*1 record, that under the terms of the IV. they settlement right retained the to seek conclusion, In I would hold that absent reimbursement if the settled claims were agreement an that the insured reimburse later held not to be covered. paying the insurer for to settle a claim that Casing covered, Frank’s also argues recog- is later held not to be there is no nizing the excess underwriters’ right contractual to reimbursement of the settlement right to reimbursement is unfair. I do not payment. agreement Such an may be in- agree. A trial court decided that cluded policy by insurance subse- against claims Casing, quent explicit Frank’s which the consent or conduct. agreed pay excess underwriters to set- parties’ contractual relationship tle, were not covered claims under the govern should an right insurer’s to reim- policy. Casing excess Frank’s did not analysis bursement. If our of this reim- determination, peal that it is therefore bursement issue were based on the com- settled. Casing Frank’s is not entitled contract, mon law of determined coverage insurance for risks for which it agreements between parties, rather paid premiums, and the excess under- than undefined foreign standards that are obligated pay writers are not for risks law, to contract the law this area would they agree did not to cover and for which be less perplexing and more In- certain. they received no consideration. Should sureds and pre- insurers alike benefit from the parties have desired to cover such dictability certainty in the law. risks, they could have consented such arrangement by defining scope of cov-
erage to include the claims at issue and
agreeing premiums on paid to be for such
coverage. they But did not.
And neither would I equitable create an
right to reimbursement this case. Ma- tagorda County left open very small COLEMAN, Appellant, Thomas window for insurers to seek reimburse- ment of payments settlement for claims later determined policy to be outside cov- The STATE of Texas. erage. The parties should sink or on swim agreements enter, they unless No. PD-0072-07. facts are such they change effect a Court of Appeals Criminal of Texas. parties’ agreement under traditional law, principles of contract changed by are Feb. fraud, extortion, Legislature, or involve fact, mutual mistake of or another basis altering Deciding contract. this case balancing
based on a equitable rights significantly
reimbursement would widen
this window but would invite insurers and unnecessarily
insureds to introduce the un-
certainty and unpredictability of restitu-
tionary theories into these situations when
the relationship is one based on contract. *3 Warrick, Lubbock,
Daniel J. Appel- lant. trial, handle qualified to Hatch, Attorney, Plain-
Wally District had Horn, attorneys pro view, Atty., Jeffrey L. State’s therefore Van repre- Austin, authority their legal to continue State. The trial court of the State. sentation OPINION jury appel- found motion. A denied this per- aggravated guilty lant of one count COCHRAN, J., opinion of delivered the held that it was jury. appeals court of PRICE, MEYERS, in which the Court attorneys pro tem to error to allow the HOLCOMB, WOMACK, JOHNSON agree.2 appellant.1 We JJ., joined. In this *4 I. in the participating recused himself 1999, part in what appellant In took investigation prosecution of perjury “Tulia” narcotics the notorious became a of interest. because of conflict appellant the “Tulia” de- sting Four of operation.3 attorneys two judge The trial Jr., Brookins, Christo- fendants —Freddie grand-jury to handle the investi- pro tem Jackson, Moore, and pher Joe Welton needed, and, any subsequent if gation Jason Williams —filed writs Jerome solely were prosecution. These challenging their convic- corpus twenty-one habeas for the case for responsible joint in a evi- trial, testified Appellant a new tions.4 days months. dis- Nine before habeas dentiary hearing regarding these Appellant then trict took office. in of 2003.5 Swisher applications new March arguing filed a motion that the Coleman, State, - S.W.3d -, -, in Mr. who beginning od 1. Coleman v. No. n 2, 3408407, white, 07-05-0042-CR, no surveillance 2006 at used electronic WL n 4 10155, drug no evi- (Tex.App. suspects and recovered Tex.App. 2006 LEXIS dence, 2006). years of the arrest later some Amarillo bo- reports filed determined to be he were granted appellant's 2. We review on two gus. grounds, ask: which 2000, testimony his in 1999 and Yet 1) attorney pro appointment an Does the eight those he had arrested all but caused tem, disqualification during the of an elect- convicted, through either verdicts to be attorney, ed district continue after the dis- plea Many bargains. were sentenced qualified successor takes years. prison 90 terms of as much as office? Barnes, Rogue Agent in Texas Steve Narcotics 2.07, 2) disregard Can Article the trial court Case, Guilty Perjury Is N.Y. Found Times, ap- Texas Code of Criminal Procedure and 15, 2005, 5A, http://www. at available Jan. point beyond an tem to serve nytimes. 