No. 05-03-01566-CR
Opinion Filed November 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F98-70342-QK. Abated and Remanded.
Before Justices WHITTINGTON, FRANCIS, and LANG.
Opinion By Justice LANG.
Mitchell Ray Rodgers was convicted of possession with intent to deliver heroin in an amount of four grams or more, but less than two hundred grams. After finding Rodgers guilty, the jury found the two enhancement paragraphs true and assessed his punishment at imprisonment for life. Rodgers's appellate counsel filed a motion to withdraw as counsel and a brief in which he concludes the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). Rodgers filed a pro se response claiming that there are four arguable issues for appeal. After reviewing the record, we have identified at least one arguable issue for appeal and two instances where the judgment does not accurately reflect the proceedings.
Arguable Ground for Appeal
Rodgers pleaded not true to the allegations contained in the enhancement paragraphs of the indictment. At the beginning of the hearing on punishment, the trial court held a hearing on the validity of one of the prior convictions alleged to enhance Rodgers's punishment. Trial counsel objected to the use of one prior conviction on the basis that it was void. In support of his objection, he offered, and the trial court admitted, a mandate showing relief had been granted on Rodgers's application for a writ of habeas corpus. The mandate did not state the basis for the court's grant of relief. Trial counsel argued the Texas Court of Criminal Appeals held that the indictment was void, and it was the position of the district clerk's office that the indictment was void and could not be used for any purpose. The trial judge commented that he could not determine from the mandate what relief had been granted by the writ of habeas corpus. In response to the trial court's inquiry, trial counsel admitted he had seen the opinion, but he did not bring it to court because he thought the mandate was sufficient. The trial court overruled appellant's objection to the prior conviction alleged to enhance his punishment. Trial counsel's failure to present the trial court with the necessary documents to support his assertions regarding the validity of the prior conviction prevented the trial judge from being able to fully address the matter. Moreover, the punishment range for the offense, with only one enhancement paragraph was fifteen to ninety-nine years or life imprisonment and a possible fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2004-05). We conclude trial counsel's omission raises an arguable issue of ineffective assistance of counsel. Inaccuracies in the Judgment
Appellate counsel points out that the judgment states the incorrect date of the offense. The judgment lists the date of the offense as "11/08/98." However the remainder of the record clearly shows the offense was committed on December 8, 1998. Also, this Court notes that the judgment incorrectly states Rodgers pleaded true to the enhancement paragraphs when he actually pleaded not true. Accordingly, the judgment does not accurately reflect the proceedings. Conclusion
After reviewing the record, we have identified at least one arguable issue for appeal and two instances where the judgment does not accurately reflect the proceedings. We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We abate this appeal and remand it to the trial court. We order the trial court to appoint appellate counsel to represent Rodgers, investigate the record, and file a brief on the merits. In the brief, appellate counsel should discuss the effectiveness of trial counsel, the inaccuracies in the judgment, and any other grounds that might arguably support the appeal. See Stafford, 813 S.W.2d at 511. We remove this appeal from the submission docket.