Robert Emmanuel Digman v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00114-CR
ROBERT EMMANUEL DIGMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 24,202-C, Honorable Abe Lopez, Presiding
May 29, 2014
ON ABATEMENT AND REMAND
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Robert Emmanuel Digman appeals his conviction for two counts of
indecency with a child by exposure1 and resulting sentences on each count of five
years’ confinement in prison. Appellant’s court-appointed appellate counsel has filed a
motion to withdraw from representation supported by an Anders2 brief. By his brief,
1
TEX. PENAL CODE ANN. § 21.11(a)(2)(A),(B) (West 2011).
2
Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967).
counsel certifies that in his professional opinion the appeal “is without merit and
frivolous because the record reflects no reversible error.” On receipt of a court-
appointed attorney’s motion to withdraw supported by an Anders brief, we
independently review the entire record to assess the accuracy of counsel’s conclusions
and to uncover any arguable issues pursuant to Stafford v. State, 813 S.W.2d 503 (Tex.
Crim. App. 1991) and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008). In his
Anders brief, counsel discusses four potential issues but concludes each lacks merit.
Counsel’s brief does not mention the law’s requirement that the jury be
unanimous in its verdicts. Count two of the indictment contained two paragraphs, one
alleging appellant caused exposure of the genitals of a child younger than age
seventeen and the other alleging appellant exposed his genitals to a child younger than
age seventeen. In the jury charge, a single application paragraph pertaining to count
two of the indictment disjunctively submitted the questions whether appellant caused
exposure of the genitals of a child and whether appellant exposed his genitals to a child.
A single verdict form asked whether appellant was guilty or not of indecency by
exposure as alleged in count two of the indictment.
We conclude the record presents an arguable ground for appeal concerning
possible jury charge error permitting appellant’s conviction under count two by less than
the unanimous verdict of the jury. If such error occurred, the question becomes whether
as a result appellant sustained egregious harm.
We therefore grant counsel’s motion to withdraw. The appeal is abated and
remanded to the trial court for appointment of new counsel. Newly-appointed counsel
2
shall prepare and file an appellant’s brief addressing the arguable issue we have
identified as well as any other ground that might support reversal or modification of the
judgment.
The trial court shall include in its order appointing counsel the name, address,
telephone number, and state bar number of the new attorney and cause its order
appointing new counsel to be included in a supplemental clerk’s record which shall be
filed with the Clerk of this Court by June 30, 2014. Appellant's brief shall be due thirty
days from the date of the trial court’s appointment of new counsel.
It is so ordered.
Per Curiam
Do not publish.
3