Paul Ybarra v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 31, 2024
• Docket: 04-22-00413-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00413-CR

Paul YBARRA, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2020CR6362 Honorable Laura Lee Parker, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: January 31, 2024

MOTION TO WITHDRAW GRANTED; ABATED AND REMANDED

A jury convicted appellant Paul Ybarra of aggravated assault with a deadly weapon, and

the trial court sentenced him to forty years’ confinement based on a finding he was a habitual

offender. See TEX. PENAL CODE § 22.02(a)(2). The judgment also imposed court costs of $395.00.

Ybarra timely appealed.

Ybarra’s court-appointed appellate attorney filed a motion to withdraw and an Anders brief

in which she concludes this appeal is frivolous and without merit. The brief meets the requirements

of Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 04-22-00413-CR

[Panel Op.] 1978); and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). As required,

counsel sent copies of the brief and motion to withdraw to Ybarra and informed him of his rights

in compliance with the requirements of Kelly v. State, 436 S.W.3d 313 (2014). Counsel also

provided appellant with a form motion to access the appellate record, and this court provided

Ybarra with a copy of the appellate record after Ybarra filed the motion. This court also notified

Ybarra of his right to file a pro se brief, and Ybarra filed a pro se brief.

Having determined the procedural requirements of Anders have been satisfied, we must

now review the record to make an independent determination as to whether the appeal is wholly

frivolous or whether arguable grounds for appeal exist. Garner v. State, 300 S.W.3d 763, 766

(Tex. Crim. App. 2009) (citing Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005))

and explaining court of appeals has two choices when faced with Anders brief: determine appeal

is wholly frivolous and issue opinion explaining it reviewed record and found no reversible error

or determine arguable grounds for appeal exist and remand cause for appointment of new counsel).

If we determine a nonfrivolous ground for appeal exists, we must grant defense counsel’s motion

to withdraw, abate the appeal, and remand the case to the trial court for appointment of new

counsel. See Garner, 300 S.W.3d at 766; Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San

Antonio 1997, no pet.). The new attorney is then required to file a brief raising the nonfrivolous

ground we have identified, as well as any additional grounds, which the attorney discovers.

Bledsoe, 178 S.W.3d at 827.

After reviewing the briefs and the record, we conclude the appeal is not wholly frivolous

and there are arguable ground(s) for appeal, including whether the trial court erred by failing to

make an inquiry on the record regarding the defendant’s ability to pay court costs. See Almeida v.

State, No. 04-22-00669-CR, 2024 WL 172588, at *1-3 (Tex. App.—San Antonio Jan. 17, 2024,

no pet. h.) (concluding arguable issue exists if record is silent as to whether trial court made inquiry

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on record as to court costs); TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1). We therefore grant

counsel’s motion to withdraw, abate the appeal, and remand the cause to the trial court. See

Garner, 300 S.W.3d at 766; see also Nichols, 954 S.W.2d at 86. The trial court shall, within thirty

days from the date of our opinion and order, appoint a new attorney on appeal to present all

arguable grounds of error, including but not limited to the nonfrivolous ground noted in this

opinion. See Garner, 300 S.W.3d at 766; see also Nichols, 954 S.W.2d at 86.

Luz Elena D. Chapa, Justice

Do Not Publish

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