Rodney Milum v. State ( 2015 )

Order issued June 18, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01027-CR
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RODNEY MILUM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1347034
ORDER FOR SUPPLEMENTAL BRIEFING
Rodney Milum was convicted of sexual assault of a child1 and sentenced to
two years’ incarceration suspended in favor of eight years’ community supervision.
The trial court imposed 41 conditions of community service, including:
1
TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011).
You may enter a church, synagogue, or other place of worship only to
attend a public service. You may arrive fifteen (15) minutes prior to
the service and you must depart the place of worship immediately
following the service. You are not to enter any area of the place of
worship where children’s classes are being conducted or where
children play or engage [in] other activities beginning 10/18/2013.
You may not access to the internet through any manner of method,
beginning 10/18/2013, for any reason unless specifically ordered by
the Court. You may not view, receive, download, transmit, or possess
pornographic material on any computer. You are not to possess
pornographic software, images, or material on any hard drive,
[computer disk], or magnetic tape.
The record contains no objection to any conditions of community supervision.
We have abated this appeal twice. We first abated after Milum’s first
appellate counsel filed a motion to withdraw from representation and an Anders
brief finding no arguable grounds for appeal. See Anders v. California, 386 U.S.
738, 744, 87 S. Ct. 1396, 1400 (1967); In re K.D., 127 S.W.3d 66, 67 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). As required by Anders, we independently
reviewed the record and concluded that arguable grounds for appeal existed. See
Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford v. State, 813 S.W.2d 503, 511
(Tex. Crim. App. 1991). Accordingly, we abated, remanded for appointment of
new appellate counsel, and ordered new briefing. See Bledsoe v. State, 178 S.W.3d
824, 827 (Tex. Crim. App. 2005).
We ordered new appellate counsel to:
(1) fully investigate and make a conscientious examination of the
record;
2
(2) address all arguable, non-frivolous grounds for appeal in a brief on
the merits;
(3) specifically address the issue of whether any or all the 41
conditions of community supervision imposed by the trial court are
invalid. See, e.g. U.S. v. Tang, 718 F.3d (5th Cir. 2003); Barton v.
State, 21 S.W.3d 287, 289 (Tex. Crim. App. 2000); Mitchell v.
State, 420 S.W.3d 448 (Tex. App.—Houston [14th Dist.] 2014);
TEX. CODE CRIM. P. art. 42.12 §11 (a); cf. Doughty v. State,
2014 WL 5465697 (Tex. App.—Houston [1st Dist.] October 28,
2014, no pet.);
(4) whether failure to object to any of the conditions of community
supervision constituted ineffective assistance of counsel;
(5) address any other grounds counsel deems appropriate.
Milum’s second appellate attorney filed a brief addressing these issues;
however she did so in an Anders brief finding no arguable grounds for appeal; she
also moved to withdraw from representation. See Anders, 386 U.S. at 744, 87 S.
Ct. at 1400; In re K.D., 127 S.W.3d at 67. We again independently reviewed the
record and determined that arguable grounds for appeal existed. Accordingly, we
once again abated, remanded for appointment of new appellate counsel, and
ordered new briefing. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.
2005).
Our second abatement order included the same five requirements as the
first.2 But the merits brief filed by Milum’s third appellate counsel does not address
2
We also added a sixth requirement: to examine “whether the principle of waiver
applies where there is a failure to object to or preserve error in regards to an
unconstitutional order.”
3
ineffective assistance of counsel, as required by our order. Accordingly, it does not
comply with the second abatement order. Further, it does not address an issue
determined by this Court to be an arguable ground for appeal.
When we discover arguable grounds for appeal, abate, and remand for the
appointment of new appellate counsel, new counsel should “present all arguable
grounds for appeal.” See Garcia v. State, 01-05-00718-CR, 2007 WL 441716, at
*1 (Tex. App.—Houston [1st Dist.] Feb. 8, 2007, no pet.) (mem. op., not
designated for publication) (emphasis added); see Banks v. State, 341 S.W.3d 428,
430 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Although we do not become
advocates for the defendant, “if the Court of Appeals does find that there are
arguable grounds, the appellate court must then guarantee appellant's right to
counsel by ensuring” appellate representation. Stafford, 813 S.W.2d at 511; accord
Anders, 386 U.S. at 744, 87 S.Ct. at 1400 (“[I]f [an appellate court] finds any of
the legal points arguable on the merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.”). “Only
after the issues have been briefed by new counsel may the court of appeals address
the merits of the issues raised.” Bledsoe, 178 S.W.3d at 827 (Tex. Crim. App.
2005).
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Conclusion
We order Milum to file a supplemental brief addressing whether the failure
to object constitutes ineffective assistance of counsel and any other unbriefed
arguable grounds for appeal. Milum’s amended brief will be due ten days from the
date of this order. The State’s response brief will be due thirty days from the date
Milum’s brief is filed.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
 Acting individua Acting for the Court
Panel consists of Justices Jennings, Bland, and Brown.
Date: June 17, 2015
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