Epolito Lozano Junior v. State ( 2018 )

Motions Granted and Abatement Order filed February 13, 2018
In The
Fourteenth Court of Appeals
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NO. 14-17-00026-CR
NO. 14-17-00027-CR
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EPOLITO LOZANO JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause Nos. 75194 and 75195
ABATEMENT ORDER
In appeal 14-17-00026-CR, appellant appeals his convictions for aggravated
assault and deadly conduct. In appeal 14-17-00027-CR, he appeals his convictions
for aggravated assault, deadly conduct, and unlawful possession of a weapon.
Appellant’s appointed counsel filed a brief in which he concludes the appeals are
wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967);
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). He has moved to withdraw
as counsel in each case.
We disagree with appellate counsel’s conclusion that there are no arguable
issues for appeal. See Anders, 386 U.S. at 744. By way of example, and without
limitation, we observe the following:
The paragraph charging appellant with deadly conduct in the indictment
underlying appeal 14-17-00026-CR is identical to that in the indictment underlying
appeal 14-17-00027-CR. No motion to quash or other objection was lodged to the
identical charges. Appellant pleaded guilty to and was convicted of those identical
charges. No objection was lodged to appellant’s being convicted twice and punished
twice for one offense. The question arises whether appellant was provided
ineffective assistance of counsel and, if so, whether it is apparent on the face of the
record. The Anders brief does not address this issue.
Accordingly, we GRANT counsel’s motion to withdraw, ABATE the
appeals, and remand to the trial court with instructions to appoint other counsel and
have supplemental clerk’s records containing the appointment filed with the clerk of
this court by March 15, 2018.
The appeals are abated, treated as closed cases, and removed from this court’s
active docket. The appeals will be reinstated on this court’s active docket when the
trial court’s supplemental clerk’s records are filed with this court.
PER CURIAM
Panel consists of Justices Busby, Brown, and Jewell.
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