Benny Torres Medrano v. State

• Court: Court of Appeals of Texas
• Decided: May 26, 2016
• Docket: 13-14-00335-CR
• Status: Published

Opinion

NUMBER 13-14-00335-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

BENNY TORRES MEDRANO, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 92nd District Court of Hidalgo County, Texas ____________________________________________________________

ORDER OF ABATEMENT Before Chief Justice Valdez and Justices Rodriguez and Garza

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s counsel

has filed a brief and a motion to withdraw with this Court, stating that his review of the

record yielded no grounds of error upon which an appeal can be predicated. Counsel’s

brief and motion meet the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why counsel concluded

there are no arguable grounds for relief.

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 (1988). In this evaluation, we consider the record, the arguments raised in the

Anders brief, and issues appellant points out in his pro se brief. See United States v.

Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re Schulman, 252 S.W.3d 403, 409 (Tex.

Crim. App. 2008). A court of appeals has two options when an Anders brief and a

subsequent pro se response are filed. After reviewing the entire record, it may: (1)

determine that the appeal is wholly frivolous and issue an opinion explaining that it finds

no reversible error; or (2) determine that there are arguable grounds for appeal and

remand the case to the trial court for appointment of new appellate counsel. Bledsoe v.

State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable

grounds for appeal, it may not review those grounds until after new counsel has briefed

those issues on appeal. Id.

After our independent review of the record, we conclude that there is at least one

arguable issue regarding whether the jury charge submitted at appellant's trial allowed

the jury to convict on less than a unanimous verdict. See Cosio v. State, 353 S.W.3d

766, 776–78 (Tex. Crim. App. 2011); Ngo v. State, 175 S.W.3d 738, 749 (Tex. Crim. App.

2005); Francis v. State, 36 S.W.3d 121, 124–25 (Tex. Crim. App. 2000). We stress that

this is not the only arguable issue that could be raised on appeal and, further, that we

have not determined whether the issue has merit. We conclude that appellate counsel has met his professional obligations under

Anders and GRANT his motion to withdraw. We ABATE the appeal and REMAND the

case to the trial court to appoint a new appellate attorney. See Schulman, 252 S.W.3d at

409. The trial court shall make the appointment and ensure that a supplemental record

of the proceedings is filed in this Court no later than twenty days from the date of this

order. The appeal will be reinstated upon receipt of the supplemental record. Appellant’s

brief on the merits will be due thirty days after the supplemental record is filed.

IT IS SO ORDERED.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 26th day of May, 2016.