Jesus De La Cruz Herrera v. State

Opinion

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

Nos. 06-18-00111-CR & 06-18-00112-CR

JESUS DE LA CRUZ HERRERA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court Nos. 27278 & 27560

Before Morriss, C.J., Moseley and Burgess, JJ. ORDER

Attorney Troy A. Hornsby was appointed to represent Appellant Jesus De La Cruz Herrera

in the appeal of these matters. Currently pending before this Court is a motion to substitute counsel

filed by attorney Paul Saputo and agreed to by Hornsby. Saputo represents in his motion that he

has been retained to represent Herrera on appeal and asks that he be substituted for Hornsby as

counsel of record in this matter. For the reasons set forth below, we have considered and hereby

grant Saputo’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 Saputo 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)

(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 Saputo’s motion to substitute counsel and are comfortable that

Herrera has received the protection that Rule 6.5 was meant to provide. Further, Herrera is free to

2 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 Saputo for Hornsby as

attorney of record in this appeal. See TEX. R. APP. P. 2, 6.5. Saputo is now appellate counsel of

record in this matter.

IT IS SO ORDRED.

BY THE COURT

Date: August 14, 2018