Andres Gilberto Flores v. State ( 2012 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Andres Gilberto Flores v. The State of Texas
Appellate case number: 01-09-01125-CR
Trial court case number: 51481
Trial court: 268th District Court of Fort Bend County
On January 23, 2012, the Court abated the above-referenced appeal and remanded the
case to the trial court for findings and recommendations on whether appellant still wishes to
pursue this appeal and whether good cause exists to remove appellant’s current counsel, Kevin
Hall.
The trial court held a hearing on this Court’s abatement order on February 13, 2012. The
reporter’s record of the hearing was filed with this Court on February 15, 2012. Appellant was
not transported from prison for the hearing and was not present via closed-circuit video
teleconferencing. Nevertheless, the trial court relied on its findings from an abatement hearing
held on December 17, 2010 to find that appellant wishes to pursue this appeal. And, based on
counsel’s representations that he was not aware that he represented appellant until he received
notice of the February 13, 2012 abatement hearing1 and that he could handle this matter “within
a couple of days,” the trial court provided counsel with a deadline for filing a brief of two weeks
from the date of the hearing.
On February 24, 2012, Mr. Hall moved to withdraw from the appeal and filed a brief
concluding that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008).
We find the brief filed on appellant’s behalf deficient. The record on appeal includes an
82-page transcript of the sentencing hearing. Nevertheless, the brief provides no discussion of
1 Although counsel was appointed to represent appellant on December 17, 2010 and was
sent an e-mail notifying him of the appointment that same day, he stated to the trial court
that he did not recall receiving the e-mail and that he did not have a file for appellant.
the evidence. See High v. State, 573 S.W.2d 807, 812, 813 (Tex. Crim. App. 1978); Williams v.
State, 976 S.W.2d 871, 873 (Tex. App.—Corpus Christi 1998, order); Jeffrey v. State, 903
S.W.2d 776, 779 (Tex. App.—Dallas 1995, no pet.).
Further, counsel’s entire argument consists of one page and argues solely that appellant
waived his right of appeal. The brief “contains no analysis or explanation of the validity of the
indictment, the sufficiency of the evidence, . . . the validity of the punishment assessed, or
whether [appellant] received effective assistance of counsel.” Williams, 976 S.W.2d at 873.
And counsel’s conclusion on the sole issue addressed—that appellant waived the right to
appeal—is incorrect. Although appellant signed a stipulation that contained a waiver of the right
to appeal and a document entitled “Defendant’s Waiver of Right to Appeal,” both waivers are
conditioned on the trial court’s assessment of punishment that does not exceed the punishment
recommended by the State and agreed to by appellant. But the State did not make a punishment
recommendation and appellant did not agree to any recommended punishment, so the waivers
are inapplicable. Further, because both waivers were executed prior to the assessment of
punishment and neither waiver was made in exchange for any consideration from the State, they
were not valid or effective. See Ex parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006);
Ex parte Townsend, 538 S.W.2d 419, 420 (Tex. Crim. App. 1976); see also Ex parte Broadway,
301 S.W.3d 694, 699 (Tex. Crim. App. 2009) (holding that waiver of right to appeal is valid if
made in exchange for consideration from State).
By failing to provide a professional evaluation of the record, counsel’s brief provides no
aid to appellant or to this Court, and it fails to meet the requirements of Anders. See McCoy v.
Court of Appeals of Wisc., Dist. 1, 486 U.S. 429, 442, 108 S. Ct. 1895, 1903–04 (1988)
(requiring appellate court, in addition to determining whether counsel correctly determined that
appeal is frivolous, to “satisfy itself that the attorney has provided the client with a diligent and
thorough search of the record for any arguable claim that might support the client’s appeal);
Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400 (requiring counsel to file brief that assists client by
evaluating all potential grounds for appeal and aids Court in evaluating record); High, 573
S.W.2d at 812 (requiring “brief of counsel to contain a professional evaluation of the record
demonstrating why, in effect, there are no arguable grounds to be advanced”).
Ordinarily, this Court would strike the defective brief and afford counsel an opportunity
to rebrief to address the deficiencies in the brief. See Stafford v. State, 813 S.W.2d 503, 510
(Tex. Crim. App. 1991); Banks v. State, 341 S.W.3d 428, 432 (Tex. App.—Houston [1st Dist.]
2009, order), disp. on merits, No. 01-08-00286-CR, 2010 WL 1053218 (Tex. App.—Houston
[1st Dist.] March 11, 2010, no pet.). In this case, however, if counsel is afforded an opportunity
to rebrief, he will have been given more than 16 months to file a brief.2
2 Counsel’s brief was originally due on March 28, 2011. On June 27, 2011, the Clerk of
the Court notified counsel that a brief had not yet been filed and required a response
Absent extraordinary circumstances, this Court does not ordinarily grant extensions of
time beyond 90 days to file a brief. Furthermore, Texas Rule of Appellate Procedure 38.8(b)(4)
authorizes us to “act appropriately to ensure that the appellant’s rights are protected.” TEX. R.
APP. P. 38.8(b)(4). Therefore, to protect appellant’s rights and to avoid any further delay in this
cause, we will strike appellate counsel’s Anders brief, but we will not require him to file a new
brief.
Accordingly, we strike appellate counsel’s Anders brief and grant his motion to
withdraw. Cf. Williams, 976 S.W.2d at 873 (striking counsel’s brief and removing him from the
appeal); Marsh v. State, 959 S.W.2d 224, 226 (Tex. App.—Dallas 1996, order), disp. on merits,
No. 05-92-00482-CR, 1998 WL 234202 (Tex. App.—Dallas May 12, 1998, no pet.) (same). We
abate this appeal and remand the cause for the trial court to appoint new appellate counsel. 3 The
trial court is ordered to inform this Court in writing of the identity of new counsel and the date of
appointment within twenty days of the date of this order. Counsel’s brief will be due thirty days
after the trial court makes its appointment. This appeal will be reinstated after the notice of
appointment is received by this Court.
It is so ORDERED.
Judge’s signature: /s/ Justice Terry Jennings
 Acting individually  Acting for the Court
Date: July 5, 2012
within 10 days. Counsel did not respond. As a result, we abated the case on January 23,
2012, pursuant to Texas Rule of Appellate Procedure 38.8(b). Counsel filed his brief on
February 24, 2012, which was approximately eleven months after the original due date.
3 New appellate counsel should investigate the record and file a new brief for appellant.
Counsel’s brief may either present an argument on the merits or a proper Anders brief
and motion to withdraw, as determined by counsel after a conscientious examination of
the record.