Charles Lynch v. State

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Charles Lynch v. The State of Texas

Appellate case number: 01-17-00668-CR

Trial court case number: 15-CR-3172

Trial court: 405th District Court of Galveston County

Charles Lynch appeals his conviction for possession of a controlled substance with intent to deliver, 4-200 grams. Lynch’s attorney has filed a brief in which he concludes that after a review of the record and pertinent law, the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Lynch filed a pro se response. Under Anders, if an appointed attorney concludes after reviewing the record and applicable law that the appeal is without merit, he must advise the court, file a motion to withdraw, and file a brief discussing any issue that might arguably support the appeal. See id. at 744, 87 S. Ct. at 1400; Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014). The appellate court must then perform an independent examination of the record and the law to determine whether appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. If the appellate court determines that there are arguable issues, it must abate the appeal and remand with orders for the trial court to appoint new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The question before us is not who will ultimately prevail but instead whether any non-frivolous issue exists. After examining the record and applicable law, the court has determined that a nonfrivolous issue may exist. For instance, on appeal, the defendant could potentially bring a nonfivolous challenge concerning the extraneous offense evidence admitted in this case, as well as on restitution. Accordingly, the court strikes appellant’s brief, grants the motion to withdraw, abates the appeal, and remands the case to the trial court for a hearing to take place for appointment of new counsel within 30 days of this order. A supplemental clerk’s record and reporter’s record of the hearing shall be filed within 45 days if this order. The appellant’s brief will be due within 30 days after new counsel is appointed. It is so ORDERED. Judge’s signature: /s/ Jennifer Caughey  Acting individually  Acting for the Court

Panel consists of Chief Justice Radack and Justices Brown and Caughey.

Date: October 23, 2018