Kristi Rhodes Delagarza v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2019
• Docket: 14-17-00879-CR
• Status: Published

Opinion

Order filed February 12, 2019.

In The

Fourteenth Court of Appeals

NO. 14-17-00878-CR NO. 14-17-00879-CR

KRISTI RHODES DELAGARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court No. 2 Galveston County, Texas Trial Court Cause Nos. MD-0365735 and MD-365736

ORDER

In case number 14-17-00878-CR, trial court case number MD-0365736, appellant Kristi Rhodes de la Garza was convicted by a jury of driving while intoxicated and the jury found that appellant had a prior conviction for the same offense. In case number 14-17-00879-CR, trial court case number MD-0365735, appellant was convicted by a jury of possession of less than 28 grams of a controlled substance in Penalty Group 3. Appellant filed a brief on March 30, 2018 in which she raised a single issue related to her conviction for driving while intoxicated. Appellant did not raise a separate issue challenging her conviction for possession of less than 28 grams of a controlled substance in Penalty Group 3 in case number 14-17-00879-CR.

We advised the parties on July 24, 2018 that appellant’s counsel James M. Bennett’s failure to raise any issues regarding one of appellant’s convictions without following the procedures of Anders v. California, 386 U.S. 738, 742–44 (1967), deprived appellant of effective assistance of counsel. We ordered Bennett to file an amended brief in both case numbers 14-17-00878-CR and 14-17-00879-CR that complied with the appellate rules and the Anders procedure by August 23, 2018.

Because Bennett neither filed an amended brief nor responded to our notice that the amended brief was past due, we abated both cases on September 18, 2018, and ordered the trial court to conduct a hearing to determine whether appellant desired to prosecute her appeals, whether she was indigent, the reason for the failure to file an amended brief, and a date certain when appellant’s amended brief would be filed. Bennett failed to appear at the hearing on October 3, 2018.

The trial court determined that appellant remains indigent and desires to prosecute appeals from both convictions. The trial court accordingly removed Bennett from both cases, and on October 8, 2018, appointed Zachary S. Maloney to represent appellant.

On October 25, 2018, we reinstated these consolidated appeals on the Court’s active docket and ordered appellant’s counsel Zachary S. Maloney to file in this Court, on or before November 26, 2018, “an amended brief complying with the appellate rules and the Anders procedure and addressing both of appellant’s convictions.”

2 On November 29, 2018, we granted Maloney’s motion to extend time to file the amended brief.

On January 3, 2019, we granted Maloney’s second motion to extend time to file the amended brief and informed him that no further extensions would be granted absent exceptional circumstances.

On February 1, 2019, we notified Maloney that he had failed to sign the amended brief as required by Texas Rule of Appellate Procedure 9.1(a).

On February 4, 2019, Maloney resubmitted the amended brief.

The amended brief fails to comply with our order of October 25, 2018, requiring appellant’s counsel Zachary S. Maloney to file “an amended brief complying with the appellate rules and the Anders procedure and addressing both of appellant’s convictions.” Maloney’s failure to raise any issues addressing appellant’s conviction for possession of less than 28 grams of a controlled substance in Penalty Group 3 without following the Anders procedures deprives appellant of effective assistance of counsel.

To provide appellant with effective assistance of counsel on appeal, we ORDER appellant’s counsel Zachary S. Maloney to file in this Court in the consolidated appeals of case numbers 14-17-00878-CR and 14-17-00879-CR by February 27, 2019, an amended brief that addresses both of appellant’s convictions and complies with the Texas Rules of Appellate Procedure, and if applicable, the Anders procedure.

PER CURIAM