At page 791 Guarantees of counsel for indigent defendants116 citing casesstating that once “the court has appointed an attorney to represent the indigent defendant, the defendant has been accorded the protections provided under the Sixth and Fourteenth Amendments
- Glaston Lee Mitchell, Jr. v. the State of Texas, No. 07-22-00359-CR (Tex. App.—Amarillo July 19, 2023).unpublished(Once the court has appointed an 4 attorney to represent the indigent defendant, the defendant has been accorded the protections provided under the Sixth and Fourteenth Amendment . . . .)
- Bluntson, Demond Depree v. The State of Texas, 728 S.W.3d 87 (Tex. Crim. App. 2025).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Courtney Washington v. the State of Texas, No. 13-24-00034-CR (Tex. App.—Corpus Christi–Edinburg Nov. 7, 2024).unpublished “has historically affirmed the trial judge’s decisions in refusing defendants’ motions to dismiss their court-appointed counsel”
- Antione Thomas v. the State of Texas, No. 12-22-00073-CR (Tex. App.—Tyler July 21, 2023).publishedReddic, 976 S.W.2d at 283 (citing Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. 1982)).
- Jason Cuellar v. the State of Texas, No. 13-21-00383-CR (Tex. App.—Corpus Christi–Edinburg Mar. 23, 2023).unpublishedReddic, 976 S.W.2d at 283 (citing Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Anibal Antonio Guevara v. State, No. 14-18-00724-CR (Tex. App.—Houston [14th Dist.] Feb. 6, 2020).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- in Re Michael Howell, No. 14-19-00611-CR (Tex. App.—Houston [14th Dist.] Aug. 13, 2019).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Gevan Keith Loring v. State, No. 05-18-00421-CR, 2019 WL 3282962 (Tex. App.—Dallas July 22, 2019).unpublishedANN. art. 26.04; Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Kerry Johnson v. State, No. 14-17-00819-CR (Tex. App.—Houston [14th Dist.] Nov. 13, 2018).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Aaron Craig Hinman v. State, No. 08-16-00226-CR (Tex. App.—El Paso July 27, 2018).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982)(citing Webb, 533 S.W.2d at 784 n.3).
Show 94 more citing cases
- Cody Lon Smith v. State, No. 04-16-00631-CR (Tex. App.—San Antonio July 18, 2017).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Cody Lon Smith v. State, No. 04-16-00630-CR (Tex. App.—San Antonio July 18, 2017).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Alfredo Bernal, Jr, No. 05-17-00081-CV (Tex. App.—Dallas Feb. 2, 2017).publishedApp. 1989) and Malcom v. State, 628 S.W.2d. 790, 791 (Tex. Crim.
- in the Interest of Baby v., No. 04-16-00754-CV (Tex. App.—San Antonio Jan. 6, 2017).publishedApp.1992); Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- in the Est. of Rafael Franco, Sr., No. 13-15-00376-CV (Tex. App.—Corpus Christi May 27, 2016).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Hughes, Candy Hill, No. WR-75,964-02 (Tex. Crim. App. Dec. 10, 2015).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Lawrence James Jr. v. State, No. 13-14-00380-CR (Tex. App.—Corpus Christi Oct. 15, 2015).unpublishedApp. 2000) (en banc); Malcolm v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Charles Lee v. State, No. 13-15-00301-CR (Tex. App.—Corpus Christi Oct. 14, 2015).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Lawrence James Jr. v. State, No. 13-14-00380-CR (Tex. App.—Corpus Christi Sept. 23, 2015).published PROC., 38.1(g).............................................................................7,8,9 UNITED STATE CASES Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) ......................................…
- Suarez, Jorge v. State, No. 05-12-00224-CR (Tex. App.—Dallas July 29, 2014).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Craig Welvon Sawyer v. State, No. 12-13-00288-CR (Tex. App.—Tyler June 30, 2014).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Perry Lee Ray Ford v. State, No. 10-13-00127-CR (Tex. App.—Waco June 26, 2014).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Brandon Islas v. State, No. 08-12-00157-CR (Tex. App.—El Paso May 14, 2014).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982).
