Anthony Whitmill v. State ( 2003 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-02-354 CR ____________________

ANTHONY WHITMILL, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 159th District Court Angelina County, Texas Trial Cause No. 22941

---

MEMORANDUM OPINION

A jury convicted Anthony Whitmill of robbery and sentenced him to eighteen years' confinement in the Texas Department of Criminal Justice, Institutional Division. The jury further assessed a fine of $2,000.

On appeal, Whitmill's counsel has filed an Anders ⁽¹⁾ brief. Subsequently, Whitmill filed a pro se brief raising seven points of error. The State filed a brief in reply.

Appellate counsel only identifies three issues: factual insufficiency of the evidence, the exclusion of a video tape sought to be admitted by the defense, and exclusion of certain testimony. In reviewing the record, we have found that counsel on appeal failed to discuss an arguable issue raised by Whitmill's pro se brief. See Coronado v. State, 996 S.W.2d 283, 285-87 (Tex. App.--Waco 1999, no pet.). Namely, counsel did not address the failure of the trial court to give a reasonable-doubt instruction in connection with the proof of extraneous offenses in the punishment charge. See Ellison v. State, 97 S.W.3d 698 (Tex. App.--Texarkana 2003, no pet.); Elder v. State, 100 S.W.3d 32 (Tex. App.--Eastland 2002, pet. ref'd). Additionally, counsel's analysis under issue three fails to take into account that Rule 608 is not applicable if the contested evidence is being offered for another reason, such as to show bias or prejudice. See Moreno v. State, 22 S.W.3d 482, 485-86 (Tex. Crim. App. 1999); Carpenter v. State, 979 S.W.2d 633, 634-35 (Tex. Crim. App. 1998); Olivares v. State, 785 S.W.2d 941, 945 (Tex. App.--El Paso 1990, no pet.). Further, appellate counsel's decision to file a partial record on appeal prevents this court from reviewing the record to make an independent determination that there are no arguable grounds for appeal, in accordance with Anders. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

If an appellate court discovers an arguable point of error in a case where an Anders brief has been filed, then the court must abate the appeal and remand the case to the trial court with orders to appoint other counsel to present those and any other grounds that might support the appeal. Id. Accordingly, this appeal is abated, and the case is remanded to the trial court with instructions to appoint other counsel to present this and other grounds that might support the appeal. ⁽²⁾

ABATED AND REMANDED.

PER CURIAM

Submitted on October 14, 2003

Opinion Delivered October 22, 2003

Do not publish

Before McKeithen, C.J., Burgess, and Gaultney, JJ.

1. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

2.

Our decision should not be viewed as a determination of the merits of the issues raised by Whitmill or his counsel, or those issues mentioned in this opinion. Whitmill's new appellate counsel should personally review the record to determine what issues should be raised in this appeal.