Robert Milligan v. State ( 2005 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-04-00531-CR

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Robert Milligan, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT

NO. 9010837, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

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M E M O R A N D U M O P I N I O N

A jury found appellant Robert Milligan guilty of five counts of aggravated sexual assault and one count of burglary of a habitation. For each count, the jury assessed a term of life imprisonment.

Appellant’s court-appointed counsel filed a brief in which he states that the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Counsel reached this conclusion by applying the so-called DeGarmo doctrine, by which a defendant who testified at the punishment stage and admitted his guilt was deemed to have waived any error at the guilt-innocence stage. DeGarmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985). This doctrine has been largely, if not entirely, overruled. Leday v. State, 983 S.W.2d 713, 725 (Tex. Crim. App. 1998); Gutierrez v. State, 8 S.W.3d 739, 745 (Tex. App.—Austin 1999, no pet.). Counsel’s conclusion that the appeal is frivolous is therefore without legal foundation.  

The appeal is abated. Counsel for appellant, Mr. William B. Mange, is ordered to tender a new brief based on an examination of the record and legal analysis that takes into account the opinions in Leday, Gutierrez, and others decided since the demise of the DeGarmo doctrine. Counsel shall tender this brief for filing no later than July 29, 2005. The filing of the State’s brief and resubmission of the appeal will follow as provided by the appellate rules.  

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                                                Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Filed: June 17, 2005

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