Emily Marie Mireles v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00304-CR
EMILY MARIE MIRELES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 106th District Court
Lynn County, Texas
Trial Court No. 20-3373, Reed A. Filley, Presiding
February 23, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Emily Marie Mireles appeals the trial court’s judgment by which she was
adjudicated guilty of possession of a controlled substance (felony of the second degree),
an offense for which she had originally been placed on three years deferred adjudication
community supervision. The State moved to adjudicate guilt on several grounds. A
hearing was held, after which the trial court granted the motion, adjudicated appellant
guilty of possessing a controlled substance of more than four grams but less than 200,
and levied a twenty-year prison sentence. She appealed and received appointed
counsel. The latter filed a motion to withdraw supported by an Anders brief. 1 We grant
counsel’s motion to withdraw and affirm the judgment of the trial court.
In support of his motion to withdraw, counsel certified that he conducted a
conscientious examination of the record, and in his opinion, it reflected no arguable basis
for reversing appellant’s conviction. See Anders, 386 U.S. at 744–45; In re Schulman,
252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel explained why, under the
controlling authorities, the record supports that conclusion. He further demonstrated that
he complied with the requirements of Anders and In re Schulman by 1) providing a copy
of the brief, motion to withdraw, and appellate record to appellant, 2) notifying appellant
of her right to file a pro se response, and 3) informing appellant of her right to file a pro
se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408. By letter
dated December 27, 2023, this Court granted appellant an opportunity to exercise her
right to file a response to counsel’s motion and brief by January 26, 2024. To date,
appellant has not filed a response or otherwise communicated with the court.
We independently examined the record to determine whether there were any non-
frivolous issues supporting reversal as required by In re Schulman. We found none.
Of concern, though, is that the same attorney represented appellant throughout
the proceeding. That attorney served as counsel when appellant initially pleaded guilty
to the indictment and had the adjudication of her guilt deferred; when the State moved to
adjudicate guilt; when the trial court heard the motion, adjudicated guilt, and sentenced
appellant; and when appellant appealed therefrom. We have no blanket rule requiring
that the trial court appoint different counsel to represent an appellant on appeal than the
1 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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one appointed at trial. See Quinonez v. State, No. 07-19-00149-CR, 2020 Tex. App.
LEXIS 50, at *2 (Tex. App.—Amarillo Jan. 6, 2020, no pet.) (mem. op.) (per curiam) (and
cases cited therein). Yet, we have consistently said that the better practice is to have
different counsel. Id. If nothing else, it affords one whose liberty has be taken from him
or her the chance to have a pair of fresh eyes review the circumstances and engage in
an independent analysis. But, as said, there is no blanket rule, as yet; instead, we
proceed on a case-by-case basis as in the past. Moreover, our independent review of
the short record at bar coupled with appellant’s acknowledgements to violating one or
more terms of her community supervision leaves to conclude that the circumstances here
do not warrant an abatement for the appointment of new counsel. Nevertheless, we
again stress that the better, more confidence-inspiring practice is to appoint
counsel on appeal different from who was appointed at trial.
So, after thoroughly reviewing the record and counsel’s brief, we 1) agree that
there is no plausible basis for reversal of appellant’s conviction, 2) affirm the trial court’s
judgment, and 3) grant counsel’s motion to withdraw. 2
Brian Quinn
Chief Justice
Do not publish.
2 Within five days after the date of this opinion, appellate counsel shall 1) send appellant a copy of
the opinion and judgment and 2) inform appellant of her right to file a pro se petition for discretionary review.
See TEX. R. APP. P. 48.4. This duty is only informational and ministerial. It does not encompass or require
the rendition of legal advice or further representation.
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