- Julie Deane Harrell v. State, No. 08-13-00031-CR (Tex. App.—El Paso Mar. 26, 2014).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982).
- Ex Parte Markus Antonius Green, No. 13-13-00545-CR (Tex. App.—Corpus Christi Mar. 3, 2014).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- State v. Larry Green, No. 13-13-00479-CR (Tex. App.—Corpus Christi Jan. 31, 2014).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Nicholas Garcia v. State, No. 13-13-00013-CR (Tex. App.—Corpus Christi Jan. 3, 2014).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Joshua Dewight McClure v. State, No. 13-13-00252-CR (Tex. App.—Corpus Christi Oct. 4, 2013).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Lydell Grant v. State, No. 01-12-01173-CR (Tex. App.—Houston [1st Dist.] Sept. 12, 2013).publishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Arcade Joseph Comeaux Jr. v. State, No. 13-11-00440-CR (Tex. App.—Corpus Christi June 20, 2013).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Jorge Alberto Garivaldi v. State, No. 14-11-00831-CR (Tex. App.—Houston [14th Dist.] Aug. 23, 2012).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Eldred Lonnie Reid v. State, No. 01-10-00456-CR, 2011 WL 6306630 (Tex. App.—Houston [1st Dist.] Dec. 15, 2011).unpublished(panel op.)
- Butler v. State, 300 S.W.3d 474 (Tex. App.—Texarkana 2009).published(Tex.Crim.App. [Panel Op.] 1982)
- Gerald Dewayne Butler v. State, No. 06-08-00194-CR (Tex. App.—Texarkana Nov. 12, 2009).publishedStephenson v. State , 255 S.W.3d 652 , 655 n.4 (Tex. App.--Fort Worth 2008, pet. ref'd) (citing Malcom v. State , 628 S.W.2d 790, 791 (Tex. Crim.
- Quentin Paul Freeman, Sr. v. State, No. 03-05-00659-CR (Tex. App.—Austin Sept. 19, 2008).unpublishedWhile an indigent defendant does not have the right to the appointment of a particular attorney, Malcom v. State , 628 S.W.2d 790, 791 (Tex. Crim.
- Alvie Eugene Bingham v. State, No. 03-07-00066-CR (Tex. App.—Austin Sept. 19, 2008).unpublishedWhile an indigent defendant does not have the right to the appointment of a particular attorney, Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Robert Drew Stephenson v. State, No. 02-07-00036-CR (Tex. App.—Fort Worth Mar. 20, 2008).publishedApp. 1987). 3 … Garner v. State, 864 S.W.2d 92, 98 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). 2 A defendant must bring the matter to the trial court’s attention and must carry the burden of proving he is entitled to new counsel.4 We…
- Stephenson v. State, 255 S.W.3d 652 (Tex. App.—Fort Worth 2008).published(Tex.Crim.App. [Panel Op.] 1982)
- Robert Drew Stephenson v. State, No. 02-07-00035-CR (Tex. App.—Fort Worth Mar. 20, 2008).publishedApp. 1987). 3: Garner v. State , 864 S.W.2d 92, 98 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). 4: Malcolm v. State , 628 S.W.2d 790, 791 (Tex. Crim.
- Eugene Anderson v. State, No. 14-06-00348-CR (Tex. App.—Houston [14th Dist.] May 22, 2007).unpublishedMalcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Jeremiah Gene Sexton v. State, No. 02-06-00040-CR (Tex. App.—Fort Worth Feb. 8, 2007).unpublished Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim.
