Opinion
06-22-00135-CR
08-31-2023
VICTOR HUGO TORRES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2229242
Before Stevens, C.J., van Cleef and Rambin, JJ.
ORDER
Victor Hugo Torres entered an open plea of guilty to the third-degree-felony offense of possession of a controlled substance (methamphetamine). After a punishment hearing in which Torres asked the court to defer adjudication, the trial court sentenced Torres to twenty-five years' incarceration. On appeal, Torres's attorney filed an appellate brief in which he concludes 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).
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (Supp.).
Torres also pled "true" to two prior felony convictions for enhancement purposes. See TEX. PENAL CODE ANN. § 12.42(D).
Our independent investigation of the record in this case, as required by the Texas Court of Criminal Appeals in Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), showed that there are at least two arguable issues that require additional briefing, including: (1) whether the trial court admonished Torres about the deportation consequences of his plea and, if not, whether that omission was harmful; and (2) whether the trial court erred in ordering Torres to pay restitution.
"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.
We hereby withdraw the current submission date of August 10, 2023. 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.
BY THE COURT