No. 05-04-00273-CR
Opinion filed November 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-35131-SM. Abated and Remanded.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice LANG-MIERS.
Curtis Dewayne Black was convicted of aggravated robbery. Black pleaded true to the two enhancement paragraphs and the jury assessed his punishment at imprisonment for life. Black's appellate counsel filed a motion to withdraw as counsel and a brief in which he concludes the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). Black filed a pro se response claiming his conviction for aggravated robbery violated the Double Jeopardy provisions of the United States and Texas Constitutions. After reviewing the record, Black has raised an arguable issue in his pro se response.
The record shows that Black is also known as "Larry Brown" and "T."
Factual and Procedural Background
The record reflects that Black and a companion stopped the complainant as he was walking from a friend's apartment to his car in Irving, Texas. At gunpoint, Black forced the complainant to give Black his bank card and drive Black to a convenience store with an automatic teller machine (ATM) in Dallas, Texas. Black's companion followed them in a white car. When Black went into the convenience store to withdraw some money from the ATM, the complainant fled. A few days later, Black was arrested in Houston, Texas driving the complainant's car. In Harris County, Black was tried and convicted of the offenses of felon in possession of a firearm and the unauthorized use of a motor vehicle, and sentenced to twelve years of imprisonment. Black was later indicted in Dallas County for aggravated kidnapping as well as aggravated robbery. The jury found Black guilty of both offenses. Black pleaded true to the two enhancement paragraphs. In each case, the jury assessed punishment at life imprisonment. Arguable Issue for Appeal
The indictment for aggravated robbery alleged the assaultive conduct occurred while Black was in the course of committing the theft of a motor vehicle. Black's trial counsel filed a special plea of double jeopardy arguing the trial for the offense of aggravated robbery was barred by the double jeopardy provisions of the United States and Texas Constitutions, and the Texas Code of Criminal Procedure. Specifically, Black's trial counsel argued: (1) the alleged aggravated robbery and Black's conviction for the unauthorized use of a motor vehicle arose out of the same criminal episode; (2) both offenses involved the theft of the same 1996 Infiniti; (3) in both offenses the stolen vehicle was owned by the same man; and (4) Black was tried and convicted of the unauthorized use of a motor vehicle and sentenced to twelve years of imprisonment in Harris County. During the hearing on Black's special plea of double jeopardy, the State argued that there was no case law stating the unauthorized use of a motor vehicle could be a lesser included offense of aggravated robbery. The trial court denied Black's plea of double jeopardy. During the trial, the Houston arresting officer testified for the State. After the State rested its case-in-chief, Black's trial counsel again raised his special plea of double jeopardy. He argued the Houston officer testified Black's Harris County conviction for the unauthorized use of a motor vehicle involved the same stolen vehicle in the aggravated robbery. The trial court again overruled Black's special plea of double jeopardy. In his Anders brief, appellate counsel states the two offenses: (1) did not arise out of the same criminal episode because they were committed four days apart and in two different cities; (2) have dissimilar elements; and (3) have different venues and could not have been consolidated for trial. He also states there is no case law supporting Black's special plea of double jeopardy. In his pro se response, Black argued his Dallas County conviction for aggravated robbery of a motor vehicle and his prior Harris County conviction for the lesser included offense of unauthorized use of that motor vehicle violated the Double Jeopardy provisions of the United States and Texas Constitutions. We conclude Black has raised an arguable issue in his pro se response. See Dubois v. State, 799 S.W.2d 481 (Tex.App.-Corpus Christi 1990, pet. ref'd). Conclusion
We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We abate this appeal and remand it to the trial court. We order the trial court to appoint appellate counsel to represent Black, investigate the record, and file a brief on the merits. In the brief, appellate counsel should discuss whether Black's convictions for aggravated robbery and unauthorized use of a motor vehicle violated the Double Jeopardy provisions of the United States and Texas Constitutions and any other grounds that might arguably support the appeal. See Stafford, 813 S.W.2d at 511. We remove this appeal from the submission docket.