James Quinonez v. State

• Court: Court of Appeals of Texas
• Decided: January 6, 2020
• Docket: 07-19-00149-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-19-00149-CR ________________________

JAMES QUINONEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 106th District Court Garza County, Texas Trial Court No. 17-2973; Honorable Reed Filley, Presiding

January 6, 2020

ABATEMENT AND REMAND Before PIRTLE, PARKER and DOSS, JJ.

Following an open plea of guilty, Appellant, James Quinonez, was convicted of

aggravated sexual assault of a child, enhanced by two prior felonies.1 He elected to have

a jury assess his punishment. After evidence was presented, the jury assessed

punishment at confinement for life. In presenting this appeal, court-appointed counsel

1 TEX. PENAL CODE ANN. §§ 22.021(a)(B), 12.42(d) (West 2019). has filed an Anders2 brief indicating there was no merit to Appellant’s appeal. In response

to counsel’s brief, Appellant has filed several pro se motions requesting appointment of

new counsel. In this court’s review of those motions, it is apparent that Appellant’s court-

appointed appellate counsel also served as his court-appointed trial counsel. For the

reasons expressed herein, we now strike appellate counsel’s Anders brief, grant

counsel’s motion to withdraw, and abate this appeal to the trial court for appointment of

new counsel who can represent Appellant on appeal with a fresh perspective. See

Chandler v. State, 988 S.W.2d 827, 828 (Tex. App.—Dallas 1999, no pet.) (concluding it

is not appropriate for appointed appellate counsel who also served as trial counsel to file

an Anders brief).

This court has not adopted a blanket rule that it is inappropriate for appointed

appellate counsel who also served as trial counsel to file an Anders brief. See Hernandez

v. State, No. 07-14-00417-CR, 2015 Tex. App. LEXIS 8054, at *5 n.4 (Tex. App.—

Amarillo July 30, 2015, order). In Hernandez, this court noted that an Anders brief filed

by counsel who also served as trial counsel exacerbated counsel’s suggestion of a

potentially arguable issue and abated the case and remanded the cause to the trial court

for appointment of new counsel. However, in Maldonado v. State, No. 07-17-00190-CR,

2017 Tex. App. LEXIS 9791, at *2 n.4 (Tex. App.—Amarillo Oct. 18, 2017, no pet.) (mem.

op., not designated for publication), this court, when faced with an Anders brief filed by

appellate counsel who also served as trial counsel, did not consider it judicially prudent

to abate the appeal and remand the cause to the trial court for appointment of new

appellate counsel under the circumstances presented in that case. We did, however,

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

2 acknowledge that the better practice is to appoint new and independent counsel to

represent an appellant on appeal. Id.

In this case, Appellant’s pro se filings challenge the adequacy of counsel’s advice

and representation. Specifically, Appellant claims he was denied the effective assistance

of counsel. Under the circumstances presented by the facts of this case, we deem it

prudent for the trial court to appoint new counsel without a potential conflict of interest to

independently represent Appellant on appeal. Our decision to do so in no way reflects

an opinion on counsel’s performance in representing Appellant at trial.

On remand, the trial court is directed to appoint new counsel to represent Appellant

in this appeal and to direct the trial court clerk to file a supplemental clerk’s record with

the clerk of this court containing the order appointing new appellate counsel on or before

January 31, 2020. The order shall contain the name, address, email address, phone

number, and state bar number of newly appointed counsel. Appellant’s brief will be due

thirty days following the appointment of new counsel. The State may file a brief in

response within thirty days after the filing of Appellant’s brief.

It is so ordered.

Per Curiam

Do not publish.