Rodney Milum v. State

Opinion

Order issued November 20, 2014

In The Court of Appeals For The First District of Texas

NO. 01-13-01027-CR

RODNEY MILUM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1347043

ABATEMENT ORDER

Appellant, Rodney Milum, pleaded guilty to the offense of sexual assault of

a child. After a trial by jury, he was found guilty and sentenced to two years with the Texas Department of Criminal Justice. The court suspended his sentence in

favor of eight years’ community supervision. 41 conditions of community service

were imposed, including:

 You may enter a church, synagogue or other place of worship only to attend a public service. You may arrive fifteen (15) minutes prior to service and you must depart the place of worship immediately following the service. (Item number 26 in Conditions of Community Supervision).  You may not access to the Internet through any manner of method, beginning 10/18/2013 for any reason unless specifically ordered by the Court. (Item number 32 in Conditions of Community Supervision).

Milam’s court-appointed counsel on appeal, Melissa Martin, has filed a

motion to withdraw from representing Milum and an Anders brief in which she

opines that no valid grounds for appeal exist and that Milum’s appeal is frivolous.

See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); In re

K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Martin

did not address the conditions of community supervision in her brief. Specifically,

Martin did not address whether any of the conditions are overbroad or unrelated to

the offense. Milum has filed a pro se response arguing ineffective assistance of

counsel in regards to informing him of possible sexual offender registration

requirements. The State waived its opportunity to file an appellee’s brief.

-2- When this Court receives an Anders brief from an appellant’s court-

appointed attorney who asserts that no arguable grounds for appeal exist, we must

determine that issue independently by conducting our own review of the entire

record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing

court—and not counsel—determines, after full examination of proceedings,

whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.

Crim. App. 1991) (same); Martin v. Dep’t of Family & Protective Servs., No. 01-

07-00842-CV, 2009 WL 276759, at *1 (Tex. App.—Houston [1st Dist.] Feb. 5,

2009, pet. denied) (stating that reviewing court must conduct independent review

of entire record to determine whether arguable grounds for appeal exist). An

arguable ground for appeal is a ground that is not frivolous; it must be an argument

that could “conceivably persuade the court.” See In re Schulman, 252 S.W.3d 403,

407 n.12 (Tex. Crim. App. 2008) (quoting McCoy v. Court of Appeals of Wisc.,

Dist. I, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)). However, “[w]hen we

identify issues that counsel on appeal should have addressed but did not, we need

not be able to say with certainty that those issues have merit; we need only say that

the issues warrant further development by counsel on appeal.” Wilson v. State, 40

S.W.3d 192, 200 (Tex. App.—Texarkana 2001, no pet.) (citing Wilson v. State,

976 S.W.2d 254, 257 n.4 (Tex. App.—Waco 1998, no pet.)). -3- Our role in this Anders appeal is limited to determining whether arguable

grounds for appeal exist. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim.

App. 2005). If we determine that arguable grounds for appeal exist, we must abate

the appeal and remand the case, and Milum is entitled to have new counsel address

the merits of the issues raised. Id. “Only after the issues have been briefed by new

counsel may [we] address the merits of the issues raised.” Id.

In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and

Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record and appointed

counsel’s Anders brief. The record on appeal suggests that there are arguable

grounds for appeal with regards to the conditions of community supervision

applied to Milum.

We abate this appeal and remand the cause for the trial court to appoint

new appellate counsel to represent Milum within 30 days of the date of this

order. The newly appointed counsel’s brief will be due 30 days from the date

counsel is appointed, regardless of whether this Court has yet reinstated the

appeal, and counsel is required to:

(1) fully investigate and make a conscientious examination of the record;

(2) address all arguable, non-frivolous grounds for appeal in a brief on the

merits; (3) specifically address the issue of whether any or all the 41 conditions of

community supervision imposed by the trial court are invalid. See, e.g.

U.S. v. Tang, 718 F.3d (5th Cir. 2003); Barton v. State, 21 S.W.3d 287,

289 (Tex. Crim. App. 2000); Mitchell v. State, 420 S.W.3d 448 (Tex.

App.—Houston [14th Dist.] 2014); TEX. CODE CRIM. P. art. 42.12 §11

(a); cf. Doughty v. State, 2014 WL 5465697 (Tex. App.—Houston [1st

Dist.] October 28, 2014, no pet.);

(4) whether failure to object to any of the conditions of community

supervision constituted ineffective assistance of counsel;

(5) address any other grounds counsel deems appropriate.

See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (“The court’s

duty is to determine whether there are any arguable grounds and if there are, to

remand to the trial court so that new counsel may be appointed to brief the

issues.”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (“If

grounds are deemed arguable, the Court of Appeals then must abate the appeal and

remand the case to the trial court with orders to appoint other counsel to present

those and any other grounds that might support the appeal.”).

-5- We further order that a supplemental clerk’s record be filed with this court

containing the name, address, and state bar number of the new counsel appointed

within 30 days of the date of this order.

We grant counsel Melissa Martin’s motion to withdraw.

The appeal is abated, treated as a closed case, and removed from this

Court’s active docket. The appeal will be reinstated on this Court’s active docket

when Milum’s brief is filed in this Court.

It is so ordered.

Judge’s signature: _____/s/ Harvey Brown X Acting individually

Panel consists of Justices Massengale, Brown, and Huddle.

Date: November 20, 2014

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