- Johanson L. Watson v. State, No. 07-06-00414-CR, 2007 Tex. App. LEXIS 811 (Tex. App.—Amarillo Feb. 2, 2007).unpublished(Tex.Crim.App. [Panel Op.] 1982)
- Cantu-Tzin v. Johnson, 162 F.3d 295 (5th Cir. 1998).published
- Camacho v. State, 65 S.W.3d 107 (Tex. App.—Amarillo 2000).published
- Long v. State, 137 S.W.3d 726 (Tex. App.—Waco 2004).published
- Carroll v. State, 176 S.W.3d 249 (Tex. App.—Houston [1st Dist.] 2005).published
- Trammell v. State, 287 S.W.3d 336 (Tex. App.—Fort Worth 2009).published
- Llamas v. State, 270 S.W.3d 274 (Tex. App.—Amarillo 2008).published
- Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990).published
- DeGroot v. State, 24 S.W.3d 456 (Tex. App.—Corpus Christi 2000).published
- Stotts v. Wisser, 894 S.W.2d 366 (Tex. Crim. App. 1995).published
- Springer v. State, 940 S.W.2d 322 (Tex. App.—Dallas 1997).published
- Watson v. State, 95 S.W.3d 342 (Tex. App.—Houston [1st Dist.] 2003).published
- McKinny v. State, 76 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2002).published
- Halliburton v. State, 928 S.W.2d 650 (Tex. App.—San Antonio 1996).published
- Garner v. State, 864 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1994).published
- Villegas v. State, 791 S.W.2d 226 (Tex. App.—Corpus Christi 1990).published
- Reddic v. State, 976 S.W.2d 281 (Tex. App.—Corpus Christi 1998).published
- Richard Piper v. State, No. 05-14-00693-CR (Tex. App.—Dallas July 2, 2015).unpublished
- Watson, Edward Stanley v. State, No. 01-01-00418-CR (Tex. App.—Houston [1st Dist.] July 25, 2002).published
- Palacios, Patrick Allen v. State, No. 01-02-00498-CR (Tex. App.—Houston [1st Dist.] June 12, 2003).unpublished
- Lester Erwin Carroll v. State, No. 01-03-00444-CR (Tex. App.—Houston [1st Dist.] July 1, 2004).published
- Nicholas Trammell v. State, No. 02-07-00372-CR (Tex. App.—Fort Worth May 7, 2009).published
- Eugene Ford Thompson v. State, No. 03-94-00427-CR (Tex. App.—Austin Dec. 21, 1994).unpublished
- Edward Keller v. State, No. 03-92-00414-CR (Tex. App.—Austin Aug. 31, 1994).unpublished
- Eugene Salazar v. State, No. 03-94-00070-CR (Tex. App.—Austin Jan. 25, 1995).unpublished
- Jaime Dominguez v. State, No. 03-95-00729-CR (Tex. App.—Austin June 5, 1997).published
- Guadalupe Padilla v. State, No. 03-02-00345-CR, 2003 Tex. App. LEXIS 5088 (Tex. App.—Austin June 19, 2003).unpublished
- Raymond Davis v. State, No. 03-03-00148-CR (Tex. App.—Austin May 27, 2004).unpublished
- Henry Paredes v. State, No. 03-05-00361-CR (Tex. App.—Austin Oct. 6, 2006).unpublished
- David Garcia v. State of Texas, No. 04-00-00678-CR (Tex. App.—San Antonio Oct. 17, 2001).unpublished
- in the Interest of K.M.K., a Minor Child, No. 04-02-00144-CV, 2002 WL 31760938 (Tex. App.—San Antonio Dec. 11, 2002).unpublished
- in Re Robert Martinez, No. 04-08-00400-CR (Tex. App.—San Antonio July 16, 2008).unpublished
- in the Matter of the Marriage of Donna Lynn Sosbee & Gene Sosbee, No. 06-03-00055-CV (Tex. App.—Texarkana Aug. 19, 2003).published
- Michael Sampson v. State, No. 06-06-00081-CR (Tex. App.—Texarkana Jan. 30, 2007).published
- Carlos M. Mata, Sr. v. State of Texas, No. 07-01-00066-CR (Tex. App.—Amarillo Aug. 24, 2001).unpublished
- David Matthew Layton v. State, No. 07-03-00384-CR (Tex. App.—Amarillo Sept. 30, 2003).published
- David Matthew Layton v. State, No. 07-03-00383-CR (Tex. App.—Amarillo Sept. 30, 2003).unpublished
