Luis Ruiz Sierra v. State ( 2015 )

Order issued May 28, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00493-CR
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LUIS RUIZ SIERRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1396147
ABATEMENT ORDER
Appellant, Luis Ruiz Sierra, pleaded guilty to the felony offense of burglary
of a habitation with intent to commit a felony.1 The trial court found him guilty and
1
See TEX. PENAL CODE ANN. § 30.02(a)(2) (West 2011) (“A person commits
an offense if, without the effective consent of the owner, the person . . .
assessed punishment at thirty years in prison. Appellant’s court-appointed counsel
on appeal has filed a motion to withdraw from representing appellant and an
Anders brief in which he opines that no valid grounds for appeal exist and that
appellant’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S.
Ct. 1396, 1400 (1967). Appellant filed a pro se response in which he complains of
ineffective assistance of counsel and requests a reduction in his sentence. The State
has waived its opportunity to file an appellee’s brief in response to the brief
counsel filed on appellant’s behalf.
When this court receives an Anders brief from an appellant’=s court-
appointed attorney who asserts that no arguable grounds for appeal exist, we must
independently determine whether any arguable grounds for appeal exist by
conducting our own review of the entire record. Id. (emphasizing that reviewing
court—and not counsel—determines, after full examination of proceedings,
whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991). An arguable ground for appeal is a ground that is not frivolous;
it must be an argument that could “conceivably persuade the court.” See In re
Schulman, 252 S.W.3d 403, 407 n.12 (Tex. Crim. App. 2008) (quoting McCoy v.
Court of Appeals of Wisc., Dist. I, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901
remains concealed, with intent to commit a felony, theft, or an assault, in a
building or habitation . . . .”).
2
(1988)). In conducting our review, we consider any pro se response that the
appellant files in response to his appointed counsel’s Anders brief. See Garner v.
State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009).
Our role in this Anders appeal is limited to determining whether arguable
grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005). If we determine that arguable grounds for appeal exist, we do not rule
on the ultimate merits of any arguable issues. Id. at 827. Instead, we must abate the
appeal and remand the case. Id. On remand, the trial court must appoint new
counsel to represent appellant, because appellant is entitled to have new counsel
address the merits of the issues raised. Id. “Only after the issues have been briefed
by new counsel may [we] address the merits of the issues raised.” Id.
In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and
Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record, appointed counsel’s
Anders brief, and appellant’s pro se response to that brief. The record on appeal
reflects at least one arguable ground for appeal: whether appellant’s 30-year
sentence exceeds the statutory maximum for the second-degree felony offense of
burglary–for which he was indicted and to which he pleaded guilty–and was
therefore illegal and void.2
2
See TEX. PENAL CODE ANN. § 12.32 (West 2011) (punishment range for first-
degree felony offenses); id. § 12.33 (West 2011) (punishment range for
second-degree felony offenses); id. § 30.02(c)(2) (specifying that burglary is
3
Accordingly, we strike the brief filed by appellant’s current appointed
counsel, grant counsel’s motion to withdraw, and abate this appeal and remand the
cause for the trial court to appoint new appellate counsel to review the existing
record and to present any grounds, including the ground described above, that
might support the appeal. We further order that a supplemental clerk’s record be
filed with this court containing the name, address, and state bar number of the new
counsel appointed.
It is so ordered.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
a second-degree felony offense when committed in a habitation); id.
§ 30.02(d) (enhancing burglary of habitation to first-degree felony only if
any party to burglary entered the habitation with intent to commit a felony
other than theft, or committed or attempted to commit a felony other than
theft); see also Mizell v. State, 119 S.W.3d 804, 805, 806–07 (Tex. Crim.
App. 2003) (“A sentence that is outside the maximum or minimum range of
punishment is unauthorized by law and therefore illegal.”).
4