ADAM KELLY WARD v. THE STATE OF TEXAS (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,750

ADAM KELLY WARD, Appellant

v.

THE STATE OF TEXAS

ON AGREED MOTION TO DISQUALIFY PETER I. MORGAN, APPELLANT'S COUNSEL ON DIRECT APPEAL, FROM CAUSE NO. 23,182

IN THE 354TH JUDICIAL DISTRICT COURT

HUNT COUNTY

Per Curiam.

O R D E R

In June 2007, a jury found appellant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set appellant's punishment at death. Approximately two weeks after appellant was convicted and sentenced to death, the trial judge appointed Peter Morgan to represent appellant on his direct appeal. Morgan was not on the list of qualified attorneys the region keeps pursuant to Article 26.052(d)(3). Morgan filed a brief in this Court on appellant's behalf on August 8, 2008. Ward v. State, No. AP-75,750. At the time of the filing, Morgan was still not on the list of attorneys qualified to represent on direct appeal a defendant sentenced to death.

On September 12, 2008, appellant's habeas counsel filed in this Court a motion for leave to file a petition for writ of mandamus, a petition for writ of mandamus, and a motion to stay the direct appeal proceedings. The basis for these documents was appellant's claim that his direct appeal attorney was not on the list of qualified counsel, and his further claim that the trial court had a ministerial duty to appoint counsel from that list. On September 30, appellant's habeas counsel, appellant's (allegedly unqualified) direct appeal counsel Peter Morgan, and the State's counsel all filed an agreed motion to "disqualify" Morgan as relator's direct appeal counsel because he was not qualified to accept the appointment. It is this motion that is the subject of this order.

Article 26.052 provides that a local selection committee shall adopt standards for the qualification of attorneys to be appointed to represent indigent capital defendants at trial and on direct appeal. It also provides that the committee shall post those standards and a list of attorneys qualified for appointment in each district clerk's office in the region. Although the statute does not explicitly state that a trial judge should appoint appellate counsel from the list created by the committee, that action is clearly the intent of the statute.

In his response to appellant's motion for leave to file a petition for writ of mandamus, the trial judge stated that he believed that Morgan had sufficient courtroom experience in defending capital murder cases and that he had met the criteria required under Article 26.052. The judge also stated that Morgan had informed him that his application was pending before the selection committee. However, the parties' agreed motion to disqualify Morgan makes clear that Morgan was not and is not on the list of counsel qualified to represent death penalty defendants on appeal, nor had he applied to be on the list. Thus, it contradicts the trial judge's understanding that Morgan had an application pending with the committee.

After reviewing all of this information, we are of the opinion that the parties' joint motion should be granted. Accordingly, we strike the brief currently filed in the case and order the trial court to appoint within ten days of the date of this order an attorney who is on the list of qualified counsel to represent appellant on direct appeal and to notify this Court of that appointment. Newly appointed counsel shall thereafter have ninety (90) days from the date of appointment to file a direct appeal brief on appellant's behalf in this Court.

IT IS SO ORDERED THIS THE 19TH DAY OF NOVEMBER, 2008.

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