Douglas Bray v. State

• Court: Court of Appeals of Texas
• Decided: January 19, 2015
• Docket: 02-14-00053-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00052-CR NO. 02-14-00053-CR NO. 02-14-00054-CR

DOUGLAS BRAY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NOS. F-2013-0106-A, F-2013-2036-A, F-2013-2037-A

ABATEMENT ORDER

Appellant made an open plea of guilty to aggravated assault with a deadly

weapon, assault against a public servant, and harassment of a public servant.

See Tex. Penal Code Ann. §§ 22.01(b)(1), 22.02(b), 22.11(a)(2) (West 2011 &

Supp. 2014). The jury assessed appellant’s punishment at five years’

confinement for the aggravated assault and ten years’ confinement for the

assault-against-public-servant offense and for the harassment-of-a-public-

servant offense. See id. §§ 12.33–.34 (West 2011). The jury recommended community supervision for the public-servant-related offenses, and the trial court

suspended the imposition of the ten-year sentences and placed appellant on ten

years’ community supervision, to run concurrently with his other sentence.

On December 31, 2014, these appeals were submitted to the court as

frivolous appeals pursuant to Anders v. California. See 386 U.S. 738, 87 S. Ct.

1396 (1967). In reviewing the tendered brief and supplemental brief, the clerk’s

record, the supplemental clerk’s record, and the reporter’s record in each case,

as required by Anders, we have determined that counsel could have raised at

least one arguable issue in each case, namely, ineffective assistance of counsel

with regard to trial counsel’s having failed to raise (and thereby having failed to

preserve for appellate review) a defensive issue with regard to appellant’s mental

state at the time that he committed the offenses despite having appellant’s

competency to stand trial assessed and an objection to appellant’s sentences as

violating the Eighth Amendment’s prohibition against cruel and unusual or

excessive punishment. Additionally, with regard to cause numbers 02-14-00053-

CR and 02-14-00054-CR, counsel could have raised ineffective assistance of

counsel with regard to trial counsel’s failure to object to the imposition of

$4,468.75 in appointed counsel fees as a term or condition of community

supervision when the record reflects that appellant was indigent; counsel also

could have examined whether conviction of both of these offenses, involving the

same public servant and the same encounter, violated the Fifth Amendment’s

2 multiple punishments prohibition, and whether this needed to be preserved as an

argument for appeal.

Without expressing a view as to whether reversible error is actually shown

in the records before us, or whether there are other arguable issues that counsel

could have raised, we conclude that appellant’s court-appointed counsel should

have provided full briefing on the merits rather than by way of Anders. Because

we have determined that the record in each case supports at least one arguable

issue, we are obligated to order the trial court to appoint new counsel to

represent appellant. See Penson v. Ohio, 488 U.S. 75, 83–84, 109 S. Ct. 346,

351–52 (1988); see also Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991) (stating that if grounds are deemed arguable, the court of appeals must

abate the appeal and remand the case to the trial court with orders to appoint

other counsel to present the arguable grounds and any others that might support

the appeal).

Therefore, we grant counsel’s motions to withdraw, abate the appeals, and

remand these causes to the trial court for the appointment of new counsel. A

supplemental clerk’s record containing the trial court’s order appointing new

counsel in each cause shall be filed in this court on or before February 13, 2015.

Upon our receipt of the supplemental records, the appeals shall be automatically

reinstated, and the court will set briefing deadlines.

While these cases are on remand in the trial court, the trial court shall also:

3 1. Modify the judgments in all three cause numbers by obtaining appellant’s

thumbprint in accordance with code of criminal procedure articles 38.33 and

42.01. See Tex. Code Crim. Proc. Ann. art. 38.33 (West 2005), art. 42.01,

§ 1(13), (23) (West Supp. 2014); see also Norton v. State, 434 S.W.3d 767,

773–74 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (ordering trial court to

modify judgment to include thumbprint); Sparkman v. State, 55 S.W.3d 625,

629 (Tex. App.—Tyler 2000, no pet.) (remanding case to the trial court to

obtain appellant’s thumbprint on judgment); and

2. Modify the judgment in trial court cause number F-2013-2036-A to reflect that

appellant was convicted of third-degree felony assault against a public

servant under penal code section 22.01.

The clerk of this court shall transmit a copy of this order to appellant, the

attorneys of record, the trial court judge, the trial court clerk, and the court

reporter.

DATED January 14, 2015.

PER CURIAM

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

GABRIEL, J., concurs.