                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00186-CR
                                 ________________________

                            ERIC URIAH CARRILLO, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 181st District Court
                                      Randall County, Texas
                  Trial Court No. 23,880-B; Honorable John B. Board, Presiding


                                         February 24, 2014

                ORDER ON MOTION FOR EXTENSION OF TIME
                    AND RESPONSE TO ANDERS BRIEF
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.

      Following a plea of not guilty, Appellant, Eric Uriah Carrillo, was convicted by a

jury of robbery, twice enhanced,1 and sentenced to forty-five years confinement and a

$10,000 fine. Notice of Appeal was filed on June 7, 2013, the appellate record was

complete on August 20, 2013, and Appellant’s brief was due September 19, 2013. On


      1
          TEX. PENAL CODE ANN. § 29.02 (West 2011) and § 12.42(b) (West Supp. 2013).
September 18, 2013, court-appointed counsel, W. Brooks Barfield, Jr., filed a Motion to

Withdraw supported by an Anders2 brief certifying the appeal was without merit and he

could not advance any grounds for reversal of Appellant’s conviction. By letter dated

September 24, 2013, this Court notified Appellant that he had until October 24, 2013, to

file a pro se response.


                                  APPELLATE PROCEDURAL HISTORY


       On October 24, 2013, David Martinez filed a Motion to Substitute Counsel

together with a Motion for Extension of Time for Filing Appellant’s Response to Anders

Brief. Mr. Martinez represented he had been retained by Appellant and needed time to

review the appellate record and file a “brief.” By letter dated October 30, 2013, this

Court acknowledged Mr. Martinez’s motions but advised him that considering the

procedural status of the appeal, his motions would be “taken under advisement pending

the filing and consideration of Appellant’s pro se response.”


       On October 28, 2013, Appellant, proceeding pro se, filed a document giving

notice of his intent to file a “pro se brief or response” to the Anders brief filed by Mr.

Barfield and requesting an extension of time in which to do so. Appellant was granted

until December 2, 2013, to file his response. A subsequent extension was granted until

January 6, 2014.


       On January 3, 2014, this Court received an inquiry from Appellant asking this

Court to allow Mr. Martinez to substitute as his counsel and to allow him to file a brief on

his behalf. Again considering the nature of an Anders appeal and the expiration of time

       2
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

                                                     2
to file a merits brief, this Court issued a letter on January 10, 2014, construing Mr.

Martinez’s motion to substitute as a notice of appearance per Rule 6.2 of the Texas

Rules of Appellate Procedure and granting an extension of time until February 7, 2014,

in which Appellant could file a pro se response.3 The letter provided, “Mr. Martinez is

permitted to assist Appellant in preparing his response” and noted that no further

extensions of time would be granted absent exigent circumstances.


        On February 17, 2014, after the deadline for filing a response to the Anders brief

had expired, Mr. Martinez filed documents entitled Motion for Extension of Time for

Filing Response to Ander’s [sic] Brief and Appellant’s Response to Ander’s [sic] Brief.

By the motion, counsel represents he had not previously requested an extension when

in fact he filed a motion for extension on October 24, 2013, signed by him and not by

Appellant acting in a pro se capacity.              Counsel then provides as grounds for the

subsequent extension request what he characterizes as exigent circumstances—

formatting issues with a new computer, inability to locate his research and notes, and an

illness on February 10, 2014—after the February 7th deadline.


        Furthermore, the “response” filed by Mr. Martinez on behalf of Appellant actually

purports to be a brief on the merits challenging the sufficiency of the evidence to

support Appellant’s robbery conviction.              The document even includes a “prayer”

requesting that this Court determine the evidence to be insufficient and dismiss the

case. The response was submitted through and electronically signed by Mr. Martinez.

It is not a pro se response to the Anders brief filed by Mr. Barfield. As such, it is in

        3
          At this point the Court considers Mr. Barfield to be Appellant’s lead counsel and Mr. Martinez to
be an attorney “other than lead counsel” who has entered an appearance on behalf of the Appellant. See
TEX. R. APP. P. 6.2.

                                                    3
contravention to this Court’s directive for Mr. Martinez to assist Appellant in preparing a

pro se response to the Anders brief filed by Mr. Barfield.


                                        ANALYSIS


       Appellant’s decision to retain appellate counsel while represented by court-

appointed counsel who has already filed an Anders brief in support of a motion to

withdraw and after the deadline for filing a merits brief does not dictate an appellate

court’s review of an Anders appeal.        That procedure is mandated by Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and its progeny. When

faced with an Anders appeal and a motion to withdraw, an appellate court is tasked with

assuring that counsel has provided his client with a diligent and thorough search of the

record for any arguable claim that might support a plausible basis for reversal of the

client’s conviction and determine whether counsel has correctly concluded the appeal is

frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct.

1895, 100 L.Ed.2d 440 (1988). The court must then make a separate inquiry and “itself

conduct a full examination of all the proceeding[s]” to decide whether the appeal is

frivolous. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).


       An Anders brief that is well taken does not involve the substitution of counsel.

See Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006). This Court will review

Mr. Barfield’s Anders brief and make an independent examination of the proceedings to

determine whether the Anders brief is well taken. If this Court agrees with Mr. Barfield’s

evaluation that no non-frivolous issues exist, his motion to withdraw will be granted and




                                             4
Appellant’s conviction will be affirmed.4 See Penson, 488 U.S. at 80. If, however, this

Court finds an arguable issue, Mr. Barfield will be discharged and Appellant will be

entitled to new representation. In the absence of the appearance of new lead counsel,

this Court will follow established procedures to abate the appeal and remand the cause

to the trial court for a determination on the issue of counsel. See In re Schulman, 252

S.W.3d 403, 409 (Tex. Crim. App. 2008).


                                            CONCLUSION


        Mr. Martinez’s Motion for Extension of Time for Filing Response to Ander’s [sic]

Brief is denied and Appellant’s Response to Ander’s [sic] Brief is stricken. The appeal

will proceed on the record by submission without oral argument.


        It is so ordered.


                                                        Per Curiam


Do not publish.




        4
           The Fourteenth Amendment guarantees a criminal appellant the right to counsel on a first
appeal as of right. Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
However, it does not demand that States require appointed counsel to press upon their appellate courts
wholly frivolous arguments. Penson, 488 U.S. at 84. An attorney, whether appointed or retained, is
under an ethical obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252 S.W.3d at 407
(citing McCoy, 486 U.S. at 436).

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