David Ignacio Cristan v. the State of Texas ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: David Ignacio Cristan v. The State of Texas
Appellate case number: 01-21-00647-CR
Trial court case number: 19-CR-2275
Trial court: 56th District Court of Galveston County
After a jury trial, Appellant David Ignacio Cristan was convicted of the offense of sexual
assault of a child and was sentenced to twenty years in the Institutional Division of the Texas
Department of Criminal Justice. Appellant filed a timely notice of appeal.
Appellant’s appointed counsel filed a motion to withdraw together with an Anders brief
in which he asserts that there are no valid grounds for appeal and that the appeal is frivolous.
Appellant requested access to the record but did not file a response to the brief. The State
waived its opportunity to file a brief.
To comply with Anders v. California, appointed counsel must file a brief reflecting that
the attorney adequately researched the case before requesting to withdraw from further
representation. See Anders v. California, 386 U.S. 738, 744 (1967); In re Schulman, 252 S.W.3d
403, 407 (Tex. Crim. App. 2008). An Anders brief is appropriate only when appointed counsel
has “mastered the record and the evidence” and determined that no sustainable grounds for
appeal exist. Banks v. State, 341 S.W.3d 403, 407 (Tex. App.—Houston [1st Dist.] 2009, no
pet.). The Anders brief informs the defendant, sets out a road map for the court of appeals, and
provides record citations to assist the appellant if he wishes to exercise his right to file a pro se
response. See Hung Le v. State, 510 S.W.3d 96, 97–98 (Tex. App.—Houston [1st Dist.] 2016).
The brief appointed counsel filed fails to satisfy this standard. The record reflects that
Appellant was interviewed in the hospital by two police officers and the interview was captured
on video, which was admitted as State’s Exhibit 1 during trial without objection. A review of the
video reveals that Appellant was not read his Miranda1 rights before the interview began and
was not told he could end the interview at any time. During trial, one of the interviewing officers
testified that Appellant was not read his Miranda rights because “he wasn’t under arrest.” But
see In re J.T.M., 441 S.W.3d at 462 (noting four situations identified by Texas courts that may
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
constitute custody, including “if there is probable cause to arrest and law enforcement officials
do not tell the suspect that he may leave.”)2
The Anders brief contains no discussion as to whether Appellant should have been read
his Miranda rights before the interview began, whether Appellant could reasonably have
believed he was in custody during the interview, and whether Appellant’s counsel should have
objected to the admissibility of the videotaped interview. Because the Anders brief does not
demonstrate a conscientious examination of the record or investigation of the case on this issue
“to professionally evaluate whether there are any nonfrivolous appellate issues,” we determine
that the brief filed by counsel contains a deficiency of form for which the appropriate remedy is
rebriefing. Hung Le, 510 S.W.3d at 100.
We strike the Anders brief and order appointed counsel to file a new brief that also
addresses whether Appellant should have been read his Miranda rights before the hospital
interview began, whether Appellant could reasonably have believed he was in custody during the
interview, and whether Appellant’s counsel should have objected to the admissibility of the
videotaped interview. The new brief shall be filed within 30 days of the date of this order.
It is so ORDERED.
Judge’s signature: /s/ Veronica Rivas-Molloy
Acting individually
Date: October 11, 2022
2
Custody is only established in this situation if “the officer manifested his knowledge of probable
cause to the suspect by word or deed” and “other circumstances of the interview, such as duration
or factors of the exercise of police control over a suspect, would leave a reasonable person to
believe that he is under restraint to the degree associated with an arrest.” In re J.T.M., 441
S.W.3d 455, 462 (Tex. App.—El Paso 2014, no pet.) (citations omitted).