COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Angel Luis Martinez, Jr. v. The State of Texas
Appellate case number: 01-14-00108-CR
Trial court case number: 70443
Trial court: 264th District Court of Bell County
This case was previously set for submission on October 14, 2014, without
oral argument. A jury convicted appellant Angel Luis Martinez, Jr. of aggravated
sexual assault of a child and assessed punishment of 50 years in prison. His court-
appointed appellate attorney filed a brief that included a “professional evaluation
of the record” and raised one argument for consideration by the court of appeals.
The sole argument raised was that the redaction of the name of the jury foreman on
the verdict sheets was contrary to federal and state constitutional requirements that
courts be open.
The reporter’s record in this case indicates that the jury’s verdict was
tendered in writing in open court, and that it was unanimous. The names of the
jurors also appear in the reporter’s record. The appellant’s brief does not explain
how or why the redaction of the jury foreman’s name harmed Martinez, nor does
the brief assert that there was any error in the judgment itself or irregularity in the
jury proceedings that could be determined only by obtaining discovery from the
unnamed jury foreman. The appellant’s brief does not seek reversal of Martinez’s
conviction or any modification of the judgment. Indeed, the prayer for relief in the
brief actually requests affirmance of Martinez’s conviction and 50-year prison
sentence: “Appellant Angel Luis Martinez, Jr. prays that this Court modify the
verdict forms as requested herein, and then affirm the judgment; and for any and all
other relief to which Martinez may be entitled.” The brief did not raise arguable
grounds for review because it did not identify any error upon which reversal or
modification of the judgment potentially could have been based. See, e.g., Bledsoe
v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (holding that appellate
court determines whether appeal is wholly frivolous by reviewing the record to
determine if any reversible error is shown) (citing Anders v. California, 386 U.S.
738, 744, 87 S. Ct. 1396, 1400 (1967)).
If a conscientious examination of the record reveals no arguable grounds for
appeal, the appointed attorney should file a motion to withdraw, accompanied by
an Anders brief, which informs the appellate court that he “has made a thorough
review of the record and the applicable law, but has nonetheless concluded that
there is no plausible basis for appeal.” In re Schulman, 252 S.W.3d 403, 406-07
(Tex. Crim. App. 2008). Appointed counsel must also (1) notify his client of the
motion to withdraw and provide him a copy of both the motion and the Anders
brief, (2) inform the client of his right to review the appellate record and file a pro
se response, (3) inform the client of his right to seek discretionary review if the
court of appeals determines that his appeal is frivolous, and (4) “take concrete
measures to initiate and facilitate the process of actuating his client’s right to
review the appellate record, if that is what his client wishes.” Kelly v. State, 436
S.W.3d 313, 319–20 (Tex. Crim. App. 2014).
The brief in this case did not raise any arguable grounds for reversal on
appeal, and indeed it prayed for affirmance of the trial court’s judgment.
Appellant’s counsel did not move to withdraw, did not file an Anders brief, and
made no other record indicating whether Martinez was appropriately advised of
and assisted with his right to examine the appellate record and file a pro se
response. See id.
Accordingly, this case is removed from the October 14, 2014 submission
docket. Appellant’s counsel is ordered to file with this court either an amended
brief that raises an arguable ground for reversal or a motion to withdraw
accompanied by an Anders brief that complies with the minimum requirements as
established by the Court of Criminal Appeals in Kelly. See id.; see also TEX. R.
APP. P. 6.5 (“Withdrawal”). The amended brief or motion to withdraw and
accompanying Anders brief is due 14 days from the date of this order.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Justice Massengale, Acting Individually
Date: October 9, 2014