Latoya Denise McMullen v. State ( 2016 )

Remanded and Opinion Filed October 20, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01284-CR
No. 05-15-01285-CR
LATOYA DENISE MCMULLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F14-24837-U, F14-24545-U
MEMORANDUM OPINION
Before Justices Francis, Stoddart, and Schenck
Opinion by Justice Francis
These cases are before us on the motion of appellant’s appointed counsel to withdraw as
counsel for appellant Latoya Denise McMullen under Anders v. California, 386 U.S. 738 (1967).
Appointed counsel concluded the appeals from convictions for repeated violation of a protective
order and stalking are wholly frivolous and without merit. See TEX. PENAL CODE ANN. §§
25.072(a), (e), 42.072(a), (b) (West Supp. 2015). The trial court assessed punishment, following
adjudication of appellant’s guilt, at imprisonment for five years in each case.
In Anders, the Supreme Court created a procedure for remedying the conflict between an
appellant’s right to appointed counsel to present her appeal and the attorney’s duty not to make
frivolous arguments on appeal. If an attorney believes the appeal is frivolous, he must withdraw
from representing the appellant. McCoy v. Court of Appeals, 486 U.S. 429, 437 (1988). To
withdraw, the appointed attorney must file a motion to withdraw accompanied by a brief
showing the appellate court that the appeal is frivolous. Id. at 439.
In these cases, the brief appellate counsel filed does not meet the requirements of Anders.
The statement of the case, statement of facts, and summary of the argument refer to a person not
the appellant. Counsel’s brief does not contain any analysis on the sufficiency of the evidence,
the admissibility of evidence of appellant’s guilt, the validity of the punishment assessed, or
whether the appellant received effective assistance of counsel at trial. Counsel’s brief shows
counsel failed to make a professional evaluation of the record, thereby denying appellant her
right to equal protection of the law. See Anders, 386 U.S. at 744. Accordingly, the appropriate
remedy is to strike appellate counsel’s inadequate Anders brief and have the trial court appoint
new counsel to review the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991).
We strike appellate counsel’s inadequate Anders brief and we grant his motion to
withdraw. We order the trial court to appoint new counsel within thirty days of this order.
Counsel shall represent appellant, investigate the record, and file a new brief for appellant. In
the brief, new counsel should discuss any grounds that might arguably support these appeals.
See Id. at 511.
The trial court is ordered to inform this Court in writing of the identity of new counsel
and the date that new counsel is appointed. New counsel’s brief will be due thirty days after the
trial court makes the appointment. The State’s brief will be due thirty days after appellant’s brief
is filed.
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This Court will then reschedule the case for submission.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
151284F.U05
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