1 Sitting by assignment. NO. 07-06-0414-CR

NO. 07-06-0415-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A FEBRUARY

2, 2007

______________________________ JOHANSON LEE W ATSON, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 4 6TH DIST RICT COURT OF W ILBARG ER COUNTY; NOS. 9479 & 9480; H ONORABLE TOM N EELY, JUD GE 1

_______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABA TEMENT AND REMAND Proceeding pro se, Appellant Johanson Lee Watson perfected these appeals from the trial court’s orders denying his motion for forensic DNA testin g. On November 16,2 The letter resulted from a misun derstanding durin g a t elephone conver sation between Gri ff in’s l egal secr etary and theappellate cour t clerk that

Appellant was proceeding pr

o se. 2 2006, this Courtabated th ese appeals and r emanded the causes to the trial court to determine whether App ellant was entitled to appoi nted counsel pur suantto article 64.01(c) of the Texas Code of Criminal Procedure. Per this Court’s directive, the trial court conducted a hearing and entered an order on December

6, 2006, appointing Earl Griff in to rep resent Appella nt in prosecut ion of these appeals. The order was includ ed in a supplemental cl erk’s record filed w ith the Clerk of this Court on December 12, 2 006. On January 11, 2007, Appellant pre sented to this Court his pro se “ Motion for Leave to Abate this Appeal

and Remand

the Cause for Futher [sic ] Proceeding. ” On February1, 2007, he also presented his pro se “ Motion for Lea ve for Abate this Appeal and Rem and The Cause for Appoi

ntment of N

ew Counsel ” an d ” Motion for Lea ve Appointm ent of Another Counsel to Pu rsue the A ppe al Pro ceed ing. ” These pro se motions were filed in response to a copy of a letter f rom Griffin’s legal secretary to the Clerk of this Court indicating Griffin had ceased repr esenting Appel lant. 2 In his motions, Appellant ex presses his desire not

to represent hi mself but reques ts that the tri al court subs titute appointed counsel due to “fricti on” between h imself and Griffin. As s uch, Appellant’s pro se motions amount to a request that this C ourt dischar ge Griffin and appoi nt new couns el.3 An attorney app ointed to repr esentan indigent defendant on appeal remains as the appellant’s attorney unt il the appeal is exhaus ted or the attorney

is relie ved of his duti es by an order of either

the trial court or theappellate cour t. Tex. Code Crim. Proc . Ann. art. 26.04(j)(2)

(Vernon Supp. 200 6), Tex. R. App. P. 6.5
4 Tex. R. App. P . 6.5. 3 Two problems prevent this Cour t from ad dr essing Appel lant’s motions . One, because Appellant isrepresented by counsel, 3 this Courtwill not consider no r take action on any motions, docu men ts, o r corr espo nde nce f iled by a pro se liti gant. Ex Parte Taylor, 36 S.W. 3d 883, 887 (Tex.Crim.App. 2001). Se condly, al though this C ourt may permit an attorney to withdr aw from repr

esenting a par

ty in the appellate court, 4 it does not have the authority to appoint

substitute counsel. The trial cou rthas the exc lusive r esponsibili ty for appointing counsel to represent indigent def endants, even after the appellate reco rd has been file d. T ex. Code Crim. Proc. Ann. art. 1.051(d) (Vernon 2005). See also Enriquez v. State , 9 99 S.W .2d 906, 907 (Tex.App. –W aco 1999, no pet.); Springer v. State , 94 0 S.W.2d 322, 323 (Tex.App.–Dallas 1997, no pet.).
Itshould be noted, however , that 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 otherw ise shows adequate reaso n for the appointment of new counsel, he i s not entitled to discharg e his counsel butmust accept the counsel appointed by the trial court. Tho mas v. State , 550 S.W.2d 64, 68 (Tex.Cri m.App. 1977). Adeq uate reason for th e dischar ge of counsel and appoin tment of new counse l rests w ithin the sound discretion of the trial court. Carroll v. State, 176 S.W.3d 249, 255 (Tex.App.-- Houston [1st D ist.] 2004,4

pet. ref’d). Furthermore, the trial court is under no dut y to search until it finds an attorney acceptable to an indig ent defendant. Malcom v. State , 628 S.W.2d 790, 791 (Tex.Cri m.App. [Panel Op.] 1982). Ac cord Camacho v. S tate, 65 S.W.3d 107, 109 (Tex.App.–Amari llo 2000, no pet.)

. In thos e ci rcu msta nceswhe re t he ap poin tmen t of subs titute counsel may be an issue, an appellate cour t, whe n faced with a motion to wi thdraw, s hould abate the proceeding to the trial court for determination. Although an appropriate moti on to withdr aw has not been presented to this Cour t, we are l eft to specu late as to w hat action the Appellant

or counsel mi ght take. Without considering the meri ts of the Appellant’s pro se motion, and to avoid any conflict of inter

est and further ex penditure of judic ial resources, we consider i t prudent to res olve the i ssue of appointed couns el now ra ther than inv ite future litigat ion by a pos t-convic tion collateral attack. See Lerma v . State , 679 S.W.2d 488, 493 (Tex.Crim.App. 1982). Thus, we now abate the appeal and remand the caus e to the trial cour t for further proceedings. Upon remand the tri al court shal l utilize whatever means necessar y to de termin e whether Griffin should r

emain as Appellant ’s counsel; and, if not, whether Appellant is entitled to new

appointed counsel

. If the trial court determinesthat there is no reason to dischar ge Griffin a nd ap point substitu te counsel, the court shall enter an order to that effect. If the t rial court deter mi nes t hat new couns el should be appoi nted, the name, address, tele pho ne nu mbe r, an d sta te ba r num ber o f ne wly app ointed counsel s hall be5

included in the order appointing counsel. The tri al court shal l further cause its order to be included in a supplemental clerk’s record to be fil ed with the C lerk of this C ourt on or before March 19, 2007.
It is so or

dered. Per Curiam Do not publish

.