Roger Martin Bradford v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-15-00192-CR

ROGER MARTIN BRADFORD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 15-0152X

Before Morriss, C.J., Moseley and Burgess, JJ. ORDER Roger Martin Bradford was convicted by jury of the third degree felony offense of driving

while intoxicated, third or more, and was sentenced to four years’ confinement. See TEX. PENAL

CODE ANN. § 49.09(b) (West Supp. 2015). Bradford appeals.

Bradford’s appellate attorney filed a brief setting out the procedural history of the case and

summarizing the evidence elicited during the course of the trial court proceedings. After counsel’s

professional evaluation of the record, counsel has concluded that there are no arguable grounds to

be advanced. Bradford’s counsel sent a copy of the brief to Bradford, provided him with a copy

of the record, and advised Bradford of his right to review the record and file a pro se response,

which Bradford has not done. Under the authority of Anders v. California, 386 U.S. 738, 743–44

(1967); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1981); and High v. State, 573

S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978), counsel seeks to withdraw from his

representation of Bradford.

This Court is required to conduct our own review of the entire record when we receive an

Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for

appeal exist. Anders, 386 U.S. at 744; Stafford, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). An

appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy

v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 438 n.10 (1988). An appeal is not wholly

frivolous when it is based on “arguable grounds.” Stafford, 813 S.W.2d at 511.

Our independent review of the record indicates that Bradford, although indigent, was

assessed attorney fees in the judgment of conviction. This is an arguable ground for appeal.

2 Counsel’s brief does not address this arguable ground. Additionally, our independent review of

the record indicates that, although a motion to amend the indictment was granted, an amended

indictment reflecting the correct offense date was not filed. Consequently, the charge of the court

(which does reflect the correct offense date) does not track the indictment. This issue was not

addressed in the brief filed by Bradford’s counsel. Finally, our independent review of the record

indicates that both jury verdicts emanated from the Harrison County Court at Law, while the

judgment of conviction emanated from the 71st Judicial District Court of Harrison County. This

issue was not addressed in the brief filed by Bradford’s counsel.

“When 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, order). In such a situation, we “must then guarantee appellant’s right to

counsel by ensuring that another attorney is appointed to represent appellant on appeal.” Stafford,

813 S.W.2d at 511 (citing Anders, 386 U.S. at 744).

We, therefore, grant current counsel’s motion to withdraw, and we abate this case to the

trial court for the appointment of new appellate counsel. The appointment is to be made within

ten days of the date of this order. New appellate counsel is to address the issues presented here,

as well as any other issues that warrant further development on appeal.

IT IS SO ORDERED.

BY THE COURT

Date: June 16, 2016