5tulia.html com/2005/01/15/national/l attorney? disqualification of the state’s 4, 2008). (last February visited Hanna, 3. See Bill Advised Court To *1, Sheriff at-, 3408407, Coleman, 2006 WL (Fort Worth), Attorney, Telegram Get Star 10155, Tex.App. *1. 2006 LEXIS 13, 2005, 1999, ("In Jan. at 4B Coleman was sting eventually part drug that led to the concerning un- Id. For additional facts Tulia, State, cases, see, 46 defendants in 39 of convictions of e.g., v. No. derlying Brookins 246581, 07-00-0159-CR, was main whom were black. Coleman 2001 Tex. 2001 WL person the sole to tes- witness-and sometimes App. (Tex.App.-Amarillo March LEXIS 1680 cases.”). drug State, tify prosecution 13, 2001, for the pet.); v. No. 07-00- no Moore it, newspaper 1505935, 0003-CR, Tex.App. As one national described 2000 WL 10, TEXTS (Tex.App.-Oct. Amarillo Working in the Panhandle town undercover State, ref’d); 2000, No. 07- drug investiga- pet. Williams multicounty Tulia 1532880, 00-0184-CR, force, Tex. 2000 WL Mr. Coleman arrested tion task 16, women, black, App. (Tex.App.-Amarillo Oct. them on LEXIS men and most of 2000, peri- pet.). charges during an 18-month narcotics County Attorney Terry January District the newly McEac- elected district Hatch, hern represented attorney, the State of Texas in Wally took office. hearing, that as underlying well as days later, on January Six ap- criminal An prosecutions. investigation (1) pellant’s counsel filed two documents: into appellant’s possible perjury initi- “Objection ‘Special Prosecutors’ Rod testimony ated hearing.6 that Hobson John Nation” and a “Mo- Mr. McEachern then filed a motion ” tion Recuse ‘Special Prosecutors.’ De- stating recusal judge, with the trial argued original fense counsel “represented because he the State of “conflict of grounds interest” for the during Texas the trial of in- the cases pointment attorneys pro of the tem no Texas, volving County, Swisher he has a longer newly existed because the conflict of interest in presenting not having been involved cases against prosecuting witness cases, drug sting the Tulia was not Coleman.” Mr. requested McEachern Therefore, disqualified. argued, prosecutor” that a “special appointed. be authority trial did not have to contin- granted mo- recusal ue the attorneys pro *5 tion. He two attorneys, Rod appellant’s tem. The trial court overruled Nation, Hobson John special pros- and “as objection and denied his motion. After a engage necessary ecutors to in all acts to five-day trial, jury appellant convicted of present the County Jury Swisher Grand one count of aggravated perjury and sen- any concerning involving cases offenses him years’ imprisonment, tenced to seven Coleman, Tom and if said cases are true- placed but recommended that he be on billed, engage necessary in acts any to community supervision. Appellant Coleman.” in- was appeal, On appellant claimed that the dicted three of aggravated per- for counts court denying trial erred his motion to jury. “Special recuse the Prosecutors.”7 The later, Five and a half trial months the of appeals disagreed court and noted that granted court appellant’s motion a con- for the language of order does “[t]he [recusal] newly tinuance to allow a added defense suggest not it was limited to actions occur- attorney to become familiar with case. during ring McEachern’s term of office.”8 was, time, The trial at that set to on begin argued that, Appellant also allowing 24, 31, May 2004, appel- 2004. On March attorneys pro tem to in continue lant requested another continuance be- office, after case Mr. Hatch took the trial attorneys cause of one his had a personal court effectively “removed” the new dis- matter arise that could not be handled so, attorney trict Not from case.9 judge granted before trial. The trial explained: appellate “Nothing court continuance, second new trial date record before us indicates that Hatch con- eventually 10, January set for 2005. authority sidered the of Attorney
District McEachern’s of office, term tem terminated when he assumed 31, office on objection ended December 2004. On or that he had to their comple- Coleman, at-, 3408407, *1, 6. Id. WL at 2006 10155, Tex.App. 2006 LEXIS *1. *2, at-, 3408407, Id. WL at 2006 2006 n 2, -, at 2006 WL Tex.App. LEXIS at *4-5. Tex.App. Tex.App. LEXIS LEXIS 10155, *4. court the district may request they for ified duties which were
