Randy Virgil Echols v. State

Opinion

Order filed December 21, 2012

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-12-00149-CR

                              RANDY VIRGIL ECHOLS, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                   On Appeal from the 220th District Court

                                                        Comanche County, Texas

                                                  Trial Court Cause No. CR-03450

O R D E R

            The jury convicted Randy Virgil Echols of indecency with a child by contact and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of twenty years.  We abate the appeal and remand to the trial court for appointment of new appellate counsel.

Appellant’s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel asserts that he has professionally and conscientiously examined the record and applicable law and that he has concluded that the appeal is frivolous.  Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel’s brief.  It appears that court-appointed counsel has attempted to comply with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.).

Appellant has filed a pro se response to counsel’s motion to withdraw and supporting brief.  In addressing an Anders brief and pro se response, a court of appeals may only determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.  Schulman, 252 S.W.3d 403; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

Following the procedures outlined in Anders and Schulman, we have independently re-viewed the record, and we disagree with court-appointed counsel’s conclusion that an appeal would be frivolous. We note that the trial occurred over the course of multiple days.  Approximately eleven witnesses testified, including appellant, during the guilt/innocence phase.  In the court’s perspective, an appeal arising from a contested trial on guilt/innocence is not readily amenable to disposition under Anders.  At a minimum, a challenge to the sufficiency of the evidence would appear to present arguable grounds on appeal.

            Accordingly, we grant counsel’s motion to withdraw, abate this proceeding, and remand the case to the trial court for appointment of new appellate counsel.  See Bledsoe, 178 S.W.3d at 826–27.  We direct the trial court to appoint new counsel to represent appellant on appeal.  The trial court shall furnish the name, address, telephone number, and state bar number of new counsel by its order appointing new counsel.  The order shall be included in a supplemental clerk’s record, which shall be filed with the clerk of this court by January 21, 2013.  Appellant’s brief shall be due thirty days from the date of the trial court’s appointment of new counsel.  All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.

The motion to withdraw is granted, and the appeal is abated and remanded to the trial court in accordance with this order.

December 21, 2012                                                                             PER CURIAM          

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.