                                                                                                ACCEPTED
                                                                                            04-15-00513-CR
                                                                                FOURTH COURT OF APPEALS
                                                                                     SAN ANTONIO, TEXAS
                                                                                     10/20/2015 11:39:26 PM
                                                                                             KEITH HOTTLE
                                                                                                     CLERK

                                  No. 04-15-00513-CR

                                     IN THE                                FILED IN
                                                                    4th COURT OF APPEALS
                           FOURTH COURT OF APPEALS                   SAN ANTONIO, TEXAS
                                    OF TEXAS                       10/20/2015 11:39:26 PM
                             AT SAN ANTONIO, TEXAS                    KEITH E. HOTTLE
                                                                            Clerk


EDWARD HOUSTON                                                          APPELLANT

V.

THE STATE OF TEXAS                                                        APPELLEE



     MOTION TO RECONSIDER THE ORDER GRANTING RICHARD B.
        DULANY, JR.’S MOTION TO WITHDRAW AS COUNSEL


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS OF TEXAS:

          COMES NOW, EDWARD HOUSTON, the Appellant in the above styled

and numbered cause, through the undersigned counsel, pursuant to Texas Rules of

Appellate Procedure 10.2(c) and 10.3, and files this request for the Court to

reconsider its order granting the undersigned’s motion to withdraw as counsel for

the Appellant. In support of this motion, undersigned counsel respectfully shows the

following:

     I.      The factual basis for this request:

          The trial court appointed the undersigned, in his former capacity as Interim

                                             1
Chief Public Defender of Bexar County, Texas, to represent the Appellant in this

case. On September 24, 2015, the undersigned attorney was abruptly fired by Chief

Public Defender Michael Young and is no longer employed by the Bexar County

Public Defender’s Office. The undersigned attorney offered to continue to represent

the Appellant in this case, but Mr. Young refused. The undersigned attorney has no

access to the physical file that he created for this case and can do no further work on

the Appellant’s behalf. The undersigned informed the Clerk of this Court of these

facts. Nevertheless, the undersigned was still listed as lead counsel in this case per

the Court’s website.

      To avoid being held accountable for any further delay in this case, and also to

avoid being held accountable for some other person’s filings or similar actions,

made without the undersigned attorney’s knowledge or consent, the undersigned

formally moved to withdraw as counsel for the Appellant. In his motion to

withdraw, he specifically prayed that this appeal be abated and remanded to the trial

court to determine whether he should remain as the Appellant’s court-appointed

counsel. The undersigned explicitly stated that he was willing to continue to

represent the Appellant in this case. As is required by Rule 6.5(a) of the Texas Rules

of Appellate Procedure, the undersigned provided a copy of the motion to withdraw

to the Appellant and notified him of his right to object to the motion. By sworn


                                          2
affidavit, the Appellant has since notified the Clerk of this Court that he would like

for the undersigned to continue as his court-appointed counsel. Yet this Court had

already issued an order granting the undersigned’s motion to withdraw and

designating Michael D. Robbins as the Appellant’s “new attorney of record.” All of

these facts are within the personal knowledge of the undersigned attorney.

   II.      The motion to withdraw was determined prematurely:

         Rule 10.3 of the Texas Rules of Appellate Procedure provides that a motion

should not be heard or determined until 10 days after it was filed, subject to certain

exceptions that do not apply here. The undersigned filed his motion to withdraw on

October 2, 2015. This Court issued its order granting the motion just six days later,

on October 8, 2015. The motion was determined prematurely and without the benefit

of the Appellant’s written objection with his request that the undersigned remain as

his court-appointed counsel. For that reason, the undersigned requests that this Court

reconsider its order. See TEX. R. APP. P. 10.3(b).

   III.     The appointment of counsel rests within the discretion of the trial
            court, not this Court:

         The discharge of appointed appellate 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). See also TEX. CODE CRIM.

PROC. ANN. art. 26.04 (a) & (f)(1). As the undersigned stated in his motion to

                                          3
withdraw, he will continue to represent the Appellant in this case. This Court was

without authority to accept the entry of appearance of an attorney from the Bexar

County Public Defender’s Office as lead counsel of record. Clearly, the Appellant

wishes for the undersigned to continue as his appellate counsel. The appointment of

court-appointed appellate counsel should be determined by the trial court.

                                        PRAYER

       THEREFORE, undersigned counsel for the Appellant prays that this Court

abate this appeal and remand this case to the trial court to determine whether the

undersigned should remain as the Appellant’s counsel. As always, the Appellant

also asks this Court to grant all such relief as is fair and just.


                                          Respectfully submitted,

                                          RICHARD B. DULANY, JR.
                                          Texas Bar No. 06196400
                                          Attorney at Law
                                          P.O. Box 782524
                                          San Antonio, TX 78278
                                          (210) 373-2303
                                          (210) 444-9070 fax
                                          richarddulany@gmail.com

                                          /s/ Richard B. Dulany, Jr.
                                          ___________________________________
                                          RICHARD B. DULANY, JR.

                                          ATTORNEY FOR APPELLANT


                                             4
             CERTIFICATE OF SERVICE AND COMPLIANCE

      The undersigned does hereby certify that a copy of the above motion was

delivered by electronic service to the Appellate Section of the State’s Attorney:

Nicholas A. LaHood, Criminal District Attorney, Bexar County District Attorney’s

Office, Appellate Section, 101 W. Nueva St., Suite 710, San Antonio, Texas 78205,

on October 20, 2015. The word count is 845.

                                       /s/ Richard B. Dulany, Jr.
                                       ___________________________________
                                       RICHARD B. DULANY, JR.




                                          5
