Brian Keith Edwards v. State

Order filed November 3, 2011

 

                                                                       In The

                                                                             

  Eleventh Court of Appeals

                                                                   __________

 

                                                         No. 11-11-00135-CR

                                                    __________

 

                              BRIAN KEITH EDWARDS, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

 

                                    On Appeal from the 29th District Court

                                                         Palo Pinto County, Texas

                                                      Trial Court Cause No. 14427

 

 

                                                                     O R D E R

            The jury convicted Brian Keith Edwards of felony driving while intoxicated.  Upon appellant’s plea of true to a prior felony conviction alleged for enhancement purposes, the jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of twenty years and imposed a fine of $10,000.

We abate the appeal and remand to the trial court for appointment of new appellate counsel. 

Appellant’s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel asserts that he has professionally and conscientiously examined the record and applicable law and that he has concluded that the appeal is frivolous.  Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel’s brief.  It appears that court-appointed counsel has attempted to comply with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.).

Appellant has filed a pro se response to counsel’s motion to withdraw and supporting brief.  In addressing an Anders brief and pro se response, a court of appeals may only determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.  Schulman, 252 S.W.3d 403; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

Following the procedures outlined in Anders and Schulman, we have independently re-viewed the record, and we disagree with court-appointed counsel’s conclusion that an appeal would be frivolous.  We note that the trial occurred over the course of three days.  In the court’s perspective, an appeal arising from a contested trial on guilt/innocence is not readily amenable to disposition under Anders.  In this regard, numerous evidentiary objections were decided adversely to appellant.  Additionally, a question arose during trial pertaining to an error in the indictment as it related to the date alleged for one of the prior convictions for driving while intoxicated.

            Accordingly, we grant counsel’s motion to withdraw, abate this proceeding, and remand the case to the trial court for appointment of new appellate counsel.  See Bledsoe, 178 S.W.3d at 826–27.  We direct the trial court to appoint new counsel to represent appellant on appeal.  The trial court shall furnish the name, address, telephone number, and state bar number of new counsel by its order appointing new counsel.  The order shall be included in a supplemental clerk’s record, which shall be filed with the clerk of this court by December 5, 2011.  Appellant’s brief shall be due thirty days from the date of the trial court’s appointment of new counsel.  All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.

The motion to withdraw is granted, and the appeal is abated and remanded to the trial court in accordance with this order.

 

November 3, 2011                                                                  PER CURIAM

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Kalenak, J.