Edward Bealefield v. State

• Court: Court of Appeals of Texas
• Decided: February 23, 2017
• Docket: 14-15-00805-CR
• Status: Published

Opinion

Abatement Order filed February 23, 2017

In The

Fourteenth Court of Appeals ____________

NO. 14-15-00805-CR ____________

EDWARD BEALEFIELD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 1464575

ABATEMENT ORDER

Appellant appeals his conviction for continuous sexual abuse of a child. Appellant’s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We disagree with appellate counsel’s conclusion that there are no arguable issues for appeal. Specifically, counsel’s brief does not address whether there was error in the jury charge.1 See Anders, 386 U.S. at 744. In particular, our review of the charge and closing argument indicates that there was some confusion as to whether the jury was appropriately instructed that while the State did not have to prove the exact dates of the continuous sexual abuse, the two acts of abuse had to have occurred before the child was fourteen. In addition the description of the lesser included offense was confusing also as to the age of the complainant because it included both under 14 and under 17. Although the court expresses no opinion on the ultimate merit of these potential issues, the court concludes they are arguable issues for appeal. Accordingly, the case is abated and remanded to the trial court with instructions to appoint other counsel and have a supplemental clerk’s record containing that appointment filed with the clerk of this court within thirty (30) days of the date of this order.

Appellant’s Anders brief is ordered stricken. New counsel’s brief shall be due within 30 days of the date counsel is appointed.

The appeal is abated, treated as a closed case, and removed from this court’s active docket. The appeal will be reinstated on this court’s active docket when the trial court’s supplemental clerk’s record is filed with this court.

PER CURIAM

Panel consists of Justices Christopher, Busby, and Jewell.

1 Our decision should not be viewed as a determination of the merits of any issues raised in the brief or a limitation on any issue that may be raised in this appeal. Appellant’s new appellate counsel should personally review the record to determine what issues should be raised in this appeal.