Hudson Pharris v. State ( 2011 )

NO. 07-11-0029-CR
NO. 07-11-0030-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 20, 2011
HUDSON LEE PHARRIES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE 20TH DISTRICT COURT OF MILAM COUNTY;
NOS. CR22,778 & CR22,781; HONORABLE ED MAGRE, PRESIDING
Order of Abatement
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Hudson Lee Pharries (appellant) appeals his convictions for aggravated sexual
assault of a child and indecency with a child by contact. Appellant plead guilty to both
indictments without an agreement as to punishment. His court-appointed counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967), therein asserting that a review of the record shows no reversible error. The
appellate record in this cause, however, is missing a portion of the reporter's record and
clerk’s record. Specifically, the portion missing in the reporter’s record is the original
guilty plea hearing held on September 13, 2010, and the clerk’s record does not contain
the report from Dr. Pugliese. The issue, therefore, is whether court-appointed counsel
may file an Anders brief when the appellate record being reviewed is incomplete. For
the reasons set forth below, we conclude he cannot.
The purpose of an Anders brief is to support counsel's motion to withdraw.
Through it, counsel effectively illustrates to the court 1) that he performed a
conscientious examination of the record to discover potential error and 2) that the
appeal is frivolous. Marsh v. State, 959 S.W.2d 224, 225 (Tex. App.–Dallas 1996, no
pet.); Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App.–Dallas 1995, no pet.). Without a
complete record, however, it cannot be said that counsel conscientiously searched for
potential error and, as a result of that search, legitimately concluded that the appeal was
frivolous. See Mason v. State, 65 S.W.3d 120 (Tex. App.–Amarillo 2001, no pet.)
(striking the Anders brief because the portion of the record containing the voir dire was
missing); see also Marsh v. State, 959 S.W.2d at 225-26 (striking the Anders brief and
remanding for the appointment of new counsel because the record was incomplete).
Simply put, one cannot say that there is no arguable merit to an appeal based upon the
review of an incomplete record.
In the case at bar, appellate counsel represented in his Anders brief that the
psychological evaluation was not part of the record even though the State requested
that the trial court take judicial notice of same. Because the original guilty plea hearing
conducted on September 13, 2010, was not transcribed and is missing from the
appellate record, and appellant’s psychological evaluation is missing as well, we strike
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the Anders brief filed by appellant's counsel. We further order the official court reporter
for the 20th Judicial District Court of Milam County to 1) transcribe all hearings and
other proceedings held in Cause Nos. CR22,778 and CR22,781, styled The State of
Texas v. Hudson Lee Pharries that have not previously been transcribed, 2) include the
transcription in a supplemental reporter's record, and 3) file the supplemental reporter's
record with the clerk of this court on or before August 19, 2011. Furthermore, we order
the district clerk for Milam County to include in a supplemental clerk’s record any and all
psychological evaluations (including any performed by Dr. Pugliese of appellant) of
which the trial court took judicial notice and file same with the clerk of this court on or
before August 19, 2011. Within thirty days of the day on which the supplemental
records are filed with the clerk of this court, counsel for appellant is ordered to 1) review
the entire appellate record to determine the presence of arguable grounds of error and
2) file with the clerk of this court a brief addressing potential grounds of error or an
Anders brief and motion to withdraw conforming with the dictates of the law, as counsel
may choose based upon the exercise of his professional judgment. Lastly, we deny
appellate counsel's pending motion to withdraw, at this time.
It is so ordered.
Per Curiam
Do not publish.
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