Glenn Ervin Anders v. State

• Court: Court of Appeals of Texas
• Decided: August 1, 2011
• Docket: 07-11-00149-CR
• Status: Published

Opinion

NO. 07-11-00149-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

-------------------------------------------------------------------------------- AUGUST 1, 2011 --------------------------------------------------------------------------------

GLENN ERVIN ANDERS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE --------------------------------------------------------------------------------

FROM THE 20TH DISTRICT COURT OF MILAM COUNTY;

NO. CR22898; HONORABLE EDWARD P. MAGRE, JUDGE --------------------------------------------------------------------------------

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER OF ABATEMENT AND REMAND Appellant, Glenn Ervin Anders, pleaded "guilty" to two counts of indecency with a child by contact and was sentenced to ten years' imprisonment. He timely filed a notice of appeal with respect to his convictions. On July 8, 2011, this Court received appellant's brief in which counsel appears to rely on the procedure outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We refused to file said brief because we noted a substantive defect in the brief and omitted steps in the Anders procedure. Counsel failed to file a motion to withdraw and, in his brief, prayed for reversal and remand, relief that is inconsistent with the Anders procedure for frivolous appeals. See In re Schulman, 252 S.W.3d 403, 408 (Tex.Crim.App. 2008); Jeffrey v. State, 903 S.W.2d 776, 779 - 80 (Tex.App. -- Dallas 1995, no pet.). Additionally, counsel's letter to appellant failed to satisfy all of the educational burdens placed on counsel in the Anders context. See In re Schulman, 252 S.W.3d at 408. By letter dated July 8, this Court notified counsel of the defects and directed counsel to file a motion to withdraw, an excerpt to be amended to the brief that prayed for appropriate relief, and a supplemental letter to appellant that satisfied counsel's remaining educational burdens. Counsel was directed to respond on or before July 25. To date, however, counsel has not responded to the Court's directive. It is counsel's duty to request leave to withdraw from representation in the event he believed the appeal to be frivolous. Id. at 407. Unless or until counsel has filed a motion to withdraw, this Court cannot proceed in an orderly fashion in the Anders context. Id. at 411 - 12. Consequently, we now abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall immediately determine the following: (1) whether appellant desires to prosecute the appeal; (2) if so, whether appointed counsel intended to file an Anders brief; (3) if appellant's counsel did intend to file an Anders brief; why he has failed to file a motion to withdraw, correct the inconsistent prayer, and supplement his educational burdens letter to appellant; (4) if appellant's counsel did not intend to file an Anders brief, whether he has abandoned the appeal by failing to correct the inconsistent positions taken in appellant's brief; (5) if appellant's counsel has abandoned the appeal, whether new counsel should be appointed on appeal; (6) any additional issues the trial court finds material to ensuring appellant receives effective assistance of counsel on appeal. See Tex. R. App. P. 43.6. The trial court shall execute findings of fact and conclusions of law, and cause the same to be included in a supplemental clerk's record to be filed with the Clerk of this Court by August 31, 2011. A supplemental reporter's record of any hearing shall also be included in the appellate record if requested by appellate counsel. Should the trial court determine that new counsel should be appointed on appeal, the trial court shall provide this Court with the name, address, telephone number, and state bar number of the newly-appointed counsel. It is so ordered. Per Curiam

Do not publish.