                                   IN THE
                           TENTH COURT OF APPEALS

                                   No. 10-13-00291-CR

JOSEPH ROBERT MCELWAIN, JR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 249th District Court
                               Johnson County, Texas
                               Trial Court No. F46929


                                         ORDER


       Joseph Robert McElwain, Jr. was convicted of the offense of burglary of a

habitation and sentenced to 15 years in prison. TEX. PEN. CODE ANN. § 30.02(c)(2) (West

2011). Counsel for McElwain has filed a motion to withdraw as counsel and a brief in

support of his motion pursuant to Anders v. California. See Anders v. California, 386 U.S.

738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

       The brief submitted by McElwain's court-appointed counsel states his

professional opinion that there are no arguable grounds for reversal on appeal and,
therefore, that any appeal would lack merit. See Anders, 386 U.S. at 744. McElwain's

counsel sent a copy of the brief to McElwain, requested permission to withdraw from

the case, and notified McElwain of his right to review the record and file a pro se

response, which McElwain has not done.

       When this Court receives an Anders brief from a defendant'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. Anders, 386

U.S. at 744 (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) (citing same passage from Anders). An appeal is

"wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v.

Court of Appeals, 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).

Arguments are frivolous when they "cannot conceivably persuade the court." McCoy,

486 U.S. at 436. An appeal is not wholly frivolous when it is based on "arguable

grounds." Stafford, 813 S.W.2d at 511.

       At this time, our role in this Anders appeal is limited to determining whether

arguable grounds for appeal exist. Id. at 827. If we determine that an arguable ground

for appeal exists, we must abate the appeal and remand the case to the trial court to

allow the court-appointed attorney to withdraw. See id. The trial court must then

appoint another attorney to present all arguable grounds for appeal. See id. We do not


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rule on the ultimate merits of the issues raised by a defendant in a pro se response, if

any, at this juncture. Id. Rather, if we determine that there are arguable grounds for

appeal, McElwain is entitled to have new counsel address the merits of all 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.

        Our independent review of the record indicates that McElwain, although

indigent, was assessed attorney's fees in the judgment of conviction. Based on our

independent review of the record, we find that this is an arguable ground for appeal.

See Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Wiley v. State, 390 S.W.3d 629,

630 (Tex. App.—Waco 2012), aff’d on other grounds, 410 S.W.3d 313 (Tex. Crim. App.

2013). See also Evans v. State, 933 S.W.2d 334, 335-336 (Tex. App.—Waco 1996, order)

(reformation of the judgment constitutes “relief,” thus Anders appeal abated for the

appointment of new counsel).1 Court-appointed counsel's brief does not address this

arguable ground.

        Therefore, we abate this appeal to the trial court for the entry of an order

withdrawing the appointment of present counsel and the appointment of new counsel.

A copy of the order appointing new counsel shall be forwarded to the Clerk within ten

1 There is substantial disagreement among the various courts of appeals whether this Court can modify
the judgment and affirm or must abate to have new counsel appointed to brief this and any other issue
identified by the new counsel. Further, we recognize abatement makes it almost impossible for this split
of authority among the courts of appeals to be presented, reviewed, and resolved by the Court of
Criminal Appeals. But see Ferguson v. State, No. 10-13-00173-CR, 2014 Tex. App. LEXIS ____ (Tex. App.—
Waco March 6, 2014, no pet. h.) (publish) (also issued on this date; reformation of a judgment affirmed in
an Anders appeal).

McElwain v. State                                                                                  Page 3
days of the date of this abatement order. Only after new counsel is appointed and the

issue identified in this order, as well as any other issues that counsel wishes to advance

in the brief on the merits, are addressed will we reach the merits of this appeal. Upon

receipt of the appointment of new counsel, we will reinstate the appeal and new

counsel will then have thirty days to file a brief unless a motion for extension for good

cause is filed and granted by this Court pursuant to the Rules of Appellate Procedure.




                                         PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Scoggins dissenting)
Appeal abated
Order issued and filed March 6, 2014
Publish




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