Jaffice Harris, III v. State ( 2010 )

NO. 07-09-0258-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 20, 2010
______________________________
JAFFICE HARRIS, III, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-422,087; HONORABLE BRAD UNDERWOOD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Appellant, Jaffice Harris, III, pled guilty in open court to burglary of a habitation with
intent to commit aggravated assault with a deadly weapon1 and was sentenced by a jury
to twenty-five years confinement. Appellant's counsel has filed an Anders brief and a
motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
1
See Tex. Penal Code Ann. § 30.03(d) (Vernon 2003).
493 (1967). For the reasons expressed herein, we abate and remand this cause to the
trial court for appointment of new counsel.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record and, in his opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling
authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and
(3) informing him of his right to file a pro se petition for discretionary review. In re
Schulman, 252 S.W.3d at 408.2
When faced with an Anders brief, an appellate court has a duty to conduct a full
examination of the proceeding, and if its independent inquiry reveals a non-frivolous or
arguable ground for appeal, it must abate the proceeding and remand the case to the trial
court so that new counsel can be appointed to brief the issues. See Penson v. Ohio, 488
2
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of his right to file a pro se petition for discretionary review. In re Schulman, at 408 n.22 & at
411 n.35.
2
U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824
(Tex.Crim.App. 2005).
In this case, the Clerk's Record reflects a judgment signed July 6, 2009. Under
the judgment's heading "special findings or orders," the trial court orders Appellant to pay
court-appointed attorney fees of $5,467.50 and court costs of $615.00. A review of the
Reporter's Record does not reveal any evidence pertaining to Appellant's ability to
reimburse attorney's fees, nor does it contain any determination by the court of
Appellant's ability to pay those fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g)
(Vernon Supp. 2009). Rather, the record shows Appellant was appointed trial counsel
and, later on July 24, 2009, appellate counsel was appointed due to his indigency.
A judgment ordering the reimbursement of court-appointed attorney's fees without
sufficient evidence of a defendant's ability to pay can constitute error cognizable on
appeal. See Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010).
Based upon this record, we find at least two arguable grounds for appeal exist:
(1) Does an order for the reimbursement of attorney's fees have to be included
in the oral pronouncement of sentence as a precondition to its inclusion in
the trial court's written judgment? See Weir v. State, 278 S.W.3d 364, 366
(Tex.Crim.App. 2009).
(2) Was the evidence legally sufficient to show that Appellant had financial
resources that would enable him to offset, in part or in whole the costs of
legal services provided? See Mayer v. State, 309 S.W.3d 552
(Tex.Crim.App. 2010).
3
Having concluded that arguable grounds for appeal exist, we grant Appellant=s
counsel=s motion to withdraw, abate this proceeding, and remand this cause to the trial
court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at 827; Stafford v.
State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).
We direct the trial court to appoint new counsel to represent Appellant on appeal
by November 1, 2010. The trial court shall furnish the name, address, telephone
number, and state bar number of new counsel to the Clerk of this Court immediately after
the appointment of counsel is ordered. Finally, the trial court shall cause its order
appointing counsel to be included in a supplemental clerk=s record which shall be filed
with the Clerk of this Court by November 12, 2010. Appellant=s brief shall address the
issues we have identified, together with any other arguable issues identified by counsel,
and shall be due forty-five 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.
It is so ordered.
Per Curiam
Do not publish.
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