tion in a particu- himself him to recuse permit pointed.” procedure for This good case cause. lar dis- granted appellant’s petition for We con- attorney to avoid allows district trial cretionary to address review appearance flicts of interest even authority permit court’s partici- not to by deciding impropriety representation to continue his trial cases.14 Once the pate certain original rationale State Texas recusal, voluntary approves his court has ended. “disquali- is attorney deemed district making responsibility fied.” II. himself is on district recuse decision law, district “[e]ach Under Texas himself; court cannot attorney all attorney represent the State in shall his require recusal.16 his courts of criminal cases is appeals” district and in from those cases.11 When (or however, voluntarily has recused are, disqualified There a few instances ab disqualified), deemed legally is dis himself been which district, from or otherwise unable acting.12 example, For sent qualified duties, the trial adversely perform cannot to the “be counsel competent per A any appoint any court[.]”13 State attorney.17 legally disqual- who form duties 3408407, n at-, appearance of to avoid the 10. Id. 2006 WL conflict interest *6 10155, impropriety). Tex.App. LEXIS at *5. 2.07(b-l). 15. TexCode Crim. Art. Proc. 2.01. 11. TexCode Crim. Proc. Art. State, 223, 229 Johnson v. 169 S.W.3d 16. 2.08; Art. also 12. See TexCode Crim. Proc. see ("A (Tex.Crim.App.2005) prosecutor’s refusal 392, Guerra, (Tex. re 235 In S.W.3d 420-24 be from the case cannot to recuse himself 2007, (hold- orig. proc.) App.-Corpus Christi no au- the trial court has corrected because ing disqualify that a trial court can a district recusal.”); thority State ex rel. Hill to a force attorney appoint attor- without notice and an Pirtle, 921, (Tex.Crim.App. v. 887 S.W.2d 939 ney pro jury grand tem when to a seeks 1994) attorney initi- (stating "the district must investigate attorney possible for 2.07”). ate his recusal under art. own activities). criminal 2.07(a). Article TexCode Crim. Proc. Art. (“District 2.08 13. TexCode Crim. Proc. Art. states, pertinent part, 2.07 county not be counsel shall any any adversely the (a) to State in attorney the is Whenever an for state court, they, they be shall cease to any proceed- nor disqualified to act in case or officers, district, adversely to the county such be counsel ing, or or is from the absent they any case in which have been of State perform unable to the duties of is otherwise State, State.”); office, the see Holland v. counsel for is where there or instance 366, (Tex.App.-Beaumont state, 729 S.W.2d 368 the of the attorney no for 1987, pet.) (noting may that article 2.08 “dis- represents the state court which prosecuting attorneys qualifies attorney competent perform former to appoint any they been switching during sides in cases where have the absence of the office the duties state."). attorney disqualification of counsel for for or state. Edwards, rel. v. 793 14. See State ex Eidson (dis- (b 1) 1, attorney not (Tex.Crim.App.1990) state who is An for the 6 & n. 6 S.W.2d — request to disqualified act the court legal disquali- to cussing the distinction between in a for permit to recuse himself case possible for him voluntary fication and recusal a 82 attorney appointed replace attorney
Once an is to appointment.20 pro a The “during acts the absence or appointed disqualification district attorney attorney of the for the state.”21 must file an with oath the clerk of the already attorney court unless he an is for concept temporary attorney of a for attorney State.18 The is new, unique State is not nor is it an attorney pro called tem.19 The attor- Other Texas. states have enacted similar ney pro tem stands in the place of the provisions and allow for the regular attorney per- for the state and temporary prosecutors when normal all forms attorney duties the state prosecuting is attorney disquali- unable or performed would have under the Although many terms of fied to act.22 do con- 624, upon State, good approval by cause and (Tex.App.- v. 956 S.W.2d 1 625 n. disqualified. 1997, ref’d). is pet. Texarkana (c) appointed attorney If the is not an attor- 357, (Tex.1872) Lackey, State 35 Tex. state, ney qualified perform he is ("A legally district tem. is au- period the duties of the office for the thorized do whatever the law authorizes disqualification attorney absence of the do.”); Rosenbaum, attorney district filing state an on oath with the clerk at 529. S.W.2d compensa- of the court. shall He receive tion same amount and manner as an 2.07(a); 21. TexCode Crim. Proc. Art. see also attorney appointed represent indigent 2.07(c) (allowing Proc. Art. Crim. TexCode person. appointed attorney pro perform tem "to Tex.Code Crim. Proc. Art. 2.07. period duties of office for the of absence disqualification attorney for the 18. Tex.Code Crim. Proc. Art. 2.07(c). state”). 