Opinion
No. 06-16-00068-CR
08-31-2016
JOHN JEROME HOLMES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 77th District Court Limestone County, Texas
Trial Court No. 13619-A Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
The trial court appointed Stan Schwieger to represent John Jerome Holmes in his appeal from his conviction of and sentence for aggravated robbery. Schwieger has previously filed two motions to extend the briefing deadline in this case, both of which were granted. On August 17, 2016, we received a third motion to extend the appellant's briefing deadline, but this motion was filed by Attorney Wilford A. Anderson. Anderson represented in the motion that he had been retained to represent Holmes on appeal and stated, "A copy of the Motion to Substitute Counsel has been attached to this Motion for Extension." A cursory review of the attached Motion to Substitute Counsel, followed by a telephone call to the district clerk's office, revealed that Anderson had actually filed the Motion to Substitute Counsel in the trial court and that he had merely provided this Court with a courtesy copy. For the reasons set forth below, we have considered and granted Anderson's motion seeking to substitute as counsel of record in this matter. We have also considered and granted Anderson's motion to extend the deadline for filing Holmes' brief.
When an appellant who is represented on appeal by an appointed attorney later retains counsel, Rule 6.5(d) of the Texas Rules of Appellate Procedure establishes the proper procedure for accomplishing the withdrawal and substitution. TEX. R. APP. P. 6.5(d). Under Rule 6.5, counsel of record—Schwieger in this case—is required to file a motion to withdraw before retained counsel may be substituted. Id. Without putting too fine a spin on the point, the actions taken for the purpose of substituting Anderson for Schwieger as appellate counsel of record for Holmes do not satisfy even one aspect of 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 (Tex. App.—Amarillo Nov. 9, 2015, order) (per curiam) (not designated for publication) (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 Anderson's Motion to Substitute Counsel and are comfortable that Holmes has received the protection that Rule 6.5 was meant to provide. Further, as Holmes is free to retain counsel of his choosing and because we are unwilling to prevent the substitution of counsel based solely on its timing, we, in the interests of justice and judicial economy, utilize Rule 2 of the Texas Rules of Appellate Procedure to suspend the requirement that Schwieger file a motion to withdraw and grant the motion to substitute Anderson for Schwieger as attorney of record in this appeal. See TEX. R. APP. P. 2. We further grant Holmes' motion seeking a third extension of the deadline for filing his brief. Holmes' appellant brief is now due to be filed with this Court on or before September 14, 2016. Finally, we admonish Holmes and his retained counsel that, in light of the extensions already granted to Holmes in this matter, we will not grant additional extensions absent truly extraordinary circumstances.
IT IS SO ORDRED.
BY THE COURT Date: August 31, 2016