Lemyel Odell Price v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00403-CR

LEMYEL ODELL PRICE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 66th District Court Hill County, Texas Trial Court No. 36,923

ORDER

Lemyel Odell Price, Jr., was charged with burglary of a habitation, a second

degree felony offense. TEX. PENAL CODE ANN. § 30.02 (West 2011). The trial court

deferred an adjudication of guilt and placed Price on community supervision for a

period of eight years. After a hearing on the State’s second motion to adjudicate, the

trial court revoked Price’s community supervision, adjudicated his guilt, and sentenced

him to eight years in prison. Price’s appellate attorney filed an Anders brief in this appeal. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel asserts in the

Anders brief that after a detailed search of the record, he has found no non-frivolous

issues to appeal. Counsel specifically discusses what the State was required to prove,

that being identity and a violation of community supervision, the four violations

alleged by the State, and his conclusion that the three witnesses called by the State

sufficiently proved those violations.

However, after reviewing the record, we discovered that the State’s first motion

to adjudicate included the multiple grounds reviewed by counsel. That motion resulted

in the trial court amending Price’s terms of community supervision to require him to

successfully complete a term of confinement and treatment in a Substance Abuse Felony

Punishment Facility. The State filed a second motion to adjudicate because Price was

unsuccessfully discharged from SAFPF. A hearing was held on that one violation. The

trial court revoked Price’s community supervision, adjudicated him guilty, and

sentenced him to eight years in prison. It is from that sequence of events that Price

appeals. Further, we note that when the trial court adjudicated Price guilty, it ordered

restitution, “old” attorney’s fees, and transport fees. Counsel failed to review any of

these fees to determine if any arguable issue on appeal arises from the imposition of the

fees. See generally McElwain v. State, No. 10-13-00291-CR, 2014 Tex. App. LEXIS 2661

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

Price v. State Page 2 To comply with Anders, counsel's brief must evidence a professional evaluation

of the record demonstrating why, in effect, there are no arguable grounds to be

advanced. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim.

App. 1978). Because counsel does not review the State’s second motion to adjudicate or

the resulting hearing, and because counsel does not review or discuss the fees ordered

by the trial court, we conclude that counsel has not conducted the required professional

evaluation of the record.

Accordingly, we abate this proceeding to the trial court for the entry of an order

withdrawing the appointment of present counsel and the appointment of new counsel

in this appeal. See High, 573 S.W.2d at 813 (“The appeal is abated and the cause is

remanded in order that the trial court might provide appellant with the effective

assistance of counsel on appeal.”). A copy of the order appointing new counsel shall be

forwarded to the Clerk of this Court within ten days of the date of this abatement order.

Upon receipt of the appointment of new counsel, we will reinstate the appeal and new

counsel will then have thirty days to file a brief unless a motion for extension for good

cause is filed and granted by this Court pursuant to the Rules of Appellate Procedure.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed May 1, 2014

Price v. State Page 3