Robert Milligan v. State ( 2005 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00531-CR
Robert Milligan, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 9010837, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
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.
___________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed: June 17, 2005
Do Not Publish
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