Edwin Andrew DeGraff v. State ( 2009 )

NO. 07-08-0175-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 15, 2009

______________________________

EDWIN ANDREW DEGRAFF,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 64^TH DISTRICT COURT OF HALE COUNTY;

NO. B16020-0505; HON. ROBERT W. KINKAID, JR., PRESIDING

_______________________________

Order of Abatement and Remand for Appointment of Counsel

________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          After a jury trial, Edwin Andrew DeGraff (appellant) was convicted of aggravated sexual assault of a child. Punishment was assessed by the jury at fifty years in the Texas Department of Criminal Justice Institutional Division. Appellant timely filed his notice of appeal. Thereafter, his appointed counsel filed a motion to withdraw, together with an Anders brief, wherein he certified that, after diligently searching the record, he found the appeal without merit. Along with his brief, he also filed a copy of a letter he sent to appellant informing him of his conclusion and of appellant’s right to appeal pro se. This court notified appellant of his right to file his own brief or response, and appellant did so.

          In an Anders situation, a criminal defense attorney must zealously represent the interests of his client on appeal. In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). If the appointed attorney finds the "case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." Id. The brief filed in an Anders situation is “an assurance to the appellate court that the attorney has indeed made a thorough and conscientious examination of the record, has provided the appellate court with the appropriate facts of the case and its procedural history, and has pointed out any potentially plausible points of error.” Id.

          Despite counsel’s efforts and disclosures, we cannot simply accept them and also conclude that the appeal is baseless. Instead, we too must peruse the record to determine if matter exists that merits attention. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have done that here and conclude that such matters do exist.

          Indeed, in analyzing the record as part of his Anders obligation, appellate counsel did not mention various circumstances of interest. They include the three mistrials granted by the trial court, the denial of appellant’s motion to transfer venue (filed after the third mistrial) because he allegedly could not receive a fair trial, the denial of his motion to suppress that placed into question the voluntariness of appellant’s statement, or the difference between the accusations in the indictments and those in the jury charge involving the manner and means of the assaults. And, while we make no comment upon the ultimate merit of appellant’s appeal, we find that further attention to it is needed.

          Therefore, appellate counsel’s representation about the appeal being meritless is rejected at this time. Instead, we abate the matter and remand the cause to the 64^th District Court of Hale County, Texas. See Stafford v. State, 813 S.W.2d at 511. Upon remand, the trial court is ordered to appoint a new attorney to represent appellant in his appeal. Next, the trial court shall cause the name, address, and state bar number of the newly appointed counsel to be included in a supplemental transcript. That transcript shall be filed by the trial court with the clerk of this court on or before April 30, 2009. Finally, because the opinion expressed by appellant’s current attorney could be viewed as creating a conflict of interest, we grant his motion to withdraw.

          It is so ordered.

                                                                           Per Curiam

Do not publish.        

est of justice and the public to require a father to support his children to the best of his ability. Indeed, it is also in the interest of the defendant that he do so to protect himself from being guilty of contempt of court by failing to obey court-ordered child support payments to eradicate unexcused delinquencies in making such payments. That being so, we cannot say that the trial court abused its discretion in imposing the payment of delinquent child support as a condition of allowing appellant to serve his sentence without actually being confined in a penal institution. Appellant's second and third points are overruled.

In summary, all of appellant's points are overruled and the judgment of the trial court is affirmed.

John T. Boyd

Chief Justice

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1. Later references to rule numbers are to those Rules of Evidence, unless otherwise specifically noted.