Case Information

*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/20/2015 11:39:26 PM KEITH E. HOTTLE Clerk *1 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 FOURTH COURT OF APPEALS OF TEXAS

AT SAN ANTONIO, TEXAS 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 *2 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

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 T EX . R. A PP . 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 [1 st Dist.] 2004, pet. ref’d). See also T EX . C ODE C RIM .

P ROC . A NN . art. 26.04 (a) & (f)(1). As the undersigned stated in his motion to

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 *5 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.