Emily Marie Mireles v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 23, 2024
• Docket: 07-23-00304-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00304-CR

EMILY MARIE MIRELES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 106th District Court Lynn County, Texas Trial Court No. 20-3373, Reed A. Filley, Presiding

February 23, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Emily Marie Mireles appeals the trial court’s judgment by which she was

adjudicated guilty of possession of a controlled substance (felony of the second degree),

an offense for which she had originally been placed on three years deferred adjudication

community supervision. The State moved to adjudicate guilt on several grounds. A

hearing was held, after which the trial court granted the motion, adjudicated appellant

guilty of possessing a controlled substance of more than four grams but less than 200,

and levied a twenty-year prison sentence. She appealed and received appointed counsel. The latter filed a motion to withdraw supported by an Anders brief. 1 We grant

counsel’s motion to withdraw and affirm the judgment of the trial court.

In support of his motion to withdraw, counsel certified that he conducted a

conscientious examination of the record, and in his opinion, it reflected no arguable basis

for reversing appellant’s conviction. See Anders, 386 U.S. at 744–45; In re Schulman,

252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel explained why, under the

controlling authorities, the record supports that conclusion. He further demonstrated that

he complied with the requirements of Anders and In re Schulman by 1) providing a copy

of the brief, motion to withdraw, and appellate record to appellant, 2) notifying appellant

of her right to file a pro se response, and 3) informing appellant of her right to file a pro

se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408. By letter

dated December 27, 2023, this Court granted appellant an opportunity to exercise her

right to file a response to counsel’s motion and brief by January 26, 2024. To date,

appellant has not filed a response or otherwise communicated with the court.

We independently examined the record to determine whether there were any non-

frivolous issues supporting reversal as required by In re Schulman. We found none.

Of concern, though, is that the same attorney represented appellant throughout

the proceeding. That attorney served as counsel when appellant initially pleaded guilty

to the indictment and had the adjudication of her guilt deferred; when the State moved to

adjudicate guilt; when the trial court heard the motion, adjudicated guilt, and sentenced

appellant; and when appellant appealed therefrom. We have no blanket rule requiring

that the trial court appoint different counsel to represent an appellant on appeal than the

1 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

2 one appointed at trial. See Quinonez v. State, No. 07-19-00149-CR, 2020 Tex. App.

LEXIS 50, at *2 (Tex. App.—Amarillo Jan. 6, 2020, no pet.) (mem. op.) (per curiam) (and

cases cited therein). Yet, we have consistently said that the better practice is to have

different counsel. Id. If nothing else, it affords one whose liberty has be taken from him

or her the chance to have a pair of fresh eyes review the circumstances and engage in

an independent analysis. But, as said, there is no blanket rule, as yet; instead, we

proceed on a case-by-case basis as in the past. Moreover, our independent review of

the short record at bar coupled with appellant’s acknowledgements to violating one or

more terms of her community supervision leaves to conclude that the circumstances here

do not warrant an abatement for the appointment of new counsel. Nevertheless, we

again stress that the better, more confidence-inspiring practice is to appoint

counsel on appeal different from who was appointed at trial.

So, after thoroughly reviewing the record and counsel’s brief, we 1) agree that

there is no plausible basis for reversal of appellant’s conviction, 2) affirm the trial court’s

judgment, and 3) grant counsel’s motion to withdraw. 2

Brian Quinn Chief Justice

Do not publish.

2 Within five days after the date of this opinion, appellate counsel shall 1) send appellant a copy of

the opinion and judgment and 2) inform appellant of her right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4. This duty is only informational and ministerial. It does not encompass or require the rendition of legal advice or further representation. 3