2.07; 19. TexCode Crim. Proc. Art. Marbut v. See, e.g., § 12-17-189 Ala.Code State, (Tex.App.-Waco S.W.3d ("When any suspended, ref'd); State, pet. Stephens v. appoint court shall (Tex.App.-Austin pet. S.W.2d tem, perform who shall duties of office ref’d). Although "attorney pro the terms appoint- ... from such "special prosecutor” tem” and are sometimes original suspending ment until the order interchangeably many used and have similari- aside.”); shall be set *7 Ga.Code ties, fundamentally the two are different. See (2007) (“(a) § a 15-18-5 When district Ann. Rosenbaum, State v. 852 S.W.2d attorney’s disqualified office is from interest (Clinton, J., (Tex.Crim.App.1993) concurring). relationship engage prosecution, or to in a the Both are who are not members of attorney notify Attorney district shall the Gen- regular attorney’s the district staff. Id. But a disqualification. Upon receipt eral of the of special prosecutor participates notification, only in a case Attorney such the General shall: by attorney (3) to the extent allowed the Appoint district competent attorney ... to act as operates supervision. and under his attorney tempore Id. An pro place district in of the attorney pro (d) tem assumes all the duties of the attorney appointment district The .... of and, independently, district attorney pro tempore specify acts the district shall effect, replaces attorney. writing the district Id. or the court to which the courts special prosecutor appointment applies, county need not take an oath of the or counties tem, located, covered, attorney pro period office. Id. The if not an where the time and state, attorney for the must take an oath. the of the or Id. name case cases to which such approval special prosecutor appointment apply.”); Court for a is not shall Code Idaho Ann. 31-2603(a) (2007)(“(a) required responsibility prosecut- § because the ultimate When the special prosecutor’s ing attorney county for the actions for remains the is absent the court, attorney. with the district Id. In con- or ... when he is unable attend to to trast, duties, approve ap- upon may, peti- the trial court must the his the court district pointment attorney pro prosecuting of attorney an tem. Id. See tion of the board or of commissioners, also, Guerra, (Tex. county by In re 235 S.W.3d an order entered in minutes, therefor, App.-Corpus orig. proc.); Rogers stating Christi its the cause be himself disqualified and long ney recused describing how explicit language tain authority testify to in the called attorney pro an tem retains he could be such cause statute, act, for Georgia’s to some do. trial.26 The perjury defendant’s the example, provides “appointment that tem appointed attorney pro an then shall attorney pro tempore district the the case.27 “investigate” “prosecute” and to the cov- writing period ... time specify had, held the We ered, to or cases name of case appointment, the terms of under shall appointment apply.”23 such which perform all duties that authority to performed re have attorney could district has been
Our Texas statute
“investigation”
“prosecu
to that
lating
performance
encompassing
read as
Thus,
appeal.28
an
tion,” including taking
contem
“germane
all
functions
office
normally
appointment
duration of the
Thus, by plated
appointment.”24
appoint
upon
terms of the
depends
attorney
tem lasts
pro
order;
inexorably
it
bound
is not
ment
contemplated by that
purposes
until
disq
of the district
in the duration
example,
fulfilled. For
appointment are
Rosenbaum,25 State v.
Attor
District
ualification.29
powers of
thereupon
with all the
point
person
perform
to
be vested
some suitable
.”);
being,
attorney
purpose...
time
or for the trial of such accused
state’s
such
(2007) ("(a)
prosecuting
person, the
attor-
If the
§
duties of such
8-7-106
Tenn.Code Ann.
ney,
person
and the
so
has all
attorney general fails
attend
court,
powers
prosecuting attorney,
while so
disqualified
or criminal
is
circuit
such.”);
acting
§ 69.060
as
vacancy
Ky.Rev.Stat.
acting,
or if there is
from
office,
Ann.
(LexisNexis 2007) ("Whenever
the Common-
appoint
other at-
the court shall
some
absent,
attorney
county
wealth’s
attorney gener-
torney
supply
such
Judge
appropriate
Chief
of the
court
dis-
place temporarily. The acts of such
al’s
appoint a
Common-
suitable
act as
attorney general pro
valid
tem shall be as
trict
attorney during
county
wealth’s or
his ab-
officer,
regular
and the
if done
as
the re-
sence
criminal cases in
enti-
attorney general
tem shall be
court.”);
spective
§
25-31-21
privileges,
Miss.Code Ann.
emolu-
to the
tled
same
("If,
impaneling the
at the time of
ments.”).
court,
jury
grand
circuit
the district
perform
be
absent or unable to
15-18-5(d)
(2007).
