Joel Luna v. the State of Texas ( 2022 )

Order filed October 20, 2022
In The
Eleventh Court of Appeals
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Nos. 11-22-00039-CR & 11-22-00040-CR
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JOEL LUNA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause Nos. A-18-1666-CR & A-18-1665-CR
ORDER
The jury convicted Appellant, Joel Luna, of two offenses: (1) aggravated
assault with a deadly weapon, which caused serious bodily injury to a family
member—Appellant’s wife, and (2) capital murder—for the death of Appellant’s
wife’s unborn child. See TEX. PENAL CODE ANN. §§ 22.02(b)(1), 19.03(a)(8) (West
Supp. 2022). For the aggravated assault, the jury assessed Appellant’s punishment
at imprisonment for thirty-six years and a fine of $10,000. For the capital murder,
the trial court assessed Appellant’s punishment at imprisonment for life without
parole. See id. § 12.31(a)(2) (West 2019). We abate these appeals.
In each appeal, Appellant’s court-appointed counsel has filed a motion to
withdraw. Each motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that the
appeal is frivolous and without merit. Counsel has provided Appellant with a copy
of the briefs, a copy of the motions to withdraw, and a copy of the clerk’s records
and the reporter’s record. Counsel advised Appellant of his right to review the record
in each case and to file a response to counsel’s brief. Counsel also advised Appellant
of his right to file a petition for discretionary review with the clerk of the Texas
Court of Criminal Appeals seeking review by that court. See TEX. R. APP. P. 68. It
appears that court-appointed counsel has attempted to comply with the requirements
of Anders v. California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex.
Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Appellant filed a short pro se response to counsel’s Anders brief in each
appeal. In addressing an Anders brief and a pro se response, a court of appeals may
only determine (1) that the appeal is wholly frivolous and issue an opinion
explaining that it has reviewed the record and finds no reversible error or (2) that
arguable grounds for appeal exist and remand the cause to the trial court so that new
counsel may be appointed to brief the issues. Schulman, 252 S.W.3d at 409;
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record in each appeal, and we disagree with court-
appointed counsel’s conclusion that the appeals are frivolous. We are of the opinion
that there are arguable grounds for an appeal. In this regard, an appeal arising from
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a contested trial on guilt/innocence is not readily amenable to disposition under
Anders.
Accordingly, we grant counsel’s motions to withdraw, abate these
proceedings, and remand the causes to the trial court for the appointment of new
appellate counsel. See Bledsoe, 178 S.W.3d at 826–27. We direct the trial court to
appoint new counsel to represent Appellant in these appeals. The trial court shall
furnish the name, address, telephone number, and state bar number of new counsel
in its order appointing new counsel. The order in each cause shall be included in a
supplemental clerk’s record, which shall be filed with the clerk of this court on or
before November 4, 2022. Appellant’s briefs are due to be filed in this court thirty
days from the date of the trial court’s appointment of new counsel. All other
appellate deadlines shall be in accordance with the Texas Rules of Appellate
Procedure.
Counsel’s motions to withdraw are granted; the appeals are abated; and the
causes are remanded to the trial court in accordance with this order.
PER CURIAM
October 20, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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