Jesus De La Cruz Herrera v. State ( 2018 )

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
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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
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