23. Ga.Code Ann.
§
or,
impaneling
grand
if
duties
jury,
be
or unable
absent
Rosenbaum,
(Clinton,
852 S.W.2d
perform
disqualified, the
his duties or be
J., concurring).
appoint
shall
forthwith
some
place
law to act for the state
(Tex.Crim.App.1993).
S.W.2d
25. 852
attorney during
his absence or inabili-
*8
disqualification,
person appoint-
ty or
and the
Id. at 526.
26.
discharge
power to
all the
ed shall have the
during
or
of
office
the absence
duties
Id.
inability
disqualification of
at-
torney_”);
§ 7-16-2
S.D. Codified Laws
Id. at 528.
court,
(“The
(2007)
there
circuit
whenever
attorney
county or
be no state’s
for the
shall
Manlove, 33
attorney
ex rel.
Tex.
is
or unable
29. See State
when
state’s
absent
(1871) (the
power” to
court has "full
adversely interest-
attend to his duties or is
and
an attor-
disqualified, may appoint, by
"appoint
remove
discretion”
an order
ed or
court,
court,
during
of
ney pro tem act
that term
entered in the minutes of
to be
may
appointment to contin-
attorney
he
order "the
duly
counselor
and
some
licensed
and
court,
consequently
the will
perform
being the duties
ue at
of
for the time
law to
judgment
of
whenever an order
by
performed by the state’s
to end
required
law to be
direct.”).
should so
person
appointed
so
shall
court
and the
III.
ty for a
a properly
case that
attorney pro
has been handling.31
tem
Appellant claims that the court
Mr.
represented
McEachern
appeals
of
following
erred
not
plain
State of Texas in the writ
hearings
language of Article 2.07. He argues that
which Coleman
perjury,
committed
as well
the statute
limits an
tem to
previous
as
trials at which Coleman
serving only “during”
disqualification
testified.
If Mr. McEachern
repre
had
of the district
and that
the dis
case,
sented the
this
State
he would
qualification in this ease ended the moment
potential
have created
the realistic
the newly
that
district attorney
elected
conflict of
Although
interest.
a district
took office.30
may
conflict
interest
not be
legal disqualification,32
ap
Mr McEachern
responds
State
the trial court
propriately
to recuse
asked
himself
statute,
not disregard
did
that Mr.
appearance
avoid the
of impropriety. He
disqualification
McEachern’s
continued af-
became disqualified to act
in this case
office,
ter he left
and that
there is no
when
signed
the trial court
the order
statutory requirement
newly
that a
granting his
motion
appointing
recusal
must assume
responsibili-
pro tem.33
Government,
appellant
30. Neither the
nor the
against
State have
taken at their
worst
mentioned or
standing
present
spectacle
addressed
issue of
prosecu-
does not
of a
party
this case. When neither
using
raises stand-
tor's
the ‘awful instruments of the crim-
ing,
appellate
may
and,
raise the
issue on
purpose
private
inal law’
gain
... for
State,
its own. Kothe v.
152 S.W.3d
although we
as
consider
choice of Puccio
(Tex.Crim.App.2004).
That court
also
advised,
prosecutor
been
to have
ill
we do not
conclude that the State has forfeited that ar-
regard
having deprived
it
Wright
as
of due
gument because
it failed
raise it in the trial
most,
process
very
law. At
and the
Id..;
Price,
court.
see also United States v.
far,
allegations
go
scarcely
deprived
it
(7th Cir.1995)
F.3d
(stating
that "be-
that,
him
prosecu-
of the chance
with another
principle
'standing'
cause Rakas’
is rooted
tor,
might
undeservedly escaped
in-
have
in the substantive law of the Fourth Amend-
consequent
dictment
conviction for
[jurisdiction
ment and not Article III
properly
crimes of which he was
be
found to
courts],
government may
waive these
guilty.”).
parties
Because
have never
(citation
types
standing objections”)
omit-
1139,
standing
mentioned
issue or briefed it
ted);
DeGasso,
United States v.
