Order filed April 21, 2011
In The
Eleventh Court of Appeals
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No. 11-10-00216-CR
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MARTIN AREVALLO-GUERRERO, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR 36669
O R D E R
Upon his plea of not guilty to a four-count indictment, the jury convicted Martin Arevallo-Guerrero of three counts of indecency with a child. On Count I, the jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of twelve years and imposed a fine of $2,500. On Counts III and IV, the jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for terms of twenty years on both offenses and imposed a fine of $2,500 on both offenses.[1] The trial court ordered that the punishment assessed by the jury on Counts III and IV will not begin until appellant completes the punishment assessed on Count I. 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. A response has not been filed.[2] 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.).
In addressing an Anders brief, 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 reviewed the record, and we disagree with court-appointed counsel’s conclusion that an appeal would be frivolous. We note that the guilt/innocence phase of trial spanned three days. Approximately ten witnesses testified, including appellant, during the guilt/innocence phase. In the court’s perspective, an appeal arising from a contested trial on guilt/innocence is not readily amenable to disposition under Anders. At a minimum, a challenge to the sufficiency of the evidence would appear to present arguable grounds on appeal.
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 May 30, 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.
PER CURIAM
April 21, 2011
Do not publish. See Tex. R. App. P. 47.2(b).
Panel[3] consists of: Wright, C.J.,
McCall, J., and Hill, J.[4]
[1]The jury acquitted appellant on Count II of the indictment.
[2]By letter, this court granted appellant thirty days in which to exercise his right to file a response to counsel’s brief.
.
[3]Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a successor by the governor.
[4]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.