No. 05-03-01242-CR
Opinion Filed December 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-50938-WQ. Abated.
Before Justices BRIDGES, RICHTER, and LANG
Opinion By Justice BRIDGES.
A jury convicted David Carter of first-degree murder and assessed his punishment at sixty years confinement. Appellant now appeals his conviction. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. Appellant filed a pro se response to counsel's brief raising factual insufficiency of the evidence and ineffective assistance of counsel as arguable issues for appeal. We abate the appeal for appointment of new counsel.
Standard Of Review
In conducting our Anders review, we review the entire record to determine whether the appeal is "wholly frivolous" or if there are issues "arguable on their merits." See Anders, 386 U.S. at 744. An appeal is wholly frivolous and lacks merit when it "lacks any basis in law or fact." See McCoy v. Court of Appeals, 486 U.S. 429, 436, 438 n. 10 (1988). All doubts and ambiguous legal questions must be resolved in appellant's favor. See id. at 444. The Evidence
Patrick Robinson was shot in the head while driving past an apartment complex shortly before 2:00 a.m. Robinson's car was the second vehicle in a three-vehicle convoy that was sprayed with gunfire by a gunman firing from a breezeway in the apartment complex. After Robinson was shot, his car crashed into a tree and his companions fled. After regrouping, Robinson's companions returned to the crime scene and heard additional gunshots apparently fired at them. One person moved Robinson over to the front passenger seat and drove the car to a housing project several miles away where the police and an ambulance were summoned. Robinson died several days later without regaining consciousness. During the trial, two of Robinson's companions identified appellant, a former schoolmate, as the gunman. One of the identifying witnesses had given the police appellant's name on the night of the shooting. The second identifying witness testified he identified appellant to the police on the night of the shooting but his written statement described the shooter only as a "black dude." A third eyewitness could not identify appellant, but did provide a description of the gunman. On the day following the shooting, police officers found six shell casings near the breezeway. Analysis showed all of the casings were fired from the same gun. Failure To Deliver Reasonable Doubt Instruction In Jury Charges
In alleging he received ineffective assistance of counsel, appellant contends counsel failed to obtain a "proof beyond a reasonable doubt" instruction regarding several extraneous acts admitted into evidence during the guilt-innocence phase of trial. Appellant does not describe the extraneous acts at issue. Our review reveals the only extraneous act admitted into evidence during the guilt-innocence phase was the second round of gunshots fired after Robinson's companions returned to assist Robinson. As a threshold issue, we must determine whether appellant was entitled to a reasonable doubt instruction before we can consider whether counsel was ineffective for failing to secure such an instruction. Because we conclude an arguable issue exists regarding appellant's entitlement to the instruction, we do not reach the merits of the ineffective assistance complaint. If evidence of an unadjudicated extraneous offense is admitted during the punishment phase of trial, the trial court must instruct the jury sua sponte that it may not consider the offense unless the State has proven the offense beyond a reasonable doubt. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000) (op. on reh'g). With regard to the guilt-innocence charge, prior to the issuance of Huizar, the court of criminal appeals had already determined that when an extraneous offense is admitted into evidence for a limited purpose during the guilt-innocence phase of trial, the trial court must, upon the defendant's request, include a reasonable doubt instruction in the guilt-innocence jury charge. See George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App. 1994). In this case, appellant did not request a reasonable doubt instruction nor did he object to the charge. Thus, the trial court had no duty to include the instruction in the charge unless Huizar extends to the guilt-innocence phase of trial. The court of criminal appeals has not yet determined whether Huizar mandates a "reasonable doubt" jury instruction for extraneous offenses admitted during the guilt-innocence phase of trial. See Rodriguez v. State, 137 S.W.3d 228, 231 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (opinion describing itself as the first published opinion to address the issue). Rodriguez does identify four unpublished opinions from other intermediate appellate courts, including one from this Court, showing a split in the courts regarding whether Huizar extends to the guilt-innocence phase of trial. Moreover, the Fort Worth Court of Appeals has held that when extraneous offense evidence is offered during the guilt-innocence phase of a jury trial, the trial court must give the jury a reasonable doubt instruction in the punishment-phase charge. See Allen v. State, 47 S.W.3d 47, 50 (Tex.App.-Fort Worth 2001, pet. ref'd). Thus, if the firearm discharge evidence is an extraneous offense, the failure to include a reasonable doubt instruction in either the guilt-innocence jury charge or the punishment jury charge raises arguable appellate issues. A complicating factor for appellant's appeal is the probable classification of the firearm discharge evidence as "same transaction contextual evidence" intended to impart "to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven." Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993). At least two intermediate courts of appeal have published opinions holding that a reasonable doubt instruction is not necessary for extraneous acts admitted as "same transaction contextual evidence." See Garza v. State, 2 S.W.3d 331, 335 (Tex.App.-San Antonio 1999, pet. ref'd); Norrid v. State, 925 S.W.2d 342, 349 (Tex.App.-Fort Worth 1996, no pet.). The court of criminal appeals, however, has not squarely addressed whether "same transaction contextual evidence" should be excepted from the Huizar ruling. See King v. State, 125 S.W.3d 517, 519-20 (Tex.Crim.App. 2003) (Cochran, J., statement concurring with order refusing discretionary review). In the absence of mandatory authority, and mindful of the need to resolve all doubtful issues in appellant's favor when conducting an Anders review, we conclude the record reflects an arguable issue concerning whether appellant was entitled to a "reasonable doubt" instruction in the jury charges regarding the extraneous unlawful discharge of a firearm offense. Because we conclude an arguable issue exists, we need not consider the merits of the grounds appellant presents in his pro se response. We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We abate the appeal and remand it to the trial court. We order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits. See id. In the brief, counsel should discuss the lack of jury instructions regarding the burden of proof for evidence of extraneous offenses introduced at trial and any other grounds that might arguably support the appeal. See id. We further order the trial court to inform this Court in writing of the identity of new counsel and the date new counsel is appointed. Appellant's brief will be due thirty days after new counsel is appointed. The State's brief will be due thirty days after appellant's brief is filed. We remove this cause from the submission docket.