I have a DWI defendant found guilty by jury. The retained trial counsel wants to withdraw, stating her two reasons as 1--she's never done an appeal, and 2--the money paid to her only covered pre-trial hearings, and she took on the actual trial "pro-bono." This defendant paid an initial attorney $6,000, who didn't want to go to trial, so the attorney brought in the trial attorney, who the defendant paid another $2,000. The defendant testified at an indigency hearing that there was no written agreement about the trial attorney's length of representation. Defendant lost the indigency hearing, and now the trial attorney wants to withdraw. Shouldn't one of these attorneys have to handle the appeal--rather than this defendant not being able to proceed because she has spent all her money or the state paying for another attorney? The motion to withdraw was not filed within the time for notice of appeal, so does that mean the trial counsel is stuck?

Is there any case law that states an attorney cannot withdraw on appeal under similar circumstances? (I don't think there are actual grounds for appeal, but it also seems unfair for the defendant to have paid all that money and now she either gets no appeal or the state has to pay).

One's retained attorney can always limit her responsibility to particular tasks or stages of a dispute resolution under Tex.D.R.P.C. 1.02(b). I do not think the court can effectively impress any additional duties on the attorney, other than those imposed by Axel, 757 S.W.2d at 374. In your example, despite having incurred significant expenses for representation, the defendant remains non-indigent. Why do you say the public will bear the expense of the appeal?

Our system for establishing indigency is too lax. Rarely is there real, detailed information establishing indigency. Most judges just ask the defendant if he/she can afford to hire an attorney.

We rarely ask, "How much are you paying on your car note, for that brand new truck?"

If a person is indigent, whether out on bond or not, he should receive a court-appointed lawyer. But not if he just doesn't want to spend his/her own money on legal representation.

I think the public will bear the expense only if Mr. Bradley is right and the indigency question is not weighed heavily enough. She was ordered a court appointed attorney at the very beginning of the process, before she retained the first attorney.

Thanks for the input, the Axel case was my only ground for attempting to apply any after-trial responsibilities. At this point, I just don't want appellate timelines to get extended while the defendant tries to find another attorney. I don't see how a defendant could write an indigency brief without some help.

I once saw a judge find a defendant indigent for her appeal for the very reason that she had no money left after paying her trial attorney's fee. The judge then appointed that same attorney to represent the defendant on appeal. It just seemed wrong.

I have a defendant that paid mucho dinero for his trial counsel, received a probated sentence, still has a good job, and has filed a pauper's affidavit requesting the appointment of an attorney on appeal.

Does anyone have a sample motion opposing the finding of indegency? If so, please email to me at sheatly@co.wilbarger.tx.us.

I looked for the motions I used, but can't find them. I lost the indigency question on appeal...so you probably could find better ones!

From what I read at the time, though, if the defendant says they can't pay for their appeal, the appellate courts will bend over backwards to not let money bar their appeal. Good luck!

If you do have a hearing, make a very good record about exact expenses right now. This was tough in our case, too, because the defendant did not comply with a court order to bring documents and then couldn't remember any details of what we asked...again...appellate court wanted to make sure she got her appeal! Even if it was a waste of everyone's time...and her court appointed attorney's fees for the appeal were not added to her probation conditions that she had to follow after her appeal was denied.

If all else fails and you know the defendant is not indigent, raise a cross-point on appeal. About 15 years ago, I successfully challenged a trial court's bizarre finding that someone was indigent for appellate purposes. Alas, it was a pyhric victory. The perp had a lot full of used cars during trial but nothing by the time the appeal was decided. It was more of an attempt to get the judge to behave. The judge had health problems and, thankfully, left the bench soon afterwards.

I concur with the comments above about making a thorough record.
JAS

Initially the burden is on the appellant to show his indigence, and he has to file a proper affidavit detailing his financial ability. 130 S.W.3d at 873. But, here is the real problem: "Indigency determinations are made on a case-by-case basis, and any attempt by a court to set rigid standards will not be accepted." 89 S.W.3d at 746. It is really easy to become indigent if that is what you want to be.