Opinion
No. 11-17-00328-CR
05-24-2018
KHALIFAH IBN MUHAMMAD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court Ector County, Texas
Trial Court Cause No. D-45,839
ORDER
The jury convicted Appellant, Khalifah Ibn Muhammad, of the offense of murder, and the trial court assessed punishment at confinement for life and a $10,000 fine. We abate the appeal.
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 and without merit. Counsel has provided Appellant with a copy of the brief, the motion to withdraw, and a copy of the clerk's record and the reporter's record. Counsel advised Appellant of his right to review the record and file a response to counsel's brief. Counsel also advised Appellant of his right to file a petition for discretionary review with the clerk of the Texas Court of Criminal Appeals seeking review by that court. See TEX. R. APP. P. 48.4, 68. It appears that court-appointed counsel has attempted to comply with the requirements of Anders v. California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); 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. [Panel Op.] 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.).
We note that this court granted Appellant thirty days in which to exercise his right to file a response to counsel's brief and that Appellant has not filed a response.
Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we disagree with court-appointed counsel's conclusion that the appeal is frivolous. We are of the opinion that there are arguable grounds for an appeal. In this regard, we note that this appeal stems from a contested trial for murder, which is not particularly amenable to disposition under Anders.
Accordingly, we grant counsel's motion to withdraw, abate this proceeding, and remand the cause to the trial court for the appointment of new appellate counsel. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). 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 in 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 on or before June 8, 2018. Appellant's brief will be due to be filed in this court thirty days from the date this appeal is reinstated. All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.
The motion to withdraw is granted; the appeal is abated; and the cause is remanded to the trial court in accordance with this order.
PER CURIAM May 24, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.