Jermaine Garmon v. State

Opinion

NO. 07-05-0298-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 9, 2006

______________________________

JERMAINE E. GARMON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-406,266; HON. JIM BOB DARNELL, PRESIDING

_______________________________

ON ABATEMENT AND REMAND

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant Jermaine E. Garmon appeals from his conviction of possession with intent

to deliver a controlled substance (cocaine) in an amount less than 200 grams but at least

four grams. He was convicted upon an open plea of guilty after denial of his motion to

suppress and sentenced to 45 years confinement. Appellant’s counsel has filed a motion to withdraw together with an Anders1 brief

wherein he certified that, after diligently searching the record, the appeal was without merit.

After review of appellant’s pro se brief and our own independent review of the record, we

abate the cause and remand the proceeding for the appointment of new counsel.

The facts show that appellant was under arrest for an unrelated offense when he

requested to return to his residence to use the bathroom. The officer accompanied

appellant and, without offering any Miranda warnings, asked appellant if “there was

anything illegal, anything [the officer] should know about inside the residence . . . .”

Appellant allegedly directed the officer to a laundry hamper where marijuana was

discovered. The officer then purportedly asked for consent to search the house which was

allegedly given. During that search, the cocaine which is the subject of this proceeding

was found in the laundry hamper in which the marijuana was also discovered in response

to the officer’s question. While appellate counsel discussed whether the consent2 was

voluntary, appellant contends that he was initially interrogated while in custody without

having received the proper warnings. Out of an abundance of caution, we conclude that

evaluation of this contention is necessary before we determine if the appeal is frivolous.

Having found an arguable ground for appeal, we abate the appeal and remand the

cause to the 140th District Court of Lubbock County. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991). Upon remand, the trial court shall appoint an attorney

to represent appellant in this appeal. The trial court shall further order the newly appointed

1 Anders v. California, 386 U.S. 738, 744-45, 8 7 S.C t. 1396, 18 L.Ed .2d (1 967 ).

2 It is not clear whether the consent being discussed is the remark to look in the laundry hamper or the cons ent to sea rch the hous e.

2 counsel to file an appellant’s brief, as per the Texas Rules of Appellate Procedure,

developing the aforementioned arguable ground and any other grounds that might support

reversal or modification of the judgment. The deadline for filing appellant’s brief with the

clerk of this court is June 10, 2006. Thereafter, any responding brief which the State may

care to submit shall be filed within 30 days after the filing of appellant’s brief. Finally, the

trial court shall cause the name, address, and state bar number of the newly appointed

counsel to be included in a supplemental transcript which transcript shall be filed with the

clerk of this court by June 10, 2006.

Accordingly, counsel’s motion to withdraw is granted, and the appeal is remanded

to the trial court for further proceedings.

Per Curiam

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