THOMAS COLEMAN v. THE STATE OF TEXAS (concurring)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0072-07

THOMAS COLEMAN, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

SWISHER COUNTY

Keller, P.J.,filed a concurring opinion in which Keasler and Hervey, jj., joined.

I agree that the trial court did not err when it refused to modify the order appointing the attorneys pro tem. I do not join the Court's conclusion that that decision was "within the trial court's sound discretion." (1) Saying the trial court has "discretion" suggests that the trial court may have the power in this type of situation to act contrary to the wishes of the district attorney - a proposition that is at least questionable. (2) In this case, we need not resolve whether the trial court could ever act contrary to the wishes of the district attorney regarding whether to withdraw an attorney pro tem's appointment. The outgoing district attorney had recused himself, and the incoming district attorney has not attempted to rescind that recusal. With these comments, I concur in the Court's judgment.

Filed: February 6, 2007

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1. See Court's op. at 12.

2. See State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4-7 (Tex. Crim. App. 1990) (plurality op)(recusal of district attorney is a matter solely within the discretion of the district attorney).