Opinion
Nos. 05-03-00055-CR, 05-03-00056-CR, 05-03-00057-CR
Opinion Filed September 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-50415-IU, F02-50416-VU, F02-72973-JU. Abate.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
Ronald Gene Stribling appeals his convictions for possession of cocaine in an amount of four grams or more, but less than two hundred grams, possession of a firearm by a felon, and possession of phencyclidine in an amount of one gram or more but less than four grams. Before a jury, appellant entered guilty pleas to the offenses and pleas of true to two enhancement paragraphs in the drug cases and one enhancement paragraph in the firearm case. After the jury found appellant guilty, the trial court assessed punishment at thirty years confinement for the two drug offenses and ten years confinement for the firearm offense. Appellant's attorney filed a brief in which she concludes the appeals are wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response, but appellant did not file a pro se response. Although counsel filed an Anders brief, she included in her brief a "point of error" contending the trial court arguably erred by not admonishing appellant of the deportation consequences of his guilty pleas. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon Supp. 2004). Citing Ex parte Akhtab, counsel concludes the error is not reversible because trial counsel did not object to the omission of the deportation admonishment and the record does not affirmatively show that appellant is not a U.S. citizen. See Ex parte Akhtab, 901 S.W.2d 488, 490 (Tex.Crim.App. 1995). Thus, although counsel presents the deportation admonishment issue in the form of a point of error, she ultimately concludes that both the issue and the appeals are frivolous. In a brief response, the State agrees with counsel that the appeals are frivolous, but disagrees with her decision to file an Anders brief containing a point of error. We agree with the State that points of error have no place in an Anders brief. If counsel's review of the record reveals an arguable issue, counsel should not present the issue in an Anders brief. See Brown v. State, 915 S.W.2d 533, 535 n. 1 (Tex.App.-Dallas 1995), aff'd 943 S.W.2d 35 (Tex.Crim.App. 1997). Rather, arguable issues should be raised in a traditional brief on the merits. See id. We disagree, however, with the parties' characterizations of the appeals as frivolous. Arguably, Akhtab, a post-conviction writ case focused on a contention of ineffective assistance of counsel and applying outdated law, is distinguishable from the present cause. See Akhtab, 901 S.W.2d at 489-90. The record in the present cause shows appellant initially entered not guilty pleas, but then changed his pleas to guilty during the State's presentation of its evidence. Outside the jury's presence, the trial court admonished appellant about the consequences of his pleas and the punishment range associated with the offenses, but it did not admonish appellant that he could be deported if he was not a citizen. The record is silent regarding appellant's citizenship. Without prejudging the ultimate merits of the issue, we conclude the failure to properly admonish appellant is an arguable issue for appeal. See Burnett v. State, 88 S.W.3d 633, 638-39 (Tex.Crim.App. 2002); Hwang v. State, 130 S.W.3d 496, 499-501 (Tex.App.-Dallas 2004, pet. ref'd). We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We abate the appeals and remand them to the trial court. We order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits. See id. In the brief, counsel should discuss the sufficiency of the trial court's admonishments 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 new counsel and the date new counsel is appointed. Appellant's brief will be due thirty days after new counsel is appointed. The State's brief will be due thirty days after appellant's brief is filed. We remove these causes from the submission docket.