In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00155-CR
ROY DEAN BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 11F0886-102
Before Morriss, C.J., Moseley and Burgess, JJ.
ORDER
Carl H. Franklin was retained to represent Roy Dean Brown in his appeal from his
conviction of and sentence for continuous sexual abuse of a child and has filed a notice of appeal
on Brown’s behalf. Currently pending before this court is a motion to substitute counsel filed by
attorney Niles Illich. Illich represented in the motion that he had been retained to represent Brown
and asks this Court to substitute Illich for Franklin as counsel for Brown. For the reasons set forth
below, we have considered and granted Illich’s motion seeking to substitute as counsel of record
in this matter.
When an appellant who is represented on appeal by retained counsel later retains other
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—Franklin 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 Illich for Franklin as appellate counsel of record for
Brown fail to satisfy the procedural requirements established by Rule 6.5.
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, no pet.)
(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 Illich’s motion to substitute counsel and are comfortable that
Brown has received the protection that Rule 6.5 was meant to provide. Further, Brown is free to
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retain counsel of his choosing. We, therefore, in the interests of justice and judicial economy,
utilize Rule 2 of the Texas Rules of Appellate Procedure to suspend the requirement that Franklin
file a motion to withdraw and grant the motion to substitute Illich for Franklin as attorney of record
in this appeal. See TEX. R. APP. P. 2.
IT IS SO ORDERED.
BY THE COURT
Date: October 12, 2016
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