Brandon Dmichael Lively v. the State of Texas

• Court: Texas Court of Appeals, 3rd District (Austin)
• Decided: April 28, 2026
• Docket: 03-25-00589-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00589-CR

Brandon Dmichael Lively, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2023-473B, THE HONORABLE TRACIE WRIGHT-RENEAU, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellant Brandon Dmichael Lively is appealing from his conviction for

continuous sexual assault of a young child. See Tex. Penal Code § 21.02(b). Appellant’s brief

was originally due February 27, 2026. After this Court granted a motion requesting an extension

of time to file his brief, appellant’s brief is currently due May 12, 2026. Appellant’s appointed

counsel has now filed a second motion for extension of time to file a brief “and alternative

request for substitution of counsel.” In the motion, counsel “admits that his continued

representation is not in the best interests of Appellant and would respectfully request that this

case be remanded to the trial court for appointment of new counsel.”

The trial court has the responsibility for appointing counsel to represent indigent

defendants on appeal as well as the authority to relieve or replace appointed counsel upon a finding of good cause. See Tex. Code Crim. Proc. arts. 1.051(d), 26.04(j)(2). Accordingly,

when counsel is appointed by the trial court to represent an indigent defendant on appeal, it is the

trial court’s responsibility to relieve or replace counsel. See Alvarado v. State, 562 S.W.3d 450,

450–51 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Enriquez v. State, 999 S.W.2d 906, 907

(Tex. App.—Waco 1999, no pet.); Williamson v. State, No. 03-12-00672-CR, 2013 WL 363677,

at *1 (Tex. App.—Austin Jan. 25, 2013, no pet.) (mem. op., not designated for publication).

We therefore dismiss counsel’s motion, abate the appeal, and remand the cause to

the trial court. If the trial court determines that good cause exists for replacing counsel with

substitute counsel, the trial court shall remove counsel and promptly appoint substitute counsel

for the appeal of this cause. The trial court clerk is instructed to file with this Court no later than

May 22, 2026, a record of the hearing as well as a supplemental clerk’s record containing copies

of the court’s order appointing substitute counsel and the court’s order allowing counsel’s

removal. See Tex. R. App. P. 34.5(c)(2), 34.6(d) (authorizing supplementation of clerk’s and

reporter’s records). Upon our reinstatement of this appeal from abatement, our Clerk will notify

appellant of his new briefing deadline.

It is so ordered April 28, 2026.

Before Justices Triana, Kelly, and Ellis

Abated and Remanded

Filed: April 28, 2026

Do Not Publish