Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00292-CR
Armando SIMON,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CR-2132
Honorable Melisa Skinner, Judge Presiding
PER CURIAM
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: January 15, 2014
ABATED; MOTION TO WITHDRAW GRANTED
On October 19, 2011, Armando Simon was convicted of a violation of sex offender
registration–annual (life) and was placed on community supervision for a term of ten years. Simon
appealed his conviction and this court affirmed the trial court’s judgment in an opinion issued
October 17, 2012. See Simon v. State, No. 04-11-00783-CR, 2012 WL 4900916 (Tex. App.—San
Antonio Oct. 17, 2012, pet. ref’d) (mem. op., not designated for publication). The mandate was
issued on March 19, 2013, and the trial court clerk acknowledged receipt of the mandate on March
22, 2013. See TEX. R. APP. P. 18.1, 51.2(a).
04-13-00292-CR
On March 11, 2013, the trial court amended Condition No. 15 of Simon’s community
supervision to incorporate an addendum listing numerous sex offender conditions, including
requiring counseling. Specifically, Condition No. 15(B) required Simon to attend and participate
in an approved sex offender treatment program, with program participation defined as “attendance
at all meetings, prompt payment of fees, admission of responsibility for your offense, and progress
toward reasonable treatment goals.” On April 3, 2013, the State filed a motion to revoke Simon’s
community supervision alleging that he violated Condition No. 15(B) by failing to comply with
the instructions of Wodkins & Reed Counseling Services, LLC, his court-ordered sex offender
treatment program, to attend scheduled meetings on March 2, 2013 and March 28, 2013, and, as a
result, being suspended from the treatment program. At the revocation hearing, Simon pled “true”
to failing to attend the program meetings on March 2, 2013 and March 28, 2013. After the
conclusion of the hearing, the trial court found that Simon violated Condition No. 15(B) of his
community supervision on the grounds alleged in the State’s motion, revoked Simon’s community
supervision, and sentenced him to two years’ imprisonment. The court assessed $7,680 in court
costs, including $7,350 for appointed attorney fees. Simon appealed.
Simon’s court-appointed appellate attorney filed a motion to withdraw and a brief in which
he raises no arguable appellate issues and concludes this appeal is frivolous and without merit.
The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). See also High v.
State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Gainous v. State, 436 S.W.2d 137 (Tex. Crim.
App. 1969). As required, counsel provided Simon with a copy of the brief and motion to withdraw,
and informed him of his right to review the record and file his own pro se brief. See Nichols v.
State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); see also Bruns v. State, 924
S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Simon has filed a pro se brief in
which he raises issues he contends are arguable and non-frivolous.
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04-13-00292-CR
After reviewing the record, counsel’s brief, and Simon’s pro se brief, we conclude that
Simon has raised an arguable appellate issue requiring further briefing: that the conditions of his
community supervision did not take effect until after the mandate was issued and that he therefore
could not violate any conditions prior to issuance of the mandate. See Surety Corp. of America v.
State, 550 SW.2d 689, 690 (Tex. Crim. App. 1977); Delorme v. State, 488 S.W.2d 808, 810 (Tex.
Crim. App. 1973); see Humphries v. State, 261 S.W.3d 144, 145-46 (Tex. App.—San Antonio
2008, order). When an Anders brief has been filed and we determine there is an arguable ground
for appeal, we must remand the case to the trial court for appointment of new appellate counsel to
brief and present that issue along with any other grounds that might support the appeal. Bledsoe
v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); Stafford v. State, 813 S.W.2d 503, 511
(Tex. Crim. App. 1991).
Accordingly, we grant appellate counsel’s motion to withdraw, abate the appeal, and
remand the cause to the trial court. The trial court shall, within fifteen (15) days from the date of
our opinion and order, appoint new appellate counsel to present all arguable grounds of error,
including but not limited to the non-frivolous ground noted in this opinion. The trial court clerk
shall file a supplemental clerk’s record containing the trial court’s order appointing new appellate
counsel within thirty (30) days from the date of this opinion and order.
PER CURIAM
DO NOT PUBLISH
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