Ernestina Flores v. State

Order filed August 1, 2019
In The
Eleventh Court of Appeals
___________
No. 11-18-00257-CR
___________
ERNESTINA FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 27515A
ORDER
In a three-count indictment, Appellant, Ernestina Flores, was charged
with possession of methamphetamine, possession of methamphetamine with
intent to deliver, and unlawful possession of a firearm. The jury acquitted
Appellant of unlawful possession of a firearm, but convicted her of possession of
methamphetamine with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(d) (West 2017). After Appellant pleaded true to an enhancement
paragraph, the jury assessed her punishment at imprisonment for forty-five years and
a fine of $1,000.
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. See Anders v. California, 386 U.S. 738 (1967).
Following the procedures set out in Anders; Kelly v. State, 436 S.W.3d 313
(Tex. Crim. App. 2014); and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App.
2008), we conducted an independent review of the record. In doing so, we noted
that the jury charge from the punishment phase was not included in the clerk’s record
at the time counsel filed the Anders brief.1 The district clerk has filed the
punishment-phase charge in a supplemental clerk’s record. We note that, although
a video of an extraneous offense by Appellant, and testimony regarding that
extraneous offense, were admitted during the punishment phase of the trial, the
punishment-phase charge does not contain an extraneous offense instruction as
required by Article 37.07, section 3(a) of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp. 2018); see also
Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007); Huizar v. State, 12
S.W.3d 479, 484 (Tex. Crim. App. 2000).
Counsel did not have the opportunity to review the punishment-phase charge
at the time he filed the Anders brief. Accordingly, we order counsel to review the
punishment-phase charge and file, within thirty days of the date of this order, either
1
The clerk of the trial court advised our clerk’s office that the punishment-phase charge was not
electronically scanned. Therefore, it was accidentally omitted from the clerk’s record.
2
a supplemental Anders brief or a brief withdrawing the original Anders brief and
raising any substantive issues on appeal that counsel deems arguable.
PER CURIAM
August 1, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3