COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Gerardo Arredondo v. The State of Texas
Appellate case number: 01-16-00312-CR
Trial court case number: 1403754
Trial court: 339th District Court of Harris County
Appellant, Gerardo Arredondo, was charged with capital murder. Arredondo
entered a plea of “not guilty.” A jury found Arredondo guilty as charged in the
indictment. See TEX. PENAL CODE ANN. § 19.03 (West 2011). The trial court
assessed punishment at life imprisonment without possibility of parole. See TEX.
PENAL CODE ANN. § 12.31 (West 2013). Appellant timely filed a notice of appeal.
Appellant’s court-appointed counsel on appeal has filed a motion to withdraw
from representing appellant and an Anders brief in which he represented that no valid
grounds for appeal exist and that appellant’s appeal is frivolous. See Anders v.
California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se
response. The State has waived its opportunity to file an appellee’s brief to reply to
the brief counsel filed on appellant’s behalf.
When this Court receives an Anders brief from an appellant’s court-appointed
attorney asserting that no arguable grounds for appeal exist, we must independently
determine whether any arguable grounds for appeal exist by conducting our own
review of the entire record. Id., 87 S. Ct. at 1400 (emphasizing that reviewing
court—and not counsel—determines, after full examination of proceedings, whether
case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991) (quoting same passage from Anders). An arguable ground for appeal is a
ground that is not frivolous; it must be an argument that could “conceivably persuade
the court.” See In re Schulman, 252 S.W.3d 403, 407 n.12 (Tex. Crim. App. 2008)
(quoting McCoy v. Court of Appeals of Wisc., Dist. I, 486 U.S. 429, 436, 108 S. Ct.
1895, 1901 (1988)). However, “[w]hen we identify issues that counsel on appeal
should have addressed but did not, we need not be able to say with certainty that
those issues have merit; we need only say that the issues warrant further development
by counsel on appeal.” Wilson v. State, 40 S.W.3d 192, 200 (Tex. App.—Texarkana
2001, no pet.) (citing Wilson v. State, 976 S.W.2d 254, 257 n.4 (Tex. App.—Waco
1998, no pet.)).
Our role in this Anders appeal is limited to determining whether arguable
grounds for appeal exist. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim.
App. 2005). If we determine that arguable grounds for appeal exist, we must abate
the appeal and remand the case. Id. We do not rule on the ultimate merits of any
arguable issues. Id. On remand, the trial court must appoint new counsel to represent
appellant, because appellant is entitled to have new counsel address the merits of the
issues. Id. “Only after the issues have been briefed by new counsel may [we] address
the merits of the issues raised.” Id.
In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and
Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record and appointed
counsel’s Anders brief, and we conclude that this appeal warrants further
development by counsel. Accordingly, we (1) grant counsel’s motion to withdraw,
and (2) abate this appeal and remand the cause to the trial court to appoint new
appellate counsel to present any grounds that might support the appeal.
In addition to any other grounds for appeal, the court directs counsel to
consider the issue of whether the lesser included offense of murder should have
been submitted in the charge of the court and whether such an error, if any,
caused harm. We further order that a supplemental clerk’s record be filed with this
Court containing the name, address, and state bar number of the new counsel
appointed.
It is so ORDERED.
Judge’s signature: /s/ Jane Bland
Acting individually Acting for the Court
Before Justices Higley, Bland, and Brown.
Date: July 18, 2017