Opinion
No. 04-15-00771-CR
07-06-2016
John David GARCIA, Appellant v. The STATE of Texas, Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 11-05-075-CRW
Honorable Russell H. Wilson, Judge Presiding
ORDER
Appellant's court-appointed appellate attorney filed an Anders brief in this appeal. See Anders v. California, 386 U.S. 738 (1967). Counsel advised appellant of his right to review the record and file his own brief, and explained to appellant the procedure for obtaining the record. See Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Appellant, who is incarcerated, has filed motions to obtain a copy of the record and for the appointment of new counsel.
Appellant's motion for access to the appellate record is granted. We order the clerk of this court to send appellant, pro se, a copy of the record. We further order appellant's pro se brief is due August 22, 2016. Appellant is advised that no extensions of time to file the pro se brief will be granted absent a showing of extraordinary circumstances.
For the reasons that follow, appellant is not entitled to the appointment of new counsel at this time. "Lawyers . . . are ethically bound not to bring frivolous appeals." Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, no writ) (citing McCoy v. Court of Appeals, 486 U.S. 429, 436 (1988)). Therefore, an indigent appellant is not entitled to appointed counsel if his appeal is wholly frivolous. Anders, 386 U.S. at 744. Appointed counsel must make a conscientious review of the record to decide if it presents any non-frivolous grounds for appeal. If this review convinces appointed counsel the appeal is wholly frivolous, he must file "a brief referring to anything in the record that might arguably support the appeal," provide the appellant with a copy of this brief, and ask this court for permission to withdraw. Id. This court must then provide the appellant with time to file a pro se brief "to raise any points he chooses . . . ." Id. This pro se brief is the appellant's opportunity to help this court decide if the record on appeal raises any nonfrivolous ground for an appeal. Because appellant is not entitled to the appointment of new counsel at this stage in the process, we deny appellant's motion for new counsel.
/s/_________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 6th day of July, 2016.
/s/_________
Keith E. Hottle
Clerk of Court