Appellant Devin Pena was convicted of the murder of Isaac Garcia, a first-degree felony, and he was sentenced to forty years' imprisonment. See Tex. Penal Code Ann. § 19.02(c). His appointed appellate counsel, Randall E. Pretzer, has filed a brief raising one issue which he summarizes as follows: "The trial court failed to abate the jury trial on the merits and order a comprehensive medical and psychological evaluation of Appellant under Chapter 46B [sic], et seq[.], Code of Criminal Procedure, as amended, to determine the status of his mens rea during the commission of the murder."

Appellant's brief exclusively cites authority concerning the unconstitutionality of grossly disproportionate sentencing. See, e.g., Solem v. Helm, 463 U.S. 277, 287 (1983); Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). It then argues as follows:

[T]hough Appellant's conduct exhibited an actus reus regarding the offense of murder, under the facts of the case, Appellant may not have had the necessary mens rea to justify his conviction for the murder. Accordingly, it is Appellant[']s position that it should have been incumbent upon the court, sua sponte, to abate the sentencing proceedings (or find a mistrial), and order an examination of Appellant by mental health experts as per Chapter 46B [sic], et seq[.], Code of Criminal Procedure, as amended, to determine if there was credible evidence of the possibility of a finding of NOT guilty because Appellant was driven by an irresistible impulse to commit the tragic murder of I[]s[a]ac Garcia.

The State argues that the issue is multifarious and therefore presents nothing for our review. See Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010) (noting that appellant's eighth point of error "is multifarious because it raises more than one specific complaint and risks rejection on that basis alone"); Cuevas v. State, 742 S.W.2d 331, 335-36 n.4 (Tex. Crim. App. 1987) ("By combining more than one contention in a single point of error, appellant risks rejection on the ground nothing is presented for review."); Taylor v. State, 190 S.W.3d 758, 764 (Tex. App.-Corpus Christi-Edinburg 2006) ("A multifarious point is one that embraces more than one specific ground. . . . Multifarious points present nothing for appellate review."), rev'd on other grounds, 233 S.W.3d 356 (Tex. Crim. App. 2007).

Even assuming the issue is reviewable, it is manifestly devoid of merit. To the extent counsel asserts appellant's sentence was unconstitutionally disproportionate to the offense, that issue was not preserved because appellant did not object to his sentence at trial. See Tex. R. App. P. 33.1; Trevino v. State, 676 S.W.3d 726, 730 (Tex. App.-Corpus Christi-Edinburg 2023, no pet.) ("When the sentence imposed is within the punishment range and not illegal, the failure to specifically object in open court or in a post-trial motion waives any error on appeal." (footnote omitted)) (citing Noland v. State, 264 S.W.3d 144, 151 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). In Trevino-a case involving the same appointed appellate counsel-we noted that "an unpreserved grossly disproportionate sentencing argument cannot conceivably persuade this Court and is thus frivolous." Trevino, 676 S.W.3d at 732-33 (listing fourteen cases handed down in the previous fifteen months, most of which involve the same appointed appellate counsel, in which we have rejected such claims).

To the extent counsel asserts the trial court should have ordered, sua sponte, a "medical and psychological" evaluation to determine whether appellant "was driven by an irresistible impulse" and therefore lacked the mens rea necessary to convict, he has not cited any relevant authority or made any cogent argument. See Tex. R. App. P. 38.1(i) (requiring an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (noting that "an appellate court has no obligation to construct and compose an appellant's issues, facts, and arguments with appropriate citations to authorities and to the record" (internal quotation omitted)). We note that, in Cosby v. State, the same appointed counsel raised a similar issue which we rejected out of hand. No. 13-24-00241-CR, 2024 WL 5198842, at *2 (Tex. App.-Corpus Christi- Edinburg Dec. 23, 2024, no pet. h.) (mem. op., not designated for publication) (finding appellant failed to preserve his argument that the Eighth Amendment's prohibition on grossly disproportionate punishments was violated because the trial court failed to abate the proceedings and "order an examination of [Cosby] by a mental health expert to determine if a more appropriate disposition would be [placing Cosby] . . . in a group home for those who suffer from continuous mental seizures").

Counsel refers to Chapter 46B of the Texas Code of Criminal Procedure; however, that statute concerns incompetency to stand trial, not insanity or any other defense to criminal responsibility. See Tex. Code Crim. Proc. Ann. ch. 46B.

