Blake Anthony Ervin v. State

Opinion

Order entered October 16, 2018

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00310-CR No. 05-18-00530-CR No. 05-18-00531-CR No. 05-18-00532-CR No. 05-18-00533-CR No. 05-18-00534-CR

BLAKE ANTHONY ERVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause Nos. F17-71200-L, F17-40081-L, F17-71199-L, F17-75838-L, F17-75876-L & F17-75942-L

ORDER On August 14, 2018, appellant’s counsel, Dianne Jones McVay, filed a motion to

withdraw and accompanying Anders brief. Appellant requested permission to file a pro se

response to counsel’s Anders brief, and the record was provided to him. By order entered

September 12, 2018, the Court established October 30, 2018 as the due date for appellant’s pro

se response. On October 10, 2018, counsel filed a letter with the Court requesting that the Court

grant her pending motion to withdraw because she is taking a corporate legal position starting

October 22, 2018, and may not have outside cases. Because appellant has not yet had the opportunity to file his pro se response, and the

Court has not yet decided whether the appeals are frivolous with no arguable meritorious issues,

it would be premature to grant counsel’s motion to withdraw as part of the Anders process. See

In re Schulman, 252 S.W.3d 403, 410 (Tex. Crim. App. 2008). Accordingly, we will treat

counsel’s August 14, 2018 motion to withdraw as a stand-alone motion to withdraw filed

pursuant to rule of appellate procedure 6.5 and, so construed, we GRANT the motion. See TEX.

R. APP. P. 6.5. We DIRECT the Clerk of the Court to remove Dianne Jones McVay as

appointed counsel for appellant.

Because an Anders brief is filed in support of a motion to withdraw asserting the appeals

are frivolous, and because there is no longer a motion to withdraw on Anders grounds pending

before the Court, we STRIKE appellant’s August 14, 2018 Anders brief. See Schulman, 252

S.W.3d at 406.

We ORDER the trial court to appoint new counsel to represent appellant on appeal. We

ORDER the trial court to transmit supplemental clerk’s records containing the order appointing

new counsel to this Court within FIFTEEN DAYS of the date of this order.

We VACATE the Court’s September 12, 2018 order to the extent it authorizes appellant

to file a pro se response to the Anders brief. If appellant’s new counsel files another Anders

brief, the Court will provide appellant with an opportunity to file a pro se response to the new

brief.

We ABATE the appeals to allow the trial court to comply with this order. We will

reinstate the appeals when we receive the order appointing new counsel.

–2– We DIRECT the Clerk of the Court to send a copy of this order, by electronic

transmission, to the Honorable Carter Thompson, Presiding Judge, Criminal District Court No. 5;

to appellate counsel Dianne Jones-McVay; and to counsel for the State.

We further DIRECT the Clerk of the Court to send a copy of this order, by first-class

mail, to Blake Anthony Ervin, TDCJ No. 2183892, Coffield Unit, 2661 FM 2054, Tennessee

Colony, Texas 75884.

/s/ LANA MYERS JUSTICE

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