Andrew Timothy Martinez v. the State of Texas ( 2022 )

Order filed February 3, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00051-CR
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ANDREW TIMOTHY MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 14498-D
ORDER
A jury convicted Appellant, Andrew Timothy Martinez, of the offense of
possession of more than one gram but less than four grams of methamphetamine.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.115(c), .102(6) (West Supp. 2021).
Based on Appellant’s pleas of true, the jury found both enhancement allegations to
be true and assessed Appellant’s punishment at confinement for a term of forty-
seven and one-half years. We abate the appeal and remand this cause to the trial
court for appointment of new appellate counsel.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel asserts that he has thoroughly
examined the record and applicable law and that he has concluded that the appeal is
frivolous. Counsel has provided Appellant with a copy of the brief and advised
Appellant of his right to review the record, file a pro se response to counsel’s brief,
and if necessary, file a pro se petition for discretionary review. It appears that court-
appointed counsel has attempted to comply with the requirements of Anders v.
California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v.
State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Appellant has not filed a pro se
response to counsel’s brief.
In addressing an Anders brief, a court of appeals may determine (1) that the
appeal is wholly frivolous and issue an opinion explaining that it has reviewed the
record and found no reversible error or (2) that arguable grounds for appeal exist and
remand the cause to the trial court so that new counsel may be appointed to brief the
issues. Schulman, 252 S.W.3d at 410–11; Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005). Following the procedures set out in Anders, Kelly, and
Schulman, we have conducted an independent review of the record, and we disagree
with court-appointed counsel’s conclusion that the appeal is wholly frivolous.
In this regard, we note that the punishment-phase jury charge contains an
instruction regarding the existence of good conduct time and its application to
Appellant. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(b) (West Supp. 2021).
In 2019, the Texas Legislature amended Article 37.07, Section 4 of the Texas Code
of Criminal Procedure. See Act of May 15, 2019, 86th Leg., R.S., ch. 260, § 1 (H.B.
1279) (codified at TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4). The amendments
apply to any defendant sentenced after September 1, 2019, regardless of when the
offense was committed. Id. §§ 2–3. Although Appellant was sentenced after
September 1, 2019, the punishment-phase charge contains the jury instruction
applicable to defendants who were sentenced prior to September 1, 2019. See Act
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of May 26, 2015, 84th Leg., ch. 770, § 2.08, 2015 Tex. Gen. Laws 2321, 2367–68.
Further, the instruction did not contain certain language required by both the
superseded and the current statutes. See Luquis v. State, 72 S.W.3d 355, 363 (Tex.
Crim. App. 2002) (holding that a trial court is required to instruct the jury in the
precise wording required by Article 37.07).
We grant counsel’s motion to withdraw, abate this appeal, and remand this
cause to the trial court for the appointment of new appellate counsel. See Bledsoe,
178 S.W.3d at 826–27. We direct the trial court to appoint new counsel to represent
Appellant on appeal. The trial court shall furnish the name, address, telephone
number, and state bar number for new counsel in its order appointing new counsel.
The order shall be included in a supplemental clerk’s record, which shall be filed
with the clerk of this court by March 7, 2022.
Newly appointed counsel shall file a brief that conforms to the Texas Rules
of Appellate Procedure and that addresses any issue that counsel deems arguable.
Appellant’s brief shall be due thirty 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. By this order, we express no opinion
on the merits of any issues or potential issues that the record may present.
The motion to withdraw is granted, the appeal is abated, and the cause is
remanded to the trial court in accordance with this order.
PER CURIAM
February 3, 2022
Do not publish. See TEX. R. APP. P. 47.2(b)
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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