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
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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).
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