Opinion
No. 11-18-00257-CR
08-01-2019
ERNESTINA FLORES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court Taylor County, Texas
Trial Court Cause No. 27515A
ORDER
In a three-count indictment, Appellant, Ernestina Flores, was charged with possession of methamphetamine, possession of methamphetamine with intent to deliver, and unlawful possession of a firearm. The jury acquitted Appellant of unlawful possession of a firearm, but convicted her of possession of methamphetamine with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2017). After Appellant pleaded true to an enhancement paragraph, the jury assessed her punishment at imprisonment for forty-five years and a fine of $1,000.
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 thoroughly examined the record and applicable law and that he has concluded that the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967).
Following the procedures set out in Anders; Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008), we conducted an independent review of the record. In doing so, we noted that the jury charge from the punishment phase was not included in the clerk's record at the time counsel filed the Anders brief. The district clerk has filed the punishment-phase charge in a supplemental clerk's record. We note that, although a video of an extraneous offense by Appellant, and testimony regarding that extraneous offense, were admitted during the punishment phase of the trial, the punishment-phase charge does not contain an extraneous offense instruction as required by Article 37.07, section 3(a) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp. 2018); see also Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007); Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).
The clerk of the trial court advised our clerk's office that the punishment-phase charge was not electronically scanned. Therefore, it was accidentally omitted from the clerk's record.
Counsel did not have the opportunity to review the punishment-phase charge at the time he filed the Anders brief. Accordingly, we order counsel to review the punishment-phase charge and file, within thirty days of the date of this order, either a supplemental Anders brief or a brief withdrawing the original Anders brief and raising any substantive issues on appeal that counsel deems arguable.
PER CURIAM August 1, 2019 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.