IN THE

TENTH COURT OF APPEALS

No. 10-04-00059-CR

Vaughn Birdwell,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 95-324-C

          This is an appeal from the convicting court’s denial of Vaughn Birdwell’s motion for DNA testing.  He argues that the trial court erred by failing to appoint counsel before denying his motion.

          Birdwell was convicted of murder and sentenced to life imprisonment.  He filed a pro se motion for post-conviction DNA testing under article 64.01 of the Code of Criminal Procedure.  See Act of Apr. 3, 2001, 77^th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2-3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-05)).[1]  That motion was denied.  Birdwell filed a pro se brief arguing that he was not appointed counsel in the trial court nor appointed counsel on appeal.  We abated the appeal for appointment of counsel on appeal.  Birdwell v. State, No. 10-04-00104-CR (Tex. App.—Waco February 9, 2005, order).

          Birdwell argues that the court erred by failing to appoint counsel, as required by statute, before denying his motion.  However, as we recognized in our abatement order, that argument is not supported by the record.  On July 6, 2001, the trial court appointed an attorney to represent Birdwell on his DNA motion.  The trial court denied that motion on February 19, 2004.  Birdwell’s appointed counsel filed a motion to withdraw as attorney of record on December 30, 2003, and the trial court granted that motion on April 15, 2004.

          Birdwell argues that the trial court should have appointed substitute counsel once it received appointed counsel’s motion to withdraw.  The trial court did not rule on the motion to withdraw until after it denied Birdwell’s DNA motion.  Birdwell asks us to hold that the trial court erred in failing to grant the withdrawal motion and appoint substitute counsel before ruling on the DNA motion.  However, the trial court has discretion to determine whether counsel should be allowed to withdraw from a case.  King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000).  In the absence of a showing of abuse of discretion, there is no error.  Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988).  The record reflects that at the time counsel filed his motion to withdraw, he had been Birdwell’s appointed counsel for approximately two and a half years.  The record does not reveal what actions, if any, appointed counsel took during that period of time.  Birdwell’s motion for DNA testing was pending for the entire period.  Under these circumstances, we find no abuse of discretion by the trial court in not granting the motion to withdraw until it had ruled upon Birdwell’s motion for DNA testing.

CONCLUSION

          We overrule Birdwell’s issue and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed June 22, 2005

Do not publish

[CRPM]