Billy Marshall Sherman v. State

Order filed October 18, 2019
In The
Eleventh Court of Appeals
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No. 11-19-00190-CR
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BILLY MARSHALL SHERMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR15259
ORDER
The trial court convicted Appellant, Billy Marshall Sherman, of the offense of
online solicitation of a minor with the intent to commit the offense of sexual
performance by a child. The trial court assessed Appellant’s punishment at
confinement for ten years. The trial court sentenced Appellant in absentia. We abate
the appeal.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and concludes that this appeal is frivolous.
Counsel has provided Appellant with a copy of the brief, a copy of the motion to
withdraw, and a copy of the clerk’s record and the reporter’s record “except for the
sealed part of the exhibits.” Counsel advised Appellant of his right to review the
record and file a response to counsel’s brief. Counsel also advised Appellant of his
right to file a petition for discretionary review with the clerk of the Texas Court of
Criminal Appeals seeking review by that court. See TEX. R. APP. P. 68. 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 Anders brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and we disagree with court-appointed counsel’s conclusion that the
appeal is frivolous. Of particular concern to this court is the fact that Appellant was
not present when the trial court pronounced Appellant’s sentence. See TEX. CODE
CRIM. PROC. ANN. art. 42.03, § 1(a) (West 2018).
Accordingly, we grant counsel’s motion to withdraw, abate this proceeding,
and remand the cause to the trial court for the appointment of new appellate counsel.
See Bledsoe, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 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 of 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 on or before
2
November 1, 2019. Appellant’s brief is due to be filed in this court thirty days from
the date of the trial court’s appointment of new counsel.
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
October 18, 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.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3