Jacob Dewayne Murray v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 7, 2023
• Docket: 06-23-00017-CR
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-23-00017-CR

JACOB DEWAYNE MURRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1755471R

Before Stevens, C.J., van Cleef and Rambin, JJ. ORDER

Attorney Mike Berger was appointed to represent Appellant Jacob Dewayne Murray in

the appeal of this matter. Currently pending before this Court is a motion to substitute counsel

filed by attorney Robert M. Burns. Burns states in his motion that he has been retained to

represent Murray on appeal and asks that he be substituted for Berger as counsel of record in this

matter. For the reasons set forth below, we have considered and hereby grant Burns’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—Berger 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 Burns for Berger 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

[ensure] 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 Burns’s motion to substitute counsel and are

comfortable that Murray has received the protection that Rule 6.5 was meant to provide. Further,

Murray 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

2 requirement that Berger file a motion to withdraw and (2) grant the motion to substitute Burns

for Berger as attorney of record in this appeal. See TEX. R. APP. P. 2, 6.5. Burns is now

appellate counsel of record in this matter.

IT IS SO ORDERED.

BY THE COURT

Date: February 7, 2023