What did the court decide?

The appellate court dismissed the motion to substitute counsel and sent the case back to the trial court to decide whether counsel should be replaced and to appoint new counsel if needed.

What happens next in the appeal?

The trial court will hold a hearing and decide whether to appoint substitute counsel; it must file the hearing record and orders with the appellate court by May 22, 2026, after which the appeal will be reinstated and a new briefing deadline set.

Can this decision itself be appealed?

This order abating and remanding the appeal is procedural and directs the trial court to act; any further appellate review would proceed after the trial court’s actions and the appeal is reinstated.

Brandon Dmichael Lively v. the State of Texas

Docket 03-25-00589-CR

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

Criminal Appeal

Filed: Apr 28, 2026 · 3 days ago
Jurisdiction: Texas
Court: Texas Court of Appeals, 3rd District (Austin)
Type: Lead Opinion
Case type: Criminal Appeal
Docket: 03-25-00589-CR

Appeal from a conviction for continuous sexual assault of a young child, with appellant's counsel moving for substitution on appeal.

Summary

The court received a motion from appointed appellate counsel in Brandon Dmichael Lively’s appeal in which counsel stated continued representation was not in the appellant’s best interest and requested substitution. Because the trial court, not the appellate court, has authority to appoint or replace counsel for an indigent defendant on appeal, the court dismissed the motion, abated the appeal, and remanded the case to the trial court to determine whether good cause exists to replace counsel and to appoint substitute counsel if appropriate. The trial court must file records of its hearing and any appointment/removal orders by May 22, 2026.

Issues Decided

Whether the appellate court or the trial court has authority to relieve or replace appointed counsel for an indigent defendant on appeal.
Whether counsel's statement that continued representation is not in the client's best interest is sufficient for substitution of counsel without trial-court action.

Court's Reasoning

Texas law assigns the trial court the responsibility and authority to appoint, relieve, or replace counsel for indigent defendants on appeal. Because counsel was appointed by the trial court, the appropriate procedure is for the trial court to determine whether good cause exists to replace counsel and to appoint substitute counsel if warranted. Consequently, the appellate court abated the appeal and remanded for the trial court to act and to file the required records.

Authorities Cited

Tex. Code Crim. Proc. art. 1.051(d)
Tex. Code Crim. Proc. art. 26.04(j)(2)
Alvarado v. State562 S.W.3d 450 (Tex. App.—Houston [1st Dist.] 2014, no pet.)

Parties

Appellant: Brandon Dmichael Lively
Appellee: The State of Texas
Judge: Tracie Wright-Reneau

Key Dates

Opinion filed: 2026-04-28
Appellant's original brief due: 2026-02-27
Current brief due after extension: 2026-05-12
Deadline for trial court to file hearing record and orders: 2026-05-22

What You Should Do Next

1
For trial court
Hold a hearing to determine whether good cause exists to relieve appointed counsel and, if so, enter an order removing counsel and appointing substitute counsel for the appeal. File the hearing record and the appointment/removal orders with the appellate court by 2026-05-22.
2
For appellant (or appellant's representative)
Attend the trial-court hearing or consult appointed counsel about whether to request replacement; if desired, provide reasons supporting substitution so the trial court can consider them.
3
For appointed counsel
Prepare for the trial-court hearing and be ready to explain the reasons for seeking substitution; cooperate with the clerk to ensure required records and orders are timely filed with the appellate court.

Frequently Asked Questions

What did the court decide?: The appellate court dismissed the motion to substitute counsel and sent the case back to the trial court to decide whether counsel should be replaced and to appoint new counsel if needed.
Who decides whether my appellate lawyer can be replaced?: The trial court that appointed the lawyer has the authority to relieve or replace appointed counsel for an indigent defendant on appeal.
What happens next in the appeal?: The trial court will hold a hearing and decide whether to appoint substitute counsel; it must file the hearing record and orders with the appellate court by May 22, 2026, after which the appeal will be reinstated and a new briefing deadline set.
Can this decision itself be appealed?: This order abating and remanding the appeal is procedural and directs the trial court to act; any further appellate review would proceed after the trial court’s actions and the appeal is reinstated.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00589-CR

Brandon Dmichael Lively, Appellant

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2023-473B, THE HONORABLE TRACIE WRIGHT-RENEAU, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellant Brandon Dmichael Lively is appealing from his conviction for

continuous sexual assault of a young child. See Tex. Penal Code § 21.02(b). Appellant’s brief

was originally due February 27, 2026. After this Court granted a motion requesting an extension

of time to file his brief, appellant’s brief is currently due May 12, 2026. Appellant’s appointed

counsel has now filed a second motion for extension of time to file a brief “and alternative

request for substitution of counsel.” In the motion, counsel “admits that his continued

representation is not in the best interests of Appellant and would respectfully request that this

case be remanded to the trial court for appointment of new counsel.”

The trial court has the responsibility for appointing counsel to represent indigent

defendants on appeal as well as the authority to relieve or replace appointed counsel upon a
finding of good cause. See Tex. Code Crim. Proc. arts. 1.051(d), 26.04(j)(2). Accordingly,

when counsel is appointed by the trial court to represent an indigent defendant on appeal, it is the

trial court’s responsibility to relieve or replace counsel. See Alvarado v. State, 562 S.W.3d 450,

450–51 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Enriquez v. State, 999 S.W.2d 906, 907

(Tex. App.—Waco 1999, no pet.); Williamson v. State, No. 03-12-00672-CR, 2013 WL 363677,

at *1 (Tex. App.—Austin Jan. 25, 2013, no pet.) (mem. op., not designated for publication).

We therefore dismiss counsel’s motion, abate the appeal, and remand the cause to

the trial court. If the trial court determines that good cause exists for replacing counsel with

substitute counsel, the trial court shall remove counsel and promptly appoint substitute counsel

for the appeal of this cause. The trial court clerk is instructed to file with this Court no later than

May 22, 2026, a record of the hearing as well as a supplemental clerk’s record containing copies

of the court’s order appointing substitute counsel and the court’s order allowing counsel’s

removal. See Tex. R. App. P. 34.5(c)(2), 34.6(d) (authorizing supplementation of clerk’s and

reporter’s records). Upon our reinstatement of this appeal from abatement, our Clerk will notify

appellant of his new briefing deadline.

It is so ordered April 28, 2026.

Before Justices Triana, Kelly, and Ellis

Abated and Remanded

Filed: April 28, 2026

Do Not Publish