BRYANT v. STATE

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Court of Appeals of Texas,Fort Worth.

Casey Denundra BRYANT, a/k/a Casey D. Bryant, Appellant, v. The STATE of Texas, State.

No. 2-00-213-CR.

Decided: November 15, 2001

Panel B:  DAY, DAUPHINOT, and GARDNER, JJ. The Kearney Law Firm;  Jeff Kearney, Wm. Reagan Wynn, Fort Worth, for appellant. Tim Curry, Criminal District Attorney;  Charles M. Mallin, Chief of Appellate Division, David M. Curl, Ass't District Attorney, Fort Worth, for appellee.

OPINION

A jury convicted Appellant Casey Denundra Bryant of the offense of aggravated sexual assault of a child younger than fourteen years of age and assessed his punishment at forty years' confinement.   Appellant raises a single issue on appeal, contending that the trial court abridged his right to qualified appointed counsel under articles 1.051 and 26.04 of the Texas Code of Criminal Procedure.1  We affirm.

BACKGROUND

On December 8, 1998, Appellant was indicted for the offense of aggravated sexual assault of a child.   On April 28, 1999, Sara Spector, acting as Appellant's attorney, filed a motion to set reasonable bail on his behalf.   On October 12, 1999, the trial court, on its own motion, signed an order appointing Larry Coker to defend Appellant in this case.   On February 4, 2000, Spector filed a motion for a court-appointed private investigator on Appellant's behalf in the trial court.   The motion noted Spector's address as follows:

Law Office of LARRY G. COKER

530 Bedford Rd.

Suite 112

Bedford, TX 76022

On May 30, 2000, Appellant appeared for trial with Spector as his attorney.   Before the start of voir dire, the following exchange occurred between the trial court and Spector:

THE COURT:  ․ Counsel, are you going to file an election for punishment?

MS. SPECTOR:  Yes, Your Honor.

THE COURT:  You were appointed by Judge Drago;  is that correct?

MS. SPECTOR:  Yes, sir.

THE COURT:  And when were you appointed?

MS. SPECTOR:  October of 1999.

THE COURT:  So you have been representing Mr. Bryant since that time?

MS. SPECTOR:  Prior to that time, Your Honor, we were hired.

THE COURT:  Is that correct, Mr. Bryant?

THE DEFENDANT:  Yes, sir.

THE COURT:  Okay.

MS. SPECTOR:  Do you want me to put some things on the record about the firm representing him?

THE COURT:  I think we've established what we need to establish here.

During voir dire, Spector told the jury, “I work for Larry Coker.   He's an attorney here in Tarrant County.   And I'm an attorney I've been working with him for two years.”

DISCUSSION

Appellant argues that he was harmed by the trial court's sua sponte substitution of Spector for Coker as Appellant's appointed trial counsel because Spector lacked the training and experience necessary to effectively defend Appellant against a charge of aggravated sexual assault of a child.   Appellant further contends that his right to qualified appointed counsel under articles 1.051 and 26.04 of the code of criminal procedure was violated by the substitution of counsel without judicial approval.

Appellant correctly points out that an indigent defendant has the right to appointed counsel and that trial courts have an affirmative duty to appoint competent counsel to represent indigent defendants.2  The crux of the issue before this court is whether a trial court appoints an entire law firm by appointing an individual attorney within the firm and whether the individual lawyer appointed by the court may, without judicial approval and without the knowledge or approval of the defendant, arbitrarily substitute another attorney to represent the defendant.

 As an initial matter, the State argues that Appellant forfeited any complaint concerning Spector's representation of him by failing to object at trial to the substitution of counsel.   We disagree.   The record before us reveals that the trial court appointed Coker to represent Appellant.   At trial, however, Appellant was represented by Spector, an associate in Coker's firm.   Nevertheless, Spector represented to the trial court that she had been appointed as counsel for Appellant.   Furthermore, we note that the trial court appointed Coker on its own motion;  Appellant did not sign a request for counsel.   The record reflects that Judge Drago, presiding in Criminal District Court Number Four, appointed Coker to represent Appellant.   Prior to trial, however, Appellant's case was transferred to the 213th District Court, where it was presided over by Judge Gill.

Consequently, it appears that both Appellant and the trial court may have been unaware that Spector was not the attorney named in Judge Drago's order appointing counsel.   Under these circumstances, we cannot perceive how Appellant could have been expected to object at trial on the grounds that he was being represented by an attorney other than the attorney appointed by the court when the record does not indicate that Appellant was even aware that a substitution of counsel had occurred.   In addition, it is unlikely that either Spector or Coker would have presented an objection to the trial court in this situation.   We decline to hold, therefore, that Appellant has waived his complaint regarding his representation in this case.

 Turning now to the merits of Appellant's challenge, we note a great deal of confusion exists in this case.   It is well established and undisputed that an indigent criminal defendant is constitutionally entitled to effective representation by competent counsel.3  This right is also statutorily protected.   Article 1.051 of the code of criminal procedure provides in pertinent part:  “A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding.” 4  Furthermore, it is well established that when counsel appears on behalf of a criminal defendant as his attorney of record, that lawyer, whether appointed or retained, is obligated to represent the client until the trial court actually grants a motion to withdraw or a motion to substitute counsel.5  Merely filing a motion to withdraw does not relieve the attorney of his or her obligation to fully represent the client.

