Opinion
06-23-00205-CR
03-22-2024
ANNETTE SOTELO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 186th District Court Bexar County, Texas Trial Court No. 2022CR2705
Before Stevens, C.J., van Cleef and Rambin, JJ.
ORDER
On June 22, 2023, the trial court entered an order denying Annette Sotelo's motion to suppress evidence. Sotelo then pled no contest, pursuant to a plea-bargain agreement, to a charge of possession of, with intent to deliver, a controlled substance, penalty group 1, in an amount of four grams or more but less than 200 grams. The trial court subsequently placed Sotelo on deferred adjudication community supervision and certified that Sotelo had the right to appeal the trial court's denial of her motion to suppress. Sotelo's appellate counsel filed a brief in which he concluded that the appeal is frivolous and without merit. Under the requirements of Anders v. California, counsel is required to conduct a "conscientious examination" of the record and file "a brief referring to anything in the record that might arguably support the appeal." Anders v. California, 386 U.S. 738, 744 (1967); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991).
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Supp.).
Under Anders, we are required to review the record and make an independent determination of whether "there are no arguable grounds for appeal." Stafford, 813 S.W.2d at 511. After conducting our own investigation of the record, we have identified an arguable issue that requires additional briefing: whether there was sufficient evidence supporting the trial court's denial of Sotelo's motion to suppress.
"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. 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 three days of the date of appointment. Newly appointed appellate counsel is to address the issue presented here, as well as any other issues that warrant further development on appeal.
The current submission date of March 15, 2024, is hereby withdrawn. Upon receipt of the supplemental clerk's record contemplated by this order, our jurisdiction over this appeal will resume, and we will establish a new briefing schedule.
IT IS SO ORDERED.