The assertion that appellant may have been "driven by an irresistible impulse" to commit the murder alludes to a doctrine that has not been recognized in Texas for at least a century. See Carnes v. State, 275 S.W. 1002, 1002 (Tex. Crim. App. 1925) ("This state does not recognize the doctrine of irresistible impulse, and many authorities might be referred to sustaining this proposition."); Hill v. State, 320 S.W.3d 901, 904 n.7 (Tex. App.-Amarillo 2010, pet. refd) ("'[Irresistible impulse' is not now, nor has it ever been, recognized as a part of the affirmative defense of insanity by the jurisprudence of the State of Texas."); Saenz v. State, 879 S.W.2d 301, 308 (Tex. App.-Corpus Christi-Edinburg 1994, no pet.).

Appellant's appointed appellate counsel has thus filed a brief raising only arguments that "cannot conceivably persuade" us or which are wholly unsupported by legal authority or analysis. We repeat the admonition we issued in Trevino:

If, after review of the record in any given case, appellate counsel finds no non-frivolous arguments for appeal, the proper course of action is to file an Anders brief and a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967) ("[I]f counsel finds his [client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw."). An Anders brief demonstrates that "the appointed attorney has adequately researched the case before requesting to withdraw from further representation" and "sets out the attorney's due diligence investigation on behalf of his client." In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). The Anders brief also "provides . . . a roadmap" for the appellate court to follow in its required independent review of the record in Anders cases, which is undertaken so that "the court itself [is] assured that the attorney has made a legally correct determination that the appeal is frivolous"-and, in turn, further protects a defendant's rights. Id. at 407.

"The attorney's duty to withdraw [in a case where no non-frivolous arguments exist for appeal] is based upon his professional and ethical responsibilities as an officer of the court not to burden the judicial system with false claims, frivolous pleadings, or burdensome time demands." Id. at 407; see id. at 407 n.12 ("A lawyer, after all, has no duty, indeed no right, to

pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court, so if he believes in good faith that there are no other arguments that he can make on his client's behalf he is honorbound to so advise the court and seek leave to withdraw as counsel." (emphasis changed)).

Trevino, 676 S.W.3d at 731-32. And, we repeat the "serious warning" we issued to counsel in Cosby, which was handed down after the filing of briefs in this case:

Counsel in this case was counsel of record in Trevino v. State. 676 S.W.3d 726 (Tex. App.-Corpus Christi-Edinburg 2023, no pet.). Nevertheless, he failed to cite to Trevino. See Tex. Disciplinary Rules Prof'l Conduct 3.03 ("A lawyer shall not knowingly . . . fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."). We are also painfully aware that counsel essentially copied and pasted parts of his brief from that case into his brief in this case, which appears to be counsel's modus operandi when filing briefs with this Court. Counsel modifies the facts where necessary, but his legal analysis remains the same as the one that we rejected as frivolous in Trevino.

Counsel has an "ethical obligation to avoid burdening the courts with wholly frivolous appeals." Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014); see Tex. Disciplinary Rules Prof'l Conduct 3.01 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous."). And, more importantly, counsel has an ethical obligation to provide his client with competent and diligent representation. Tex. Disciplinary Rules Prof'l Conduct 1.01 cmt. 6 ("Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client's behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction, or personal inconvenience to the lawyer."). If counsel continues to urge frivolous arguments without any good faith justification, the Court may have no choice but to take action to ensure the integrity of the legal system and that the rights of counsel's clients are being adequately protected. See Tex. R. App. P. 43.6 ("The court of appeals may make any other appropriate order that the law and the nature of the case require."); Tex. Code Jud. Conduct Canon 3D(2) ("A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the Office of General Counsel of the State Bar of Texas or take other appropriate action."). We expect counsel to take this footnote for what it is: a serious warning.

Cosby, 2024 WL 5198842, at *3 n.3.

Appellant is entitled to effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. Having reviewed the record and the briefs filed in this case, we conclude that counsel has failed to comply with his ethical and professional duties to appellant and to this Court. See Tex. Disciplinary Rules Prof'l Conduct 3.01, 3.03.

Under these circumstances, we are compelled to take action to protect appellant's rights and the integrity of the appellate process. Accordingly, we hereby strike appellant's brief on our own motion, abate the appeal, and remand to the trial court with instructions to remove Randall E. Pretzer as counsel for appellant and to appoint new appellate counsel in his place. See Tex. R. App. P. 38.9(b) ("If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case.").

The name, address, telephone number, and state bar number of newly appointed counsel shall be included in the order of appointment. The trial court shall cause its order to be included in a supplemental clerk's record to be filed with the Clerk of this Court within thirty (30) days of the date of this order. The appeal will be reinstated upon receipt of the supplemental clerk's record. Appellant's brief will be due within thirty (30) days of the date that appellant's new counsel is appointed.

Pena v. State

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Pena v. State

Pena v. State

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Pena v. State

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Pena v. State

Pena v. State

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