Christian Brian Domm v. State

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Christian Brian Domm v. The State of Texas

Appellate case number: 01-18-00272-CR

Trial court case number: CR13530

Trial court: 355th District Court of Hood County

Christian Brian Domm appeals his conviction for driving while intoxicated. Domm’s appointed 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). Domm did not file 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. The question before us is not who will ultimately prevail but instead whether any non-frivolous issue exists. If the 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). 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 nonfrivolous challenge concerning the trial court’s restriction on appellant’s right to argue applicable law in closing arguments. Accordingly, the court strikes appellant’s brief, grants the motion to withdraw, abates the appeal, and remands the case to the trial court for appointment of new counsel. The appellant’s brief will be due within 30 days after new counsel is appointed. It is so ORDERED.

Judge’s signature: __/s/ Sherry Radack______  Acting individually  Acting for the Court

Date: __October 30, 2018____