Opinion
No. 05-16-00552-CR
04-18-2017
ELIAS MUNOZ GUTIERREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas
Trial Court Cause No. F15-12656-L
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
A jury convicted Elias Munoz Gutierrez of aggravated assault involving family violence, causing serious bodily injury with a deadly weapon, and assessed punishment at life imprisonment and a $10,000 fine. On appeal, appellant's attorney filed a brief in which she 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 and states there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811-12 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant and advised him of his right to review the record and file a pro se response. In addition, we advised appellant of his right to file a pro se response, but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014) (identifying duties of appellate courts and counsel in Anders cases). After reviewing the record, we conclude there is at least one arguable issue. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (explaining appellate court's duty in Anders cases).
When we receive an Anders brief from an appellant's court-appointed attorney asserting that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. An appeal is not wholly frivolous when it is based on "arguable" grounds. See Anders, 386 U.S. at 744.
If we conclude, after conducting our Anders review, that "appellate counsel has exercised professional diligence in assaying the record for error" and agree that the appeal is frivolous, we should grant counsel's motion to withdraw, Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006), and affirm the trial court's judgment. In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008). However, if we conclude "either that appellate counsel has not adequately discharged [her] constitutional duty to review the record for any arguable error, or that the appeal is not wholly frivolous, notwithstanding appellate counsel's efforts," we must abate the appeal and return the cause to the trial court for the appointment of new appellate counsel. Meza, 206 S.W.3d at 689.
Here, the record shows appellant pleaded guilty before the trial court to aggravated assault involving family violence, causing serious bodily injury with a deadly weapon, a firearm. See TEX. PENAL CODE ANN. § 22.02(a); TEX. FAM. CODE ANN. § 71.0021, 71.005 (West 2014 & Supp. 2016). The State offered into evidence appellant's "signed, written, voluntary Judicial Confession and Stipulation of Evidence" without objection. The judicial confession, which includes appellant's consent to the stipulation of evidence and the waiver of the appearance, confrontation, and cross-examination of witnesses, was signed by appellant, appellant's trial attorney, and the assistant district attorney; however, it was not signed by the trial judge. After admitting the judicial confession into evidence, the trial court passed the case for sentencing before a jury, at appellant's request. Following voir dire, appellant pleaded guilty before the jury who then heard testimony from several witnesses. After closing arguments, the trial court instructed the jury to find appellant guilty and to assess punishment anywhere within the range of punishment contained in the court's charge. The jury returned a guilty verdict and assessed punishment at life in prison and a $10,000 fine.
When an appellant pleads guilty to a felony offense, the State must introduce evidence into the record supporting appellant's guilt. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005). A defendant may stipulate in writing to the evidence if he
consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.Id. In this case, appellant's waiver and consent was not approved by the trial court in writing as required by article 1.15. Id. Thus, we conclude there is at least one arguable issue. See Bledsoe, 178 S.W.3d at 826-27.
We grant appellate counsel's motion to withdraw. See Stafford, 813 S.W.2d at 511. We remand the appeal to the trial court and order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief that addresses the issue noted above 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 appellate counsel and the date counsel is appointed.
We remove the appeal from the submissions docket. We abate the appeal to allow the trial court to comply with this order.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160552F.U05