TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00163-CR
NO. 03-03-00164-CR
v.
The State of Texas, Appellee
NOS. 992767, 992768 & 992781, HONORABLE JON N. WISSER, JUDGE PRESIDING
In local cause number 992767, a jury found appellant Francisco Mendoza guilty of aggravated sexual assault of a child and two counts of indecency with a child by contact. In cause number 992768, the jury found him guilty of aggravated sexual assault of a child and indecency with a child by contact. In number 992781, the jury found him guilty of indecency with a child by contact. Appellant's court-appointed attorney filed a brief concluding that the appeals are frivolous and without merit. Anders v. California, 386 U.S. 738 (1967); see also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).
Appellant exercised his right to examine the record and file a pro se brief. In one of his two pro se points of error, he contends that his conviction on both count one (aggravated sexual assault) and count two (indecency with a child by contact) in cause number 992767 constitutes unconstitutional double punishment for the same offense. See Ochoa v. State, 982 S.W.2d 904, 907-08 (Tex. Crim. App. 1998); see also Hutchins v. State, 992 S.W.2d 629, 633 (Tex. Crim. App. 1999, pet. ref'd, untimely filed). From our review of the record, we conclude that this is not a frivolous contention and that we are required to remand the cause for briefing by counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We express no opinion on the ultimate merits of this issue.
The appeal is abated and the cause is remanded to the district court. That court is ordered to promptly appoint substitute counsel to brief the double jeopardy issue identified above and any other ground that counsel believes might support the appeal. Id. The substitute brief shall be tendered for filing no later than July 30, 2004. The State will have thirty days to file a brief in response. The cause will be returned to the Court's active docket when the briefs are filed.
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Bob Pemberton, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Filed: June 24, 2004
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