Although the trial court had the authority to appoint counsel upon its own motion after a determination of indigence, article 26.05 of the code of criminal procedure provides that an appointed attorney may receive compensation only if he or she appears in court or otherwise affirmatively expends time and effort in representing the defendant.6  Here, the record indicates that Coker filed no motions, made no appearances, and performed no act that could be construed as the representation of Appellant in this matter.   Because he did not act as Appellant's counsel in any sense, he was not entitled under the law to compensation.   Spector acted as Appellant's retained counsel prior to October 12, 1999, when the trial court appointed Coker.   The record shows that Spector charged Appellant $2,500 for legal services provided on his behalf before Coker's appointment.   Additionally, in his testimony at the punishment phase of the trial, Appellant stated that he had been represented by Spector “since I've been incarcerated 15 months.”   Consequently, Spector's status as retained counsel of record never changed.7

 Spector represented to the trial court that she was appointed by Judge Drago in October 1999.   The record does not support this assertion.   Rather, the record clearly reflects that the trial court appointed Coker.   As Appellant points out, a trial judge is duty-bound to carefully evaluate the ability and experience of an attorney before appointing that attorney to handle a particular case.8  In accord with this duty, the attorney general has stated that “there is no appointment of ‘one or more practicing attorneys' when a trial court directs a ․ private law partnership to provide representation by one or more attorneys.” 9  Nor is there any authority for allowing an attorney to designate another lawyer to take his place as appointed counsel.   Lawyers do not appoint counsel for indigent defendants.   Only the court has that power.

Appellant argues that the trial court sua sponte substituted Spector for Coker as Appellant's counsel by allowing Spector to represent Appellant even though Coker had been appointed.   We disagree.   Spector was retained by Appellant, appeared as his retained counsel for more than a year before trial, and never withdrew her representation.   She, therefore, functioned as Appellant's retained counsel, not as appointed counsel.   The record does not reflect that Appellant ever discharged Spector or asked the trial court to substitute counsel.   Additionally, the record does not reflect that the trial court granted a motion to withdraw, or that Spector even filed such a motion.   Accordingly, we hold as follows:

• Spector appeared as Appellant's retained counsel more than a year before his trial commenced.

• Spector never withdrew as Appellant's retained counsel, and no attorney was every substituted as Appellant's counsel.

• Spector was never appointed as Appellant's counsel by the trial court.

• Spector functioned at all times solely as Appellant's retained counsel and was not entitled to compensation as appointed counsel.

• The “Law Office of Larry G. Coker” was never appointed as Appellant's counsel because such an appointment is a legal impossibility.

• Although Coker was personally appointed to represent Appellant by the trial court, he at no time acted as counsel and, because he performed no duties as Appellant's counsel, he was entitled to no compensation as court-appointed counsel.

• Coker had no authority to appoint or designate Spector as his substitute appointed counsel.

• Because Appellant appeared with Spector as his retained counsel, the trial court did not improperly substitute Spector for Coker sua sponte.

We overrule Appellant's sole issue.   In addition, consistent with the statement in Appellant's brief, we do not construe Appellant's claims of deficient representation as a separate argument that his conviction should be reversed for ineffective assistance of counsel but, rather, as a description of the harm emanating from the trial court's claimed sua sponte substitution of counsel.   Moreover, this opinion should not be read as suggesting any wrongdoing on the part of Appellant's trial counsel.   As we have noted, the record in this case reflects merely confusion and misunderstanding.   At all times, both counsel and the court conscientiously protected Appellant's interests.   Appellant was not denied any statutory right to appointed counsel.

CONCLUSION

Having overruled Appellant's sole issue on appeal, we affirm the trial court's judgment.

FOOTNOTES

1.   Tex.Code Crim. Proc. Ann. art. 1.051 (Vernon Supp.2001), art. 26.04 (Vernon 1989).

2.   See U.S. Const. amend. VI;  Tex. Const. art. I § 10;  Rodriguez v. State, 170 Tex.Crim. 295, 340 S.W.2d 61, 63 (1960).

3.   U.S. Const. amend. VI;  Tex. Const. Art. I § 10.

4.   Tex.Code Crim. Proc. Ann. art. 1.051(a).

5.   See id. art. 26.04(a) (“An attorney appointed under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel.”);   see also Tex.R. Civ. P. 10;  Tex. Disciplinary R. Prof'l Conduct 1.15, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9);  Ward v. State, 740 S.W.2d 794, 798 (Tex.Crim.App.1987);  Ditto v. State, 898 S.W.2d 383, 386 n. 4 (Tex.App.-San Antonio 1995, no writ).

6.   Tex.Code Crim. Proc. Ann art. 26.05(a) (Vernon 1989).

7.   See Gray v. Robinson, 744 S.W.2d 604, 606 (Tex.Crim.App.1988) (“We now hold that state funded attorney fees cannot be awarded for services rendered prior to the date that counsel is appointed to represent an indigent.”).

8.   Rodriguez, 340 S.W.2d at 63.

9.   Op. Tex. Att'y Gen. No. DM-354 (1995).

LEE ANN DAUPHINOT, Justice.

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