Adrian Calderon v. State

• Court: Court of Appeals of Texas
• Decided: February 21, 2018
• Docket: 10-17-00265-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00265-CR

ADRIAN CALDERON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. 23,372

ABATEMENT ORDER

Appellant, Adrian Calderon, was charged by indictment with continuous sexual

abuse of a child younger than fourteen years of age. See TEX. PENAL CODE ANN. § 21.02

(West Supp. 2017). Appellant pleaded “not guilty” to the charged offense, and this matter

proceeded to trial.

At the conclusion of the evidence, the jury found appellant guilty of the charged

offense and assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified appellant’s right of appeal,

and this appeal followed.

Appellant’s court-appointed appellate counsel has filed a motion to withdraw

from the representation supported by an Anders brief. See Anders v. California, 386 U.S.

738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). In his Anders brief, counsel stated

his conclusion that, after evaluating the entire record, “he does not believe that the

Appellant has any arguable grounds to advance in this appeal.” The brief cited

applicable case law, discussed the case background and appellant’s sentencing hearing,

and analyzed several possible issues. Counsel found no arguable error.

Counsel notified appellant by letter of his motion to withdraw, provided him a

copy of the motion and Anders brief, informed him of his right to file a pro se response,

informed him of his right to seek discretionary review before the Court of Criminal

Appeals should this Court find the appeal frivolous, and provided appellant a form

motion for pro se access to the appellate record. See Kelly v. State, 436 S.W.3d 313, 319-20

(Tex. Crim. App. 2014) (specifying appointed counsel’s obligations upon filing a motion

to withdraw supported by an Anders brief). Appellant has not filed the motion for pro se

access, nor has he filed a pro se response in this matter.

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); see In re Schulman, 252 S.W.3d 403,

Calderon v. State Page 2 407 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.3d 503, 510 (Tex. Crim. App. 1991);

High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978). After doing so, we are not

satisfied that the appeal is wholly frivolous. See High, 573 S.W.2d at 811 (“[I]n the last

analysis, it is up to the court, not counsel, ‘after a full examination of all proceedings, to

decide whether the case is wholly frivolous.” (quoting Anders, 386 U.S. at 744, 87 S. Ct. at

1400)). We disagree with counsel’s assertion that appellant’s desire to discharge his

retained trial counsel and represent himself after the State rested does not constitute an

arguable ground on appeal.

The record reveals that, after the State rested and after defense counsel cross-

examined the child victim in this case, appellant moved to discharge retained counsel.

The trial court permitted appellant’s family members to talk with him and assist in this

matter then questioned appellant regarding his education and legal experience. Despite

the admonishments, appellant appeared to unequivocally assert his right to self-

representation. Nevertheless, the trial court denied appellant’s request.

We grant counsel’s motion to withdraw. See Stafford, 813 S.W.2d at 511. We further

abate the appeal and remand the cause to the 52nd District Court of Coryell County. On

remand, the trial court shall appoint new counsel to represent appellant in this appeal.

The trial court shall cause the name, email and postal addresses, telephone number, and

state bar number of the newly-appointed counsel to be included in a supplemental

Calderon v. State Page 3 record. The record of that appointment shall be filed with the Clerk of this Court on or

before March 21, 2018.

Additionally, the trial court shall order the newly-appointed counsel to file an

appellant’s brief, according to the Texas Rules of Appellate Procedure, addressing any

arguable meritorious ground for appeal flowing from appellant’s requests to discharge

retained counsel and represent himself, as well as any other arguably meritorious ground

counsel sees for reversal or modification of the trial court’s judgment. Absent a request

for extension from newly-appointed counsel, the appellate brief shall be filed no later

than thirty days from the date of counsel’s appointment. A response brief may be filed

by the State within thirty days after the filing of the appellant’s brief.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated & remanded Order delivered and filed February 21, 2018 Do not publish [CRPM]

Calderon v. State Page 4