369 F.3d
courts,
appellate
the trial or
we conclude that
(10th Cir.2004)
(concluding
n. 3
the State has forfeited this issue and decline
standing
govern-
issue was waived because
sponte.
to address it sua
it).
ment had never raised
very
In this
we need not address the
standing
Whether a
has
defendant
to chal-
different issue of whether the trial court could
lenge
duly appointed attorney pro
that a
newly
have denied the
elected district attor-
proper
is not
person
him ais
ney’s request
to withdraw an
See,
potentially complex
e.g., Fairley
issue.
tern’s
had he made such a re-
State,
682, 690,
163 Miss.
85 hearing, trial denied judge the the newly the district attor- sion of When elected Hatch, appellant’s motion. Wally replaced took office and ney, McEachern, any he did not have con- Mr. modify The not to decision appellant. If he had flict of interest with attorneys tem pro appointing order so, to Mr. Hatch could have wanted do court’s sound discre was within the trial trial court terminate the requested the to that tion will not disturb decision and we tem appointment attorneys pro of the be- of discretion.36 Because absent an abuse duly district at- cause was (1) non-disqualified district new and torney disqualified not act- only days nine had taken office But Hatch to have the ing. Mr. chose (2) trial; new start prior to the of represent attorneys pro tem continue to object allowing did not to State, presumably they because were continue; pro tem to ably handling prepared the case and were had over attorneys pro spent two trial. for the imminent As court of twenty-one researching, investigat months noted, there is appeals no evidence ing, case for a trial that preparing objected Hatch to record that Mr. imminent; (4) the trial would was then attorneys pro tern’s in this actions case.34 (during have months earlier Mr. occurred tenure) hand, for
Appellant,
but
the defense-
on the other
did McEachern’s
continuances,
agree that the
object
requested
to
we
participation
the continued
the trial
attorneys pro
allowing
a
trial
did
err
tem.
trial
held
attorneys pro tem
modify
proceed
to
his
to
with the
hearing
decide whether to
Any
ruling
the State.37
other
original
explicitly
representing
order which
directed the
tri
only
delay
further
attorneys pro tem “to
acts would serve
to
engage
of
una
necessary
increasing
That
chances witness
to
Coleman.”
al—
failure,
face,
disap
would,
vailability
memory
or
appointment order
on its
last
evidence,
delay
justice
“investigation”
as
and a
of
long
“prosecu
pearance
as
or
of
community.38
appellant
appellant
tion” of
lasted.35 At the
and the
eonclu-
both
at-,
3408407,
Coleman,
*2,
We will not
2006 WL
trial court’s sound discretion....
10155,
Tex.App. LEXIS
dis-
2006
at *5.
that decision absent
abuse of
disturb
cretion.”).
counsel
As motion to substitute
Rosenbaum,
35. See
852
at 526-28.
S.W.2d
regarding the
or
and a motion
attorney pro tem are function-
removal of an
36. We
trial
decision on a mo-
review
court’s
ally equivalent, we
them under
review
tion to substitute counsel under an abuse of
same standard.
State,
King
discretion
v.
29 S.W.3d
standard.
556,
(stating
(Tex.Crim.App.2000)
"appel-
566
Rosenbaum,
37. See
852 S.W.2d
lant has
trial court abused
not shown
refusing
its discretion in
the motion with-
707-08,
Jones,
681,
v.
U.S.
38. See Clinton
State,
958,
draw”); Keys v.
486 S.W.2d
1636,
(1997) (stat-
court’s attorneys decision have the pro represent continue to the State of through stage
Texas the trial of this crimi-
nal proceeding.39 that, case,
We hold the trial required
was not replace attorneys pro tem in case that set for trial ten LUCERO, Appellant Jimmie Urbano days new district in- Appellant vestiture. has failed to show The STATE of Texas.
that the trial court its abused discretion or that he suffered as a harm result of No. AP-75247. the trial court’s action. af- We therefore Court of Criminal Appeals of Texas. firm judgment of appeals. the court Feb. KELLER, P.J., filed a concurring opinion in which KEASLER JJ.,
HERVEY, joined.
KELLER, P.J., concurring filed a
opinion in which KEASLER and
HERVEY, joined. jj.,
I agree that the trial did not err
when it modify refused to order
pointing tem. I pro do not
join the Court’s conclusion that deci-
sion was “within the trial court’s sound 1 Saying discretion.” court has suggests
“discretion” the trial court power type have the in this of situa-
tion contrary to act to the wishes of the attorney-a
district proposition that is at
least questionable.2 In this we need
not resolve whether the trial court could
ever contrary act to the wishes of the attorney regarding whether
withdraw an appoint- tern’s
ment. outgoing had himself,
recused incoming and the attempted has rescind that Tex.R.App. Edwards, 44.2(b). 2. See State ex rel. Eidson v. P. (Tex.Crim.App.1990) (plurality S.W.2d 4-7 op)(recusal is a matter op. 1. See Court's at 12. solely within the discretion at- torney).