App.–Houston [1st Dist.] 2004, pet. ref'd).

Furthermore, the trial court is under no duty to search until it finds an attorney acceptable

to an indigent defendant. Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel

Op.] 1982); see Camacho v. State, 65 S.W.3d 107, 109 (Tex. App.–Amarillo 2000, no

pet.).

         In those circumstances where the appointment of substitute counsel may be an

issue, an appellate court, when faced with a motion to withdraw, should abate the

proceeding to the trial court for determination. 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


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attack. See Lerma v. State, 679 S.W.2d 488, 493 (Tex. Crim. App. 1982). Thus, we

now ABATE the appeal and REMAND the cause to the trial court for further proceedings

consistent with this order.

       Upon remand the trial court shall utilize whatever means necessary to determine

whether appellant’s court-appointed attorney should remain as appellant's counsel; and,

if not, whether appellant is entitled to new appointed counsel or waives his right to counsel

and elects to proceed pro se. If the trial court determines that there is no reason to

discharge appellant’s current appointed attorney 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. If the trial court

determines that appellant waives his right to counsel and elects to proceed pro se, the

court shall enter an order to that effect. The trial court shall further cause its order to be

included in a supplemental clerk's record to be filed with the Clerk of this Court on or

before the expiration of thirty days from the date of this order.

       It is so ordered.

                                                         PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of October, 2015.




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