Leoncio Espinoza, Jr. v. State

Order filed October 1, 2020
In The
Eleventh Court of Appeals
__________
No. 11-19-00232-CR
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LEONCIO ESPINOZA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-18-1422-CR
ORDER
Appellant, Leoncio Espinoza, Jr., pleaded not guilty to eleven offenses of
sexual assault of a child. After a consolidated trial on all eleven offenses, the jury
acquitted Appellant of two of the offenses, convicted him of the remaining nine
offenses, and assessed punishment at imprisonment for twenty years on each of the
nine convictions. The trial court ordered that the sentences be cumulated. 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 asserts that he has professionally
and conscientiously 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, the motion to withdraw, and the appellate record and has advised
Appellant of his right to review the record and file a response to counsel’s brief. It
appears that court-appointed counsel has attempted to comply with the requirements
of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex.
Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991);
High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978); Currie v. State,
516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex.
Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005,
no pet.).
Appellant has filed a pro se response in which he asserts several issues. In
addressing an Anders brief and pro se response, a court of appeals may only
determine (1) that the appeal is wholly frivolous and issue an opinion explaining that
it has reviewed the record and finds 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 409; Bledsoe v. State, 178
S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
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. We are of the opinion that there are arguable
grounds for appeal. In this regard, an appeal arising from a contested trial on
guilt/innocence is not readily amenable to disposition under Anders.
2
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 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 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 October 23, 2020. 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. All other appellate deadlines shall be in accordance with the Texas
Rules of Appellate Procedure.
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 1, 2020
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