Opinion
No. 10-12-00223-CR
01-17-2013
ALEXANDER VANTOLT TOLBERT, Appellant v. THE STATE OF TEXAS, Appellee
From the 21st District Court
Burleson County, Texas
Trial Court No. 13,990
ABATEMENT ORDER
Alexander Vantolt Tolbert was convicted of the offenses of aggravated robbery and injury to an elderly individual. TEX. PEN. CODE ANN. §§ 29.03, 22.04 (West 2011). Tolbert was sentenced to twelve years in prison on the aggravated robbery charge and ten years in prison on the injury to an elderly individual charge. Counsel for Tolbert has filed a motion to withdraw as counsel and a brief in support of his motion pursuant to Anders v. California. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
The brief submitted by Tolbert's court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and, therefore, that any appeal would lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Tolbert's counsel sent a copy of the brief to Tolbert, requested permission to withdraw from the case, and notified Tolbert of his right to review the record and file a pro se response, which Tolbert has not done.
When this Court receives an Anders brief from a defendant's court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel-determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (citing same passage from Anders). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." McCoy, 486 U.S. at 436. An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511. In conducting our review, we consider any pro se response that the defendant files to his appointed counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005).
Our role in this Anders appeal is limited to determining whether arguable grounds for appeal exist. Id. at 827. If we determine that an arguable ground for appeal exists, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court must then appoint another attorney to present all arguable grounds for appeal. See id. We do not rule on the ultimate merits of the issues raised by a defendant in a pro se response, if any, at this juncture. Id. Rather, if we determine that there are arguable grounds for appeal, Tolbert is entitled to have new counsel address the merits of all of the issues raised. Id. "Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised." Id.
Our independent review of the record indicates that Tolbert, although indigent, was assessed attorney's fees in the judgment of conviction for the aggravated robbery. Based on our independent review of the record, we find that this is an arguable ground for appeal. See Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Wiley v. State, No. 10-12-00259-CR, 2012 Tex. App. LEXIS 9851 at *2 (Tex. App.—Waco Nov. 29, 2012, no pet. h.). Court-appointed counsel's brief does not address this arguable ground. Therefore, we abate this appeal and remand this case to the trial court for the entry of an order withdrawing the appointment of present counsel and the appointment of new counsel. A copy of the order appointing new counsel shall be forwarded to the Clerk within ten days of the date of this abatement order. Only after new counsel is appointed and the issue identified in this order, as well as any other issues that counsel wishes to advance in the brief on the merits, are addressed will we reach the merits of this appeal. Upon receipt of the appointment of new counsel, we will reinstate the appeal and new counsel will then have thirty days to file a brief unless a motion for extension for good cause is filed and granted by this Court pursuant to the Rules of Appellate Procedure.
The current date set for submission is set aside and this proceeding is abated.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
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