- David Matthew Layton v. State, No. 07-03-00385-CR (Tex. App.—Amarillo Sept. 30, 2003).published
- Donald Wayne Dorch v. State, No. 07-04-00380-CR (Tex. App.—Amarillo Oct. 8, 2004).unpublished
- Earl Wayne Murphy v. State, No. 07-04-00356-CR (Tex. App.—Amarillo Mar. 14, 2005).unpublished
- Johanson L. Watson v. State, No. 07-06-00415-CR (Tex. App.—Amarillo Feb. 2, 2007).unpublished
- Johnny Llamas v. State, No. 07-07-00281-CR (Tex. App.—Amarillo Oct. 30, 2008).published
- Lori Sue Holcomb v. State, No. 07-06-00138-CR (Tex. App.—Amarillo Apr. 7, 2008).published
- in Re: Thomas L. Varkonyi, No. 08-05-00272-CR (Tex. App.—El Paso Aug. 31, 2005).published
- in Re Thomas Smith Mathes, III, No. 09-06-00391-CV (Tex. App.—Beaumont Sept. 28, 2006).published
- DeGroot, John Albert v. State, No. 13-99-00362-CR (Tex. App.—Corpus Christi June 8, 2000).published
- Moore, Herbert Willard v. State, No. 14-03-00725-CR (Tex. App.—Houston [14th Dist.] Sept. 23, 2004).unpublished
- Tyra Ann Whitney v. State, 396 S.W.3d 696 (Tex. App.—Fort Worth 2013).published
- Adam Ayala v. State, No. 04-13-00705-CR (Tex. App.—San Antonio Mar. 21, 2014).published
- Patrick Lamont Johnson v. State, No. 02-11-00489-CR (Tex. App.—Fort Worth Oct. 25, 2012).unpublished
- Cody Leroy Moore v. State, No. 02-10-00398-CR (Tex. App.—Fort Worth Aug. 25, 2011).unpublished
- Allen John Murray v. State, No. 04-16-00227-CR (Tex. App.—San Antonio June 3, 2016).published
- Suniga, Brian, No. AP-77,041 (Tex. Crim. App. Feb. 1, 2017).unpublished
- Chris Shane Spencer v. State, No. 02-17-00121-CR (Tex. App.—Fort Worth May 24, 2018).unpublished
- John Nathan Cavaness v. State, No. 04-17-00517-CR (Tex. Crim. App. Aug. 8, 2018).unpublished
- Suniga, Brian, No. AP-77,041 (Tex. Crim. App. Mar. 6, 2019).unpublished
- Brazil v. State, 665 S.W.2d 561 (Tex. App.—San Antonio 1984).published
- Sampson v. State, 854 S.W.2d 659 (Tex. App.—Dallas 1992).published
- Carmichael v. State, 505 S.W.3d 95 (Tex. App.—San Antonio 2016).published
- Dalton Bryce Massie-Weaver v. the State of Texas, No. 02-21-00041-CR (Tex. App.—Fort Worth Mar. 31, 2022).unpublished
- Paul Joaquin Ponce v. the State of Texas, No. 07-22-00024-CR (Tex. App.—Amarillo Dec. 20, 2022).unpublished
- Luis Caballero v. the State of Texas, No. 13-22-00183-CR (Tex. App.—Corpus Christi–Edinburg Feb. 8, 2024).unpublished
- Victoriano Cruz Alvarado v. the State of Texas, No. 13-22-00481-CR (Tex. App.—Corpus Christi–Edinburg Apr. 11, 2024).unpublished
At page 792 Examining record for counsel's negative impact on trial24 citing casesrelating that when a change of appointed counsel is requested but not given, courts should examine the record for whether the appointed counsel’s representation had a negative impact on the trial
- CHAVEZ, FACUNDO v. the State of Texas, No. AP-77,117 (Tex. Crim. App. Aug. 20, 2026).publishedThis Court would later suggest that these cases recognized a substantive component to the meaning of the word “proceeding.” In Adanandus v. State, this Court discussed both Riggall and Malcom.19 Ultimately, Adanandus held that an in- chamb…
- Courtney Washington v. the State of Texas, No. 13-24-00034-CR (Tex. App.—Corpus Christi–Edinburg Nov. 7, 2024).unpublished And the Texas Court of Criminal Appeals “has historically affirmed the trial judge’s decisions in refusing defendants’ motions to dismiss their court-appointed counsel.” Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim.
