IN THE
TENTH COURT OF APPEALS
No. 10-13-00403-CR
LEMYEL ODELL PRICE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 36,923
ORDER
Lemyel Odell Price, Jr., was charged with burglary of a habitation, a second
degree felony offense. TEX. PENAL CODE ANN. § 30.02 (West 2011). The trial court
deferred an adjudication of guilt and placed Price on community supervision for a
period of eight years. After a hearing on the State’s second motion to adjudicate, the
trial court revoked Price’s community supervision, adjudicated his guilt, and sentenced
him to eight years in prison.
Price’s appellate attorney filed an Anders brief in this appeal. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel asserts in the
Anders brief that after a detailed search of the record, he has found no non-frivolous
issues to appeal. Counsel specifically discusses what the State was required to prove,
that being identity and a violation of community supervision, the four violations
alleged by the State, and his conclusion that the three witnesses called by the State
sufficiently proved those violations.
However, after reviewing the record, we discovered that the State’s first motion
to adjudicate included the multiple grounds reviewed by counsel. That motion resulted
in the trial court amending Price’s terms of community supervision to require him to
successfully complete a term of confinement and treatment in a Substance Abuse Felony
Punishment Facility. The State filed a second motion to adjudicate because Price was
unsuccessfully discharged from SAFPF. A hearing was held on that one violation. The
trial court revoked Price’s community supervision, adjudicated him guilty, and
sentenced him to eight years in prison. It is from that sequence of events that Price
appeals. Further, we note that when the trial court adjudicated Price guilty, it ordered
restitution, “old” attorney’s fees, and transport fees. Counsel failed to review any of
these fees to determine if any arguable issue on appeal arises from the imposition of the
fees. See generally McElwain v. State, No. 10-13-00291-CR, 2014 Tex. App. LEXIS 2661
(Tex. App.—Waco Mar. 6, 2014, order) (publish).
Price v. State Page 2
To comply with Anders, counsel's brief must evidence a professional evaluation
of the record demonstrating why, in effect, there are no arguable grounds to be
advanced. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim.
App. 1978). Because counsel does not review the State’s second motion to adjudicate or
the resulting hearing, and because counsel does not review or discuss the fees ordered
by the trial court, we conclude that counsel has not conducted the required professional
evaluation of the record.
Accordingly, we abate this proceeding to the trial court for the entry of an order
withdrawing the appointment of present counsel and the appointment of new counsel
in this appeal. See High, 573 S.W.2d at 813 (“The appeal is abated and the cause is
remanded in order that the trial court might provide appellant with the effective
assistance of counsel on appeal.”). A copy of the order appointing new counsel shall be
forwarded to the Clerk of this Court within ten days of the date of this abatement order.
Upon receipt of the appointment of new counsel, we will reinstate the appeal and new
counsel will then have thirty days to file a brief unless a motion for extension for good
cause is filed and granted by this Court pursuant to the Rules of Appellate Procedure.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed May 1, 2014
Price v. State Page 3