Opinion
Appellate case number: 01-18-00358-CR
12-10-2019
Herman Alfredo Lopez v. The State of Texas
ORDER Trial court case number: 16-CR-2498 Trial court: 212th District Court of Galveston County
Appellant's opening brief, filed by appointed counsel on May 21, 2019, asserts as its sole point of error that evidence was "factually insufficient" to convict appellant of the charge of possession of a controlled substance. Texas courts, however, no longer conduct a factual sufficiency analysis in criminal cases. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Appointed counsel's brief cites Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) for applying a factual sufficiency standard of review, but both the citation to Clewis and the substance of the brief fail to acknowledge that Clewis was explicitly overruled by Brooks. 323 S.W.3d at 912. Accordingly, the opening brief does not comply with the Texas Rules of Appellate Procedure because it fails to include "appropriate citations to authorities." TEX. R. APP. P. 38.1(i).
We strike the brief and order counsel to re-file a brief that complies with the Texas Rules of Appellate Procedure in light of Brooks. See TEX. R. APP. P. 38.9(b) ("If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case."). Appellant's brief shall be due within 20 days of this order. At its discretion, the State may amend its September 9, 2019 brief no later than 20 days after appellant's brief is filed.
It is so ORDERED. Judge's signature: /s/ Sarah B. Landau
Acting individually Date: December 10, 2019