Opinion
06-20-00045-CR
07-23-2020
LACHARLES NEAL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court Marion County, Texas
Trial Court No. F15142 Before Morriss, C.J., Burgess and Stevens, JJ. ORDER
LaCharles Neal entered an open plea of guilty to possession of a prohibited weapon and pleaded true to a single punishment enhancement paragraph. After a punishment hearing, the trial court found Neal guilty and sentenced him to twenty years' incarceration. On appeal, Neal's attorney has filed an appellate brief in which he concludes that the appeal is frivolous and without merit. Under the requirements of Anders v. California, counsel is required to conduct a "conscientious examination" of the record and file "a brief referring to anything in the record that might arguably support the appeal." Anders v. California, 386 U.S. 738, 744 (1967).
See TEX. PENAL CODE ANN. § 46.05(a)(1) (Supp. 2019).
Our independent investigation of the record in this case, as required by the Texas Court of Criminal Appeals in Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), revealed no evidence that the short-barrel shotgun alleged to have been possessed by Neal "was not registered in the National Firearms Registration and Transfer Record of the Bureau of Alcohol, Tobacco, Firearms, and Explosives," or that "the weapon was not classified as a curio or relic by the United States Department of Justice," as alleged in the indictment. After conducting our own investigation of the record, we have determined there are arguable issues that require additional briefing, including (1) whether sufficient evidence supports Neal's guilty plea in the absence of evidence that "the weapon was not registered in the National Firearms Registration and Transfer Record of the Bureau of Alcohol, Tobacco, Firearms, and Explosives," as alleged in the indictment; (2) whether sufficient evidence supports Neal's guilty plea in the absence of evidence that "the weapon was not classified as a curio or relic by the United States Department of Justice," as alleged in the indictment; (3) whether the 2015 amendments to Section 46.05 of the Texas Penal Code, which amended subsection (a)(1) and repealed former subsection (c), require the State to establish by sufficient evidence that the weapon was not "registered in the National Firearms Registration and Transfer Record of the Bureau of Alcohol, Tobacco, Firearms, and Explosives" and that it was not "classified as a curio or relic by the United States Department of Justice" in order to secure a conviction under Section 46.05(a)(1). See TEX. PENAL CODE ANN. § 46.05(a)(1).
"When we identify issues that counsel on appeal should have addressed but did not, we need not be able to say with certainty that those issues have merit; we need only say that the issues warrant further development by counsel on appeal." Wilson v. State, 40 S.W.3d 192, 200 (Tex. App.—Texarkana 2001, order). In such a situation, we "must then guarantee appellant's right to counsel by ensuring that another attorney is appointed to represent appellant on appeal." Stafford, 813 S.W.2d at 511 (citing Anders, 386 U.S. at 744). Accordingly, we grant current counsel's motion to withdraw, and we abate this case to the trial court for the appointment of new appellate counsel. The appointment is to be made within ten days of the date of this order. Newly appointed appellate counsel is to address the issues presented here, as well as any other issues that warrant further development on appeal.
A memorialization of the trial court's appointment shall be entered into the record of this case and presented to this Court in the form of a supplemental clerk's record within ten days of the date of appointment.
The current submission date of August 6, 2020, is hereby withdrawn. Upon receipt of the supplemental clerk's record contemplated by this order, our jurisdiction over this appeal will resume and we will establish a new briefing schedule.
IT IS SO ORDERED.
BY THE COURT DATE: July 23, 2020