- Falk, John Ray Jr., No. AP-77,071 (Tex. Crim. App. May 19, 2021).unpublishedThe record shows that no motions came “to be heard.” See Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim. App. 1982) (citations omitted).
- Boyle v. State, 154 So. 3d 171 (Ala. Crim. App. 2013).publishedWe have found no case law mandating the trial court to sua sponte hold a hearing on this matter.” Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim.App.1982).
- Conrado Vela Iii v. State, No. 13-11-00238-CR (Tex. App.—Corpus Christi Feb. 2, 2012).unpublished (panel op.)
- Brenda Ashby Stone v. State, No. 06-08-00079-CR (Tex. App.—Texarkana July 8, 2008).unpublishedMalcom v. State , 628 S.W.2d 790, 792 (Tex. Crim.
- Shannon Darell Davis A/K/A Shannon D. Davis v. State, No. 02-06-00430-CR (Tex. App.—Fort Worth Feb. 28, 2008).publishedApp. 1991). 27: See Hutch , 922 S.W.2d at 171–72 (citations and internal quotation marks omitted). 28: Appellant does not contend that his attorney’s performance at trial was deficient. 29: Carroll v. State , 176 S.W.3d 249, 256 (Tex. App.…
- David W. Sessions v. State, No. 06-06-00180-CR (Tex. App.—Texarkana Mar. 20, 2007).unpublishedMalcom v. State , 628 S.W.2d 790, 792 (Tex. Crim.
- Jeremiah Gene Sexton v. State, No. 02-06-00040-CR (Tex. App.—Fort Worth Feb. 8, 2007).unpublished Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim.
- Raymond Davis v. State, No. 03-03-00148-CR (Tex. App.—Austin May 27, 2004).unpublished
Show 11 more citing cases
- Sanchez v. State, 122 S.W.3d 347 (Tex. App.—Texarkana 2003).published
- Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1996).published
- Cain v. State, 976 S.W.2d 228 (Tex. App.—San Antonio 1998).published
- Sonny Jerrico Reeves v. State, No. 02-05-00122-CR (Tex. App.—Fort Worth Dec. 22, 2005).unpublished
- Trenton Dewayne Pickett v. State, No. 02-08-00439-CR, 2009 WL 3246755 (Tex. App.—Fort Worth Oct. 8, 2009).unpublished
- Steve McNeal v. State of Texas, No. 07-01-00267-CR (Tex. App.—Amarillo Feb. 21, 2002).unpublished
- John David Brown v. State of Texas, No. 12-01-00117-CR (Tex. App.—Tyler June 18, 2002).published
- Benjamin Ramirez A/K/A Pedro Armendarez A/K/A Esequel Pena A/K/A Efren Lopez A/K/A Raul Perez v. State, No. 02-09-00136-CR (Tex. App.—Fort Worth May 13, 2010).unpublished
- Keith Wayne Frances v. State, No. 01-14-00715-CR (Tex. App.—Houston [1st Dist.] Feb. 13, 2015).published
- Chase v. State, 706 S.W.2d 717 (Tex. App.—Corpus Christi 1986).published
- D'Andria Balderrama v. the State of Texas, No. 04-21-00461-CR (Tex. App.—San Antonio May 24, 2023).unpublished
v.
the STATE of Texas, Appellee
Lead Opinion
OPINION
McCORMICK, Judge.This is an appeal from a conviction of burglary of a building; punishment was assessed at imprisonment for fifteen years. The sufficiency of the evidence is not challenged.
