Opinion
No. 06-17-00082-CR
06-20-2017
On Appeal from the 16th District Court Denton County, Texas
Trial Court No. F15 2041-16 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
Grace Espinosa was appointed by the trial court in this matter to represent Arthur Robison in this appeal. Currently pending before this Court is a motion to substitute counsel filed by attorney Abe Factor. Factor represents in his motion that he has been retained to represent Robison and asks this Court to substitute Factor for Espinosa as appellate counsel of record in this matter. For the reasons set forth below, we have considered and granted Factor's motion.
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—Espinosa 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 Factor for Espinosa 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 Factor's motion to substitute counsel and are comfortable that Robison has received the protection that Rule 6.5 was meant to provide. Further, Robison 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 Espinosa file a motion to withdraw and (2) grant the motion to substitute Factor for Espinosa as attorney of record in this appeal. See TEX. R. APP. P. 2. Factor is now appellate counsel of record in this matter.
IT IS SO ORDERED.
BY THE COURT Date: June 20, 2017