Rodney Milum v. State

Opinion

Order issued June 18, 2015

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 Case No. 1347034

ORDER FOR SUPPLEMENTAL BRIEFING

Rodney Milum was convicted of sexual assault of a child1 and sentenced to

two years’ incarceration suspended in favor of eight years’ community supervision.

The trial court imposed 41 conditions of community service, including:

1 TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011). 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 the service and you must depart the place of worship immediately following the service. You are not to enter any area of the place of worship where children’s classes are being conducted or where children play or engage [in] other activities beginning 10/18/2013.

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. You may not view, receive, download, transmit, or possess pornographic material on any computer. You are not to possess pornographic software, images, or material on any hard drive, [computer disk], or magnetic tape.

The record contains no objection to any conditions of community supervision.

We have abated this appeal twice. We first abated after Milum’s first

appellate counsel filed a motion to withdraw from representation and an Anders

brief finding no arguable grounds for appeal. 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.). As required by Anders, we independently

reviewed the record and concluded that arguable grounds for appeal existed. See

Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford v. State, 813 S.W.2d 503, 511

(Tex. Crim. App. 1991). Accordingly, we abated, remanded for appointment of

new appellate counsel, and ordered new briefing. See Bledsoe v. State, 178 S.W.3d

824, 827 (Tex. Crim. App. 2005).

We ordered new appellate counsel to:

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

2 (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.

Milum’s second appellate attorney filed a brief addressing these issues;

however she did so in an Anders brief finding no arguable grounds for appeal; she

also moved to withdraw from representation. See Anders, 386 U.S. at 744, 87 S.

Ct. at 1400; In re K.D., 127 S.W.3d at 67. We again independently reviewed the

record and determined that arguable grounds for appeal existed. Accordingly, we

once again abated, remanded for appointment of new appellate counsel, and

ordered new briefing. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.

2005).

Our second abatement order included the same five requirements as the

first.2 But the merits brief filed by Milum’s third appellate counsel does not address

2 We also added a sixth requirement: to examine “whether the principle of waiver applies where there is a failure to object to or preserve error in regards to an unconstitutional order.” 3 ineffective assistance of counsel, as required by our order. Accordingly, it does not

comply with the second abatement order. Further, it does not address an issue

determined by this Court to be an arguable ground for appeal.

When we discover arguable grounds for appeal, abate, and remand for the

appointment of new appellate counsel, new counsel should “present all arguable

grounds for appeal.” See Garcia v. State, 01-05-00718-CR, 2007 WL 441716, at

*1 (Tex. App.—Houston [1st Dist.] Feb. 8, 2007, no pet.) (mem. op., not

designated for publication) (emphasis added); see Banks v. State, 341 S.W.3d 428,

430 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Although we do not become

advocates for the defendant, “if the Court of Appeals does find that there are

arguable grounds, the appellate court must then guarantee appellant's right to

counsel by ensuring” appellate representation. Stafford, 813 S.W.2d at 511; accord

Anders, 386 U.S. at 744, 87 S.Ct. at 1400 (“[I]f [an appellate court] finds any of

the legal points arguable on the merits (and therefore not frivolous) it must, prior to

decision, afford the indigent the assistance of counsel to argue the appeal.”). “Only

after the issues have been briefed by new counsel may the court of appeals address

the merits of the issues raised.” Bledsoe, 178 S.W.3d at 827 (Tex. Crim. App.

4 Conclusion

We order Milum to file a supplemental brief addressing whether the failure

to object constitutes ineffective assistance of counsel and any other unbriefed

arguable grounds for appeal. Milum’s amended brief will be due ten days from the

date of this order. The State’s response brief will be due thirty days from the date

Milum’s brief is filed.

It is so ORDERED.

Judge’s signature: /s/ Harvey Brown  Acting individua Acting for the Court

Panel consists of Justices Jennings, Bland, and Brown.

Date: June 17, 2015