Appellant asserts three grounds of error dealing with the trial court’s denial of his pro se motion to dismiss his court-appointed counsel. On December 3, 1977, appellant was arrested and charged with burglary of a building. On December 6, 1977, appellant notified the court that he was indigent and requested the appointment of counsel. The court, complying with appellant’s request, appointed an attorney to represent appellant. Appellant was indicted on December 21, 1977. The docket sheet indicates appellant and his appointed counsel appeared in court on three separate occasions between December 9, 1977 and January 3, 1978. Jury trial in this case was set for February 14, 1978. On January 30, 1978, appellant filed a pro se motion for dismissal of court-appointed counsel, citing the attorney’s “unwillingness to explore the appellant’s contentions” and alleging that an “irrepairable (sic) animosity” had developed between appellant and counsel “thus preventing a workable relationship between attorney and client.” Finally, appellant alleged that forcing him to accept his court-appointed attorney would deny him adequate counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Appellant’s motion also asked that the court appoint another attorney to represent him.
On January 31, 1978, the trial court overruled appellant’s motion. There is no showing that appellant was afforded an opportunity to present evidence in support of his motion, nor does it appear that appellant was present in court when the motion was overruled.
In his first ground of error, appellant claims the trial court’s action denied him effective assistance of counsel and was a denial of adequate counsel as guaranteed under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Subsection 10 of the Texas Constitution and Article 1.04, V.A.C.C.P. This Court has repeatedly stated that a trial judge is under no duty to search until he finds an attorney agreeable to the defendant. Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App.1979); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976); Gonzales v. State, 532 S.W.2d 343 (Tex.Cr.App.1976); Viges v. State, 508 S.W.2d 76 (Tex.Cr.App.1974); Gleffe v. State, 501 S.W.2d 672 (Tex.Cr.App.1973); Williams v. State, 493 S.W.2d 863 (Tex.Cr.App.1973); Smith v. State, 493 S.W.2d 154 (Tex.Cr.App.1973); Rogers v. State, 488 S.W.2d 833 (Tex.Cr.App.1973); Martin v. State, 460 S.W.2d 919 (Tex.Cr.App.1970). Once the court has appointed an attorney to represent the indigent defendant, the defendant has been accorded the protections provided under the Sixth and Fourteenth Amendments and Article 26.04, V.A.C.C.P., regarding counsel. If a defendant is displeased with his appointed counsel, he must bring the matter to the court’s attention. Thereupon, the defendant carries the burden of proving that he is entitled to a change of counsel. Webb v. State, 533 S.W.2d 780, 784, footnote 3 (Tex.Cr.App.1976). This Court has historically affirmed the trial judge’s decisions in refusing defendants’ motions to dismiss their court-appointed counsel. Lyles v. State, supra; Webb v. State, supra; Gonzales v. State, supra; Rodriquez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975); Viges v. State, supra; Gleffe v. State, supra; Williams v. State, supra; Smith v. State, supra; Rogers v. State, supra; Stovall v. State, 480 S.W.2d 223 (Tex.Cr.App.1972); Martin v. State, supra.
The allegations in appellant’s motion stated that the court-appointed counsel was unwilling to explore the appellant’s contentions and that such an irreparable animosity had developed between appellant and court-appointed counsel so that a working rela[*792] tionship was prevented. We must examine the record and determine if this animosity and unwillingness to explore the appellant’s contentions had a negative impact on the representation afforded appellant. It appears that appellant’s court-appointed attorney provided adequate representation for appellant. The record shows a competent and vigorous defense. Appellant has shown us no harm in the court’s denial of his motion. See Lyles v. State, supra; Gonzales v. State, supra; Viges v. State, supra; Gleffe v. State, supra; Smith v. State, supra; Rogers v. State, supra. Appellant’s first ground of error is overruled.
