Opinion
No. 06-17-00109-CR No. 06-17-00110-CR
06-20-2017
On Appeal from the 8th District Court Hopkins County, Texas
Trial Court Nos. 1725812 & 1725811 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
Attorney Roland Fergurson was appointed by the trial court to represent Chad Allen Cappiello in these appeals. Currently pending before this Court is a motion to substitute counsel filed by attorney Dan Wood, Jr. Wood represents in his motion that he has been retained to represent Cappiello and asks this Court to substitute Wood for Fergurson as appellate counsel of record in these matters. For the reasons set forth below, we have considered and granted Wood's motion.
In fact, Wood filed two motions—one in each of Cappiello's two companion appeals currently pending before this Court. For ease of reference, we will refer to the motions as a single motion. Our ruling, though expressed in the singular, is a ruling on both of Wood's motions.
When an appellant who is represented on appeal by counsel later retains different counsel, Rule 6.5(d) establishes the proper procedure for accomplishing the withdrawal and substitution. TEX. R. APP. P. 6.5(d). Under Rule 6.5, counsel of record—Fergurson in this case—is required to file a motion to withdraw before newly retained counsel may be substituted. See id. The actions taken for the purpose of substituting Wood for Fergurson as appellate counsel of record in this matter fail to satisfy the procedural requirements established by Rule 6.5.
However, as the Seventh Court of Appeals has aptly noted, "The purpose of Rule 6.5 is to insure that a party not be unwittingly left unrepresented before an appellate court." Medlock v. State, No. 07-15-00359-CR, 2015 WL 6939196, at *1 (Tex. App.—Amarillo Nov. 9, 2015, order) (per curiam) (discussing procedure established by Rule 6.5 of Texas Rules of Appellate Procedure for withdrawing and substituting counsel on appeal). Consequently, we have reviewed the circumstances as represented in Wood's motion to substitute counsel and are comfortable that Cappiello has received the protection that Rule 6.5 was meant to provide. Further, Cappiello is free to retain counsel of his choosing. We, therefore, in the interests of justice and judicial economy, (1) utilize Rule 2 of the Texas Rules of Appellate Procedure to suspend the requirement that Fergurson file a motion to withdraw and (2) grant the motion to substitute Wood for Fergurson as attorney of record in these appeals. See TEX. R. APP. P. 2. Wood is now appellate counsel of record in these matters.
IT IS SO ORDERED.
BY THE COURT Date: June 20, 2017