Donald Wayne Lewis v. State

• Court: Court of Appeals of Texas
• Decided: March 13, 2015
• Docket: 07-15-00061-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-15-00061-CR ________________________

DONALD WAYNE LEWIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Randall County, Texas Trial Court No. 24655-A; Honorable Dan L. Schaap, Presiding

March 13, 2015

ORDER ON MOTION TO SUBSTITUTE Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

On February 13, 2015, Adam Tisdell, court-appointed counsel for Appellant,

Donald Wayne Lewis, filed a notice of appeal from Appellant’s conviction for burglary of

a habitation, enhanced. Pending before this Court is a Motion to Substitute Counsel for

Appeal filed March 10, 2015. By the motion, Tina Davis Rincones represents she has

been retained by Appellant and requests permission for Tisdell to withdraw. The

motion, however, is not signed by either Appellant or Tisdell. On March 11, 2015, Rincones filed a similar Motion to Substitute Counsel for Appeal in the trial court, which

was granted. We likewise grant the motion pending in this Court with these comments.

An attorney whose signature appears on a notice of appeal is considered to be

lead counsel before this Court, unless otherwise provided. See TEX. R. APP. P. 6.1(a).

Therefore, as to this Court, Tisdell became Appellant’s lead counsel when he filed the

notice of appeal. An attorney wishing to withdraw from representation of a party is

required to file a motion to withdraw. See TEX. R. APP. P. 6.5. The purpose of Rule 6.5

is to insure that a party not be unwittingly left unrepresented before an appellate court.

When new counsel is being substituted, Rule 6.5(d) governs the procedure for

withdrawal of the previous counsel. The Rule contemplates that the attorney of record

file a motion in this Court seeking to withdraw before substitution of new counsel may

be permitted. The Rule provides that, if a new attorney is substituting for the

withdrawing attorney, the motion to withdraw must state “the substitute attorney’s name,

mailing address, telephone number, fax number, if any, and State of Texas identification

number. The withdrawing attorney must then accomplish notice to Appellant in the

manner described by Rule 6.5(b).

By the motion filed in this Court, Rincones seeks to be substituted for Tisdell as

Appellant’s attorney of record; however, there is no indication in the motion that Tisdell

approves or agrees with the substitution or moves to withdraw. Accordingly, the motion

to substitute is deficient. However, because the trial court has now granted an order

allowing Tisdell to withdraw and has substituted Rincones as Appellant’s attorney of

record in the trial court, we apply Rule 2 of the Texas Rules of Appellate Procedure to

2 suspend the requirement that Tisdell move to withdraw and we grant Appellant’s motion

to substitute Rincones for Tisdell as the attorney of record in this appeal.1

It is so ordered.

Per Curiam

Do not publish.

1 See Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006) (expressly overruling Sowels

v. State, 45 S.W.3d 690 (Tex. App.—Waco 2011, no pet.)), in so far as it held that a motion to withdraw filed by appellate counsel should be filed in the trial court).