James Daniel Harris v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00091-CR
JAMES DANIEL HARRIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1 AND ORDER OF ABATEMENT
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A jury found Appellant James Daniel Harris guilty of possession of less
than 200 but more than 4 grams of methamphetamine. Thereafter, Appellant
pleaded true to an enhancement allegation, and the jury assessed his
punishment at life confinement. Appellant filed a notice of appeal and a motion
for new trial, arguing that he received ineffective assistance of counsel and that
1
See Tex. R. App. P. 47.4.
his statement was unlawfully coerced. After holding a hearing, the trial court
denied the motion for new trial.
Appellant’s appointed appellate counsel has filed a motion to withdraw,
accompanied by a thorough brief in support of that motion. In his cogent brief,
counsel states that in his professional opinion, this appeal is frivolous and without
merit. Counsel’s brief and motion meet the requirements of Anders v. California,
386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of
the record demonstrating why counsel concluded there are no arguable grounds
for relief. Appellant filed a brief and a supplemental brief in response to appellate
counsel’s evaluation, raising nine points that he asserts “should warrant further
development by another counsel on appeal.” The State filed a letter brief stating
that it agreed with appellate counsel’s determination that the appeal is wholly
frivolous.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the grounds that an appeal is frivolous and fulfills the requirements of Anders, we
have a supervisory obligation to undertake an examination of the proceedings.
See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Banks v.
State, 341 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Mays
v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this
evaluation, we consider the record, the arguments raised in the Anders brief, and
issues Appellant points out in his pro se briefs. See United States v. Wagner,
158 F.3d 901, 902 (5th Cir. 1998); In re Schulman, 252 S.W.3d 403, 409 (Tex.
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Crim. App. 2008). We are not to address the merits of the issues Appellant
raises in his pro se briefing because to do so would deprive Appellant “of the
meaningful assistance of counsel.” Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005). If we determine that arguable grounds for appeal exist, we
must abate the appeal and remand the case to the trial court for appointment of
new appellate counsel. See Schulman, 252 S.W.3d at 409; see also Smith v.
Robbins, 528 U.S. 259, 279, 120 S. Ct. 746, 761 (2000). But if we determine that
the appeal is wholly frivolous, we should dismiss the appeal. See Schulman, 252
S.W.3d at 409; see also Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Only after
our independent review and after our decision between abatement or dismissal is
made may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488
U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
After our independent review, we conclude that there are “arguable”
appellate issues in this case. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see
Smith, 528 U.S. at 285, 120 S. Ct. at 764. For instance, the trial court denied
Appellant’s request to have new trial counsel appointed even though Appellant
had stated that his appointed trial counsel, Price Smith, had failed to properly
communicate the charge and punishment range Appellant faced. Smith admitted
to the trial court that the attorney-client relationship was “broken” and that
Appellant had received “some . . . bad information” (although not from Smith)
regarding the possible punishment range he faced. Additionally, the State
contends that Appellant’s arguments that he received ineffective assistance of
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counsel cannot be addressed on direct appeal. However, the trial court held a
hearing on Appellant’s motion for new trial and specifically received evidence on
whether Smith was effective. Indeed, it appears Smith was unaware of or
unwilling to pursue the motion to suppress that Appellant’s retained counsel had
filed. 2 While we acknowledge that the trial court probably resolved these
disputes in testimony by making credibility determinations, this record evidence
arguably could provide grounds to pursue a claim of ineffective assistance of trial
counsel. It further could be argued that the evidence was insufficient to link
Appellant to the contraband. 3 See Poindexter v. State, 153 S.W.3d 402, 405–06
(Tex. Crim. App. 2005). Finally, we note that appellate counsel did not have the
entire record when he filed his Anders brief. Specifically, we abated this appeal
to determine the completeness of the reporter’s record regarding evidence the
State used during punishment. The trial court held a hearing on the issue, but
appellate counsel did not have the benefit of this record on abatement in making
his determination of the frivolity of the appeal. This abatement record arguably
could prove fruitful for appeal purposes. See Wilson v. State, 366 S.W.3d 335,
340 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“Again, we need not say, with
2
Appellant retained trial counsel who was allowed to withdraw after
Appellant refused a plea-bargain agreement and failed to pay counsel for the
costs of proceeding to a jury trial.
3
Although Appellant gave a statement admitting possession of the
methamphetamine, he asserted in his motion for new trial that the statement was
illegally coerced.
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certainty, that any complaint arising from the fact that the reporter’s record has
been lost or destroyed will prove to be meritorious, but only that such an issue
warrants further development by counsel on appeal.”); cf. Mason v. State, 65
S.W.3d 120, 120 (Tex. App.—Amarillo 2001, no pet.) (denying motion to
withdraw and striking Anders brief when counsel did not have reporter’s record
from voir dire because “one cannot say that there is no arguable merit to an
appeal based on the review of an incomplete record”). 4
We stress that this is not an exhaustive list of arguable issues that could
be raised on appeal and, further, that we have not determined that any of these
arguments have merit. We conclude that appellate counsel has met his
professional obligations under Anders and grant his motion to withdraw. But
based on the presence of arguable appellate issues, we abate the appeal and
remand the case to the trial court to appoint a new appellate attorney with
directions to file a brief on the merits. See Schulman, 252 S.W.3d at 409. The
trial court shall make the appointment and ensure that a supplemental record is
filed in this court no later than 28 days from the date of this order. Once the
supplemental record is filed in this court, we will automatically reinstate the
appeal and set a new briefing schedule.
4
Because the record on abatement was made after appellate counsel filed
his Anders brief, we cannot say that appellate counsel failed to diligently search
the record. Thus, denying the motion to withdraw would not be appropriate as it
was in Mason.
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PER CURIAM
PANEL: GABRIEL, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 30, 2013
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