Ray Anthony Luna v. the State of Texas

Opinion

Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-25-00637-CR

Ray Anthony LUNA,

Appellant

v.

The STATE of Texas,

Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2020-CR-11680 Honorable Benjamin Robertson, Judge Presiding

PER CURIAM

Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice

Delivered and Filed: August 19, 2026 ABATED AND REMANDED; MOTION TO WITHDRAW GRANTED Appellant Ray Anthony Luna filed a notice of appeal from a judgment revoking his community supervision. Luna’s court-appointed appellate counsel filed an Anders brief and a motion to withdraw. Because there is an arguable ground for appeal, we grant counsel’s motion to withdraw and abate this appeal.

We withdraw our June 9, 2026 submission date; the appeal will be reset for submission at a later date. We remand this cause for the trial court to appoint new appellate counsel to represent Luna.

BACKGROUND

In 2020, Luna was indicted on three counts. Pursuant to a plea bargain agreement, the State abandoned Counts I and II and a repeat offender allegation, and Luna pled nolo contendere to Count III, felon in possession of a firearm. The trial court assessed punishment of ten years’ confinement, suspended that sentence, and placed Luna on community supervision for six years.

On July 22, 2025, the State filed a first amended motion to revoke Luna’s community supervision on multiple grounds. On August 22, 2025, the trial court appointed a new attorney to represent Luna. 1 On August 29, 2025, Luna, his court-appointed counsel, and the State appeared in the trial court for a hearing on the State’s motion to revoke.

During the August 29 hearing, Luna pled true to an allegation that he failed to report to his supervision officer in September, October, November, and December of 2024. The State recommended that his sentence be reformed from ten years’ confinement to four years’ confinement. The trial court accepted the State’s recommendation and orally pronounced a sentence of four years’ confinement, with credit for time already served. However, the trial court’s written judgment sentenced Luna to two years’ confinement. 2 Luna timely filed a notice of appeal.

On January 12, 2026, Luna’s appointed appellate counsel, David L. McLane, filed an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967); Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). In the brief, counsel asserted that he

1 The attorney appointed on August 22, 2025 was the last of several retained and appointed attorneys who represented Luna in the trial court. 2 While the Honorable Benjamin Robertson signed the written judgment, the sentence was orally pronounced by a visiting judge, the Honorable Melisa C. Skinner.

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had reviewed the entire record and concluded there were no non-frivolous grounds for appeal. See Kelly, 436 S.W.3d at 319; Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, no pet.). The State initially waived its right to file a brief, but it subsequently filed a letter brief in response to our order directing it to address the discrepancy between the trial court’s written judgment and oral pronouncement of sentence.

INDEPENDENT REVIEW

“Under Anders, after receiving a brief claiming that there are no arguable grounds for appeal, the reviewing court must review the record to make an independent determination.” Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (emphasis removed); accord Anders, 386 U.S. at 744.

Having conducted an independent review of the record, we conclude there is an arguable ground of appeal. See Stafford, 813 S.W.2d at 511; Nichols, 954 S.W.2d at 85. Specifically, the record shows that Luna’s trial counsel was appointed to represent him on August 22, 2025 and that the revocation hearing occurred seven days later, on August 29, 2025. The record therefore shows that Luna’s appointed trial counsel did not have ten days to prepare for the proceeding as required by the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 1.051(e). Furthermore, nothing in the record indicates that Luna’s appointed counsel “waive[d] the preparation time with the consent of the defendant in writing or on the record in open court.” See id. Because Luna’s appointed counsel did not receive the mandatory ten-day preparation time and Luna did not waive that preparation time in writing or on the record, the trial court arguably erred by proceeding with the revocation hearing. See id.; Barnes v. State, No. 07-25-00282-CR, 2026 WL 2131771, at *2 (Tex. App.—Amarillo July 23, 2026, no pet. h.) (mem. op., not designated for publication). The Anders brief filed by Luna’s appointed appellate counsel does not address this potential error, and

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we may not review the merits of that issue in his place. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).

ANDERS PROCEDURE

In his Anders brief, Luna’s appointed appellate counsel advised this court that he had reviewed the entire record and concluded that there were no arguable points of error. Because our independent review has determined there is an arguable ground of appeal, we grant David L. McLane’s motion to withdraw. See Nichols, 954 S.W.2d at 86.

We abate this appeal and remand the cause to the trial court. We order the trial court to appoint a different attorney to represent Luna on appeal and notify this court of the appointment within thirty days of our order. See Bledsoe, 178 S.W.3d at 827; Stafford, 813 S.W.2d at 511. If Luna wishes to prosecute this appeal, new appellate counsel must file a brief that addresses the issue we have identified and any other arguable grounds for appeal. See Bledsoe, 178 S.W.3d at 827; Stafford, 813 S.W.2d at 511.

We note that while this opinion identifies an arguable ground of appeal that newly appointed appellate counsel should brief, our identification of an arguable ground of appeal is not a predetermination that this record presents reversible error. See Nichols, 954 S.W.2d at 86. Instead, it is an opportunity for Luna to brief the identified issue “as well as any additional grounds that the attorney discovers,” and for the State to respond. See id. Additionally, although we have cited statutes, rules, and opinions which may be applicable to the question before us, the cited authorities are not an exhaustive list, and other statutes, rules, or opinions may apply. Further, by citing opinions, we are neither adopting nor rejecting their reasoning.

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We withdraw our June 9, 2026 submission date. After the new briefs are filed, we will reset this case for submission.

PER CURIAM

DO NOT PUBLISH