Joseph Robert McElwain, Jr. v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-13-00291-CR

JOSEPH ROBERT MCELWAIN, JR., Appellant

v.

THE STATE OF TEXAS, Appellee

From the 249th District Court Johnson County, Texas Trial Court No. F46929

ORDER

Joseph Robert McElwain, Jr. was convicted of the offense of burglary of a

habitation and sentenced to 15 years in prison. TEX. PENAL CODE ANN. § 30.02(c)(2)

(West 2011). Counsel for McElwain filed a motion to withdraw as counsel and a brief in

support of his motion pursuant to Anders v. California. See Anders v. California, 386 U.S.

738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We abated this appeal to the trial court for

the entry of an order withdrawing the appointment of present counsel and for the

appointment of new counsel because, based on our independent review of the record, we found an arguable ground for appeal. McElwain v. State, No. 10-13-00291-CR, 2014

Tex. App. LEXIS 2661 (Tex. App.—Waco Mar. 6, 2014, order) (publish).

New counsel has been appointed. Accordingly, this appeal is reinstated, and

counsel’s brief is due 30 days from the date of this order. Previous counsel’s motion to

withdraw is dismissed as moot.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Justice Scoggins concurs with a note)* Appeal reinstated Motion dismissed Order issued and filed March 27, 2014

*(“Justice Scoggins concurs in the order of the Court. I concur to the extent that it reinstates this appeal; however, as stated in the dissent in the underlying opinion, see McElwain v. State, No. 10-13-00291-CR, ___ S.W.3d ___, 2014 Tex. App. LEXIS 2661, at **5-13 (Tex. App.—Waco Mar. 6, 2014, no pet. h.), I still do not believe that briefing is necessary to address the trial court’s assessment of appellant’s court-appointed attorney’s fees. Based on the case law presented in the dissent, I believe that, in the interest of judicial economy, this Court has the power to reform the judgment to delete the court-appointed attorney’s fees and affirm the judgment as modified.”)

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