Edward Reveteriano v. State ( 2003 )

NO. 07-02-0387-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 6, 2003 ______________________________

EDWARD REVETERIANO,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 251^ST DISTRICT COURT OF POTTER COUNTY;

NO. 44,127-C; HON. PATRICK A. PIRTLE, PRESIDING _______________________________ Order ______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

Edward Reveteriano (appellant) appeals his conviction for Burglary of a Habitation. His court-appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), therein asserting that a review of the record shows no reversible error. The appellate record in this cause, however, is missing a portion of the reporter's record. Specifically, the portion missing is the original guilty plea hearing held on October 25, 2001. The issue, therefore, is whether court-appointed counsel may file an Anders brief when the appellate record being reviewed is incomplete. For the reasons set forth below, we conclude he cannot.

The purpose of an Anders brief is to support counsel's motion to withdraw. Through it, counsel effectively illustrates to the court 1) that he performed a conscientious examination of the record to discover potential error and 2) that the appeal is frivolous. Marsh v. State, 959 S.W.2d 224, 225 (Tex. App.--Dallas 1996, no pet.); Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App.--Dallas 1995, no pet.). Without a complete record, however, it cannot be said that counsel conscientiously searched for potential error and, as a result of that search, legitimately concluded that the appeal was frivolous. See Mason v. State, 65 S.W.3d 120 (Tex. App.--Amarillo 2001, no pet.) (striking the Anders brief because the portion of the record containing the voir dire was missing); see also Marsh v. State, 959 S.W.2d at 225-26 (striking the Anders brief and remanding for the appointment of new counsel because the record was incomplete). Simply put, one cannot say that there is no arguable merit to an appeal based upon the review of an incomplete record.

In the case at bar, appellate counsel represented in his Anders brief that he had filed a request with the court reporter on November 11, 2002, to transcribe the original plea hearing held on October 25, 2001. This request was denied. Because the original guilty plea hearing conducted on October 25, 2001, was not transcribed and is missing from the appellate record, we strike the Anders brief filed by appellant's counsel. We further order the official court reporter for the 251st Judicial District Court of Potter County to 1) transcribe all hearings and other proceedings held in Cause No. 44,127-C, styled The State of Texas v. Edward Reveteriano that have not previously been transcribed, 2) include the transcription in a supplemental reporter's record, and 3) file the supplemental reporter's record with the clerk of this court on or before June 4, 2003. Within 30 days of the day on which the supplemental record is filed with the clerk of this court, counsel for appellant is ordered to 1) review the entire appellate record to determine the presence of arguable grounds of error and 2) file with the clerk of this court a brief addressing potential grounds of error or an Anders brief and motion to withdraw conforming with the dictates of the law, as counsel may choose based upon the exercise of his professional judgment. Lastly, we deny appellate counsel's pending motion to withdraw, at this time.

It is so ordered.

Per Curiam

Do not publish.

appellant's issues, we sustain appellant's first issue. Our disposition of issue number one is dispositive of the appeals. Accordingly, we do not consider any other issues. See Tex. R. App. P. 47.1.

We reverse the judgments and remand the cases for further proceedings. Tex. R. App. P. 43.2.

Phil Johnson

Chief Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).