Opinion
No. 11-10-00138-CR
Opinion filed February 24, 2011. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 42nd District Court, Taylor County, Texas, Trial Court Cause No. 23302A.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
ORDER
Upon his plea of not guilty, the jury convicted Roger Dale Brecheen of murder and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of forty-eight years. We abate the appeal and remand to the trial court for appointment of new appellate counsel. Appellant's court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel asserts that he has professionally and conscientiously examined the record and applicable law and that he has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel's brief. It appears that court-appointed counsel has attempted to comply with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.-Eastland 2005, no pet.). Appellant has filed a pro se response contesting court-appointed counsel's assertion that the appeal is frivolous. Among other things, appellant contests the sufficiency of the evidence supporting his conviction. He also asserts various constitutional and statutory violations and a potential error in the court's charge. In addressing an Anders brief and a pro se response, a court of appeals may only determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and found no reversible error or (2) that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Schulman, 252 S.W.3d 403; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Following the procedures outlined in Anders and Schulman, we have independently re-viewed the record, and we disagree with court-appointed counsel's conclusion that an appeal would be frivolous. We note that the guilt/innocence phase of trial spanned three days. We additionally note that court-appointed counsel listed three potential issues that could be raised without any explanation of why the presentation of these potential issues would be frivolous. Accordingly, we grant counsel's motion to withdraw, abate this proceeding, and remand the case to the trial court for appointment of new appellate counsel. See Bledsoe, 178 S.W.3d at 826-27. We direct the trial court to appoint new counsel to represent appellant on appeal. The trial court shall furnish the name, address, telephone number, and state bar number of new counsel by its order appointing new counsel. The order shall be included in a supplemental clerk's record, which shall be filed with the clerk of this court by March 28, 2011. Appellant's brief shall be due thirty days from the date of the trial court's appointment of new counsel. All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure. By this order, we express no opinion on the merits of any issues or potential issues the record may present. The motion to withdraw is granted, the appeal is abated, and the cause is remanded to the trial court in accordance with this order.