# Fourth Court of Appeals **San Antonio, Texas** CONCURRING OPINION N o. 04

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- CR Paul Anthony GARCIA , Appellant

v. The State of TEXAS , Appellee From the 451st Judicial District Court , Kendall County, Texas Trial Court No. 5398 Honorable Kirsten Cohoon , Judge Presiding Opinion by: Beth Watkins, Justice Concurring Opinion by: Liza A. Rodriguez , Justice Sitting: Beth Watkins , Justice Liza A. Rodriguez , Justice Lori I. Valenzuela , Justice Delivered and Filed: March 6, 2024 The major ity declines to decide if indigent d efendants who are represented by court

appointed counsel have the right to be represented by additional retained or pro bono co - counsel of their choosing , but that is precisely the issue presented in this case

. To provide clarity to the bench and the bar, I would decide that issue today. Three of our sister courts ha ve held that a right to additional retained or pro bono co

counsel does not exist for indigent defendants who have court

- appointed counsel, 1 but I would

1 Whitney v. State , 396 S.W.3d 696, 700

- 01 (Tex. App.

— Fort Worth 2013, pet. ref’d) (holding Sixth Amendment was not violated when trial court excluded non

- appointed counsel from activ ely participating as co

- counselConcurring Opinion 04

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- CR

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- hold that it does. As pointed out in the dissenting opinion in Trammel l v. State , the issue is not whether a defendant can demand court
- appointed counsel of his choosing , the issue is whether a defendant who has court
- appointed counsel has the right to be represented by additional retained or pro bono co - counsel of his choosing. See Trammell v. State , 287 S.W.3d 336, 34 4 (Tex. App.

— Fort Worth 2009, no pet.) ( D a uphinot, J., dissenting). In my view, a n indigent defendant is entitled to the same r ight to counsel as a non - indigent defendant , who can engage as many lawyers as he deems necessary to aid in his defense. See id

. Thus, I would hold that Garcia had a right to be represented by additional retained or pro bono co

- counsel of his choosing. Bu t our inquiry does not end there. Like a non

- indigent defendant ’s right to retained counsel of choice , an indigent defendant’s right to additional retained or pro bono co - counsel of his choice is a qualified right , and the trial court has wide latitude to balance that right against the needs of fairness and the demands of the trial court’s calendar. See United States v. Gonzalez

Lopez , 548 U.S. 140, 151

- 52 (2006). Accordingly, I join the majority’s remaining anal ysi s and its conclusion that

— on these particular facts

— the trial court did not abuse its discretion by failing to formally recognize Garcia’s additional retained or pro bono co

- counsel of his choosing

. With these comments , I respectfully concur. Liza A . Rodriguez, Justice DO NOT PUBLISH

alongside court

- appointed counsel); Trammell v. State , 287 S.W.3d 336, 343

- 44 (Tex. App.

— Fort Worth 20 0 9, no pet.) (holding trial court did not abuse its discretion when it excluded defendant’s pro bono co

- counsel from trial ); see also Mitchell v. State , No. 07

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- 00359

- CR, 2023 WL 4635054, at *2 (Tex. App.

— Amarillo July 19, 2023, pet. ref’d) (mem. op., not designated for publication); Martinez v. State , No. 05

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- 00817

- CR, 2018 WL 2434409, at *5 ( Tex. App.

— Dallas May 30, 2018, pet. ref’d) (mem. op., not designated for publication).