Opinion
06-22-00165-CR
07-20-2023
CHARLES GARTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18F0532-102
Before Stevens, C.J., van Cleef and Rambin, JJ.
ORDER
Following a jury trial, Charles Garton was convicted of two counts of aggravated sexual assault of a child and was sentenced to eighty years' imprisonment on each count, with the sentences to run consecutively. Garton appeals.
Garton's appellate counsel has filed a brief in which he concludes, after a review of the record and the related law, that the appeal is frivolous and without merit. The brief presents arguable points of error, but after a discussion of the applicable law and facts, counsel has concluded that those points do not present reversible error. See Anders v. California. Anders v. California, 386 U.S. 738, 743-44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991).
As required by the Texas Court of Criminal Appeals in Stafford, 813 S.W.2d at 511, we have conducted our own investigation of the record to discover if there are arguable grounds for appeal. We have identified arguable issues that require additional briefing, including:
(1) Whether trial counsel was ineffective
• In failing to object to the State's comment on Garton's right to remain silent during voir dire.
• In failing to object to the State's comment about sentencing during voir dire.
• In failing to seek another pseudonym for the child victim, who was given the pseudonym of "Child Victim # 3."
• In failing to object to the following comment by the State during its opening statement: "So, what was going on in this ring was those individuals were giving children drugs in exchange for sex. Each of those individuals was
charged separately. Kenneth Nelson had his trial. John Littleton is now deceased. And the third person involved in this is on trial this week and that is this individual right here."
• By questioning Officer Vera during the guilt/innocence phase about Garton's community supervision and eliciting testimony that Garton might have tested positive.
• In failing to object to the testimony of Briscoe Davis relating to the investigation of John Littleton and others for human trafficking violations.
• In failing to object to the State's reference to Nelson as "their other co-defendant" during closing arguments.
• In failing to object, during the State's closing argument, to the attorney for the State directing comments directly to Garton.
• In failing to object, during the punishment trial, to the State's questioning of Davis as follows: "[T]he . . . final person involved in this ring sits in this courtroom today now convicted and this jury is about to assess their punishment; is that your understanding?"
• In failing to object, during the State's questioning of Garton's sister, Stephanie Milota: "Did you and your brother also have an inappropriate relationship?" "So, if your brother told the Department of Public Safety that you did that would be a lie?"
• In failing to object to the following portions of the State's punishment phase closing argument: "Those girls, and especially [Child Victim #3], are the citizens of your community, of Bowie County. And some of you are from New Boston where they live and where they were victimized. So, go back there and give them the justice that they deserve."
• In failing to object to the prosecuting attorney's comment during her punishment phase closing argument about what she would have done-live in her car or a ditch-but not in that environment and that she would have called the police; and
(2) Whether the trial court erred in failing to grant Garton's motion for a new trial.
"When 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, order). In such a situation, we "must then guarantee appellant's right to counsel by ensuring that another attorney is appointed to represent appellant on appeal." Stafford, 813 S.W.2d at 511 (citing Anders, 386 U.S. at 744). Accordingly, we grant current counsel's motion to withdraw, and we abate this case to the trial court for the appointment of new appellate counsel. The appointment is to be made within ten days of the date of this order. Newly appointed appellate counsel is to address the issues presented here, as well as any other issues that warrant further development on appeal.
A memorialization of the trial court's appointment shall be entered into the record of this case and presented to this Court in the form of a supplemental clerk's record within ten days of the date of appointment. The current submission date of July 3, 2023, is hereby withdrawn. We will establish a new briefing schedule upon our receipt of the supplemental clerk's record.
IT IS SO ORDERED.