Humberto Ortiz Balderas v. the State of Texas

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-22-00024-CR

HUMBERTO ORTIZ BALDERAS, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Lamar County, Texas

Trial Court No. 28545

Before Morriss, C.J., Stevens and Carter,* JJ.

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*Jack Carter, Justice, Retired, Sitting by Assignment

ORDER

Attorney Troy Hornsby was appointed to represent Appellant Humberto Ortiz Balderas in the appeal of this matter. Currently pending before this Court is a motion to substitute counsel filed by attorney Gena B. Bunn and agreed to by Hornsby. Bunn represents in her motion that she has been retained to represent Balderas on appeal and asks that she be substituted for Hornsby as counsel of record in this matter. For the reasons set forth below, we have considered and hereby grant Bunn’s motion.

When an appellant who is represented on appeal by counsel later retains different 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—Hornsby in this case—is required to file a motion to withdraw before newly retained counsel may be substituted. Id. The actions taken for the purpose of substituting Bunn for Hornsby as appellate counsel of record in this matter fail to satisfy the procedural requirements established by Rule 6.5. See id.

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) (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 Bunn’s motion to substitute counsel and are comfortable that Balderas has received the protection that Rule 6.5 was meant to provide. Further, Balderas is

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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 Hornsby file a motion to withdraw and (2) grant the motion to substitute Bunn for Hornsby as attorney of record in this appeal. See TEX. R. APP. P. 2, 6.5. Bunn is now appellate counsel of record in this matter.

IT IS SO ORDRED.

BY THE COURT

Date: March 29, 2022