Next, appellant maintains that the failure of the court to hold a hearing on his motion to dismiss counsel denied his procedural and substantive due process rights. We disagree. We have found no case law mandating the trial court to sua sponte hold a hearing on this matter. In addition, appellant never requested such a hearing. In Stovall v. State, 480 S.W.2d 223 (Tex.Cr.App.1972), Stovall contended the court erred in not conducting a hearing when he expressed dissatisfaction with his court-appointed counsel. This Court, in affirming the conviction, found there was no error since Stovall had never requested such a hearing. Appellant’s second ground of error is overruled.
Finally, appellant contends that the trial court violated Article 28.01, V.A.C. C.P., when the court overruled appellant’s motion for dismissal of counsel when neither appellant, nor his attorney, was present. Article 28.01, supra, (1977), reads in pertinent part as follows:
“Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding. The pretrial hearing shall be to determine any of the following matters:
“(1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary; ...”
In order to answer this ground of error, we must first determine what constitutes a “proceeding” under Article 28.01, V.A.C.C.P. At present, there is only one case which defines “proceeding” under Article 28.01. That case, cited by appellant in his brief, is Riggall v. State, 590 S.W.2d 460 (Tex.Cr.App.1979). In that case, Riggall filed a pro se motion to dismiss for failure to prosecute a theft charge. At some point before trial, the judge dismissed Riggall’s motion. Riggall argued on appeal that Article 28.01, supra, was violated when neither he nor his attorney were present at the hearing that resulted in the order overruling his motion. This Court, in determining that the trial court’s action constituted a “proceeding” under Article 28.01, supra, noted that the written order overruling Riggall’s motion to dismiss recited that the cause “came on to be heard.” In addition, the order also contained four paragraphs labeled as findings of fact and conclusions of law, indicating that some type of evidence or testimony was heard and considered. Since there was some type of “proceeding”, this Court held Riggall or his appointed counsel should have been present.
In the case at bar, we have nothing before us to indicate that there was any kind of “proceeding” as discussed in Riggall. There is no written order; there is just a notation on a docket sheet saying that the motion was overruled. Based on the record before us, we hold that the trial judge’s action in overruling appellant’s motion to substitute counsel was not a “proceeding” under Article 28.01, supra. Thus, Article 28.01, supra, was not violated. Appellant’s third ground of error is overruled.
The judgment is affirmed.
Dissent
dissenting.
I dissent to the majority’s opinion that Article 28.01, V.A.C.C.P., was not violated[*793] when the trial court overruled appellant’s motion to dismiss court-appointed counsel and appoint new counsel without a hearing and in the absence of appellant and his attorney.
By a strange reading of Art. 28.01, supra, the majority asserts that the trial court’s ruling did not constitute a “proceeding.” Black’s Law Dictionary defines proceeding as “the form and manner of conducting juridical business before a court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action from its commencement to the execution of judgment.” To deny that the trial court’s ruling on appellant’s motion was a proceeding, as the majority does, cannot remove the error from this case: it merely compounds the error. The majority has simply held that the trial court’s ruling was wholly without lawful authority since it was taken, according to the majority’s way of thinking, outside the realm of judicial “proceedings.” The majority’s attempt to avoid the abatement of an appeal required by Riggall v. State, 590 S.W.2d 460, for violation of Art. 28.01, supra, has, for its short-sightedness, simply moved the error from the frying pan into the fire.
As I view this case, the trial court’s adverse ruling on appellant’s motion violated the requirements of Art. 28.01, supra, and, as explained in Riggall v. State, supra, the appeal should be abated so that the statutory requirements may be satisfied. I dissent to the majority’s unconvincing attempt to avoid that just procedure.