                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00091-CR


JAMES DANIEL HARRIS                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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     MEMORANDUM OPINION 1 AND ORDER OF ABATEMENT

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      A jury found Appellant James Daniel Harris guilty of possession of less

than 200 but more than 4 grams of methamphetamine. Thereafter, Appellant

pleaded true to an enhancement allegation, and the jury assessed his

punishment at life confinement. Appellant filed a notice of appeal and a motion

for new trial, arguing that he received ineffective assistance of counsel and that



      1
       See Tex. R. App. P. 47.4.
his statement was unlawfully coerced. After holding a hearing, the trial court

denied the motion for new trial.

      Appellant’s appointed appellate counsel has filed a motion to withdraw,

accompanied by a thorough brief in support of that motion. In his cogent brief,

counsel states that in his professional opinion, this appeal is frivolous and without

merit. Counsel’s brief and motion meet the requirements of Anders v. California,

386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of

the record demonstrating why counsel concluded there are no arguable grounds

for relief. Appellant filed a brief and a supplemental brief in response to appellate

counsel’s evaluation, raising nine points that he asserts “should warrant further

development by another counsel on appeal.” The State filed a letter brief stating

that it agreed with appellate counsel’s determination that the appeal is wholly

frivolous.

      Once an appellant’s court-appointed attorney files a motion to withdraw on

the grounds that an appeal is frivolous and fulfills the requirements of Anders, we

have a supervisory obligation to undertake an examination of the proceedings.

See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Banks v.

State, 341 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Mays

v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this

evaluation, we consider the record, the arguments raised in the Anders brief, and

issues Appellant points out in his pro se briefs. See United States v. Wagner,

158 F.3d 901, 902 (5th Cir. 1998); In re Schulman, 252 S.W.3d 403, 409 (Tex.


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Crim. App. 2008). We are not to address the merits of the issues Appellant

raises in his pro se briefing because to do so would deprive Appellant “of the

meaningful assistance of counsel.” 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 to the trial court for appointment of

new appellate counsel. See Schulman, 252 S.W.3d at 409; see also Smith v.

Robbins, 528 U.S. 259, 279, 120 S. Ct. 746, 761 (2000). But if we determine that

the appeal is wholly frivolous, we should dismiss the appeal. See Schulman, 252

S.W.3d at 409; see also Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Only after

our independent review and after our decision between abatement or dismissal is

made may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488

U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

      After our independent review, we conclude that there are “arguable”

appellate issues in this case. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see

Smith, 528 U.S. at 285, 120 S. Ct. at 764. For instance, the trial court denied

Appellant’s request to have new trial counsel appointed even though Appellant

had stated that his appointed trial counsel, Price Smith, had failed to properly

communicate the charge and punishment range Appellant faced. Smith admitted

to the trial court that the attorney-client relationship was “broken” and that

Appellant had received “some . . . bad information” (although not from Smith)

regarding the possible punishment range he faced.        Additionally, the State

contends that Appellant’s arguments that he received ineffective assistance of


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counsel cannot be addressed on direct appeal. However, the trial court held a

hearing on Appellant’s motion for new trial and specifically received evidence on

whether Smith was effective.         Indeed, it appears Smith was unaware of or

unwilling to pursue the motion to suppress that Appellant’s retained counsel had

filed. 2       While we acknowledge that the trial court probably resolved these

disputes in testimony by making credibility determinations, this record evidence

arguably could provide grounds to pursue a claim of ineffective assistance of trial

counsel. It further could be argued that the evidence was insufficient to link

Appellant to the contraband. 3 See Poindexter v. State, 153 S.W.3d 402, 405–06

(Tex. Crim. App. 2005). Finally, we note that appellate counsel did not have the

entire record when he filed his Anders brief. Specifically, we abated this appeal

to determine the completeness of the reporter’s record regarding evidence the

State used during punishment. The trial court held a hearing on the issue, but

appellate counsel did not have the benefit of this record on abatement in making

his determination of the frivolity of the appeal. This abatement record arguably

could prove fruitful for appeal purposes. See Wilson v. State, 366 S.W.3d 335,

340 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“Again, we need not say, with


           2
       Appellant retained trial counsel who was allowed to withdraw after
Appellant refused a plea-bargain agreement and failed to pay counsel for the
costs of proceeding to a jury trial.
           3
         Although Appellant gave a statement admitting possession of the
methamphetamine, he asserted in his motion for new trial that the statement was
illegally coerced.


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certainty, that any complaint arising from the fact that the reporter’s record has

been lost or destroyed will prove to be meritorious, but only that such an issue

warrants further development by counsel on appeal.”); cf. Mason v. State, 65

S.W.3d 120, 120 (Tex. App.—Amarillo 2001, no pet.) (denying motion to

withdraw and striking Anders brief when counsel did not have reporter’s record

from voir dire because “one cannot say that there is no arguable merit to an

appeal based on the review of an incomplete record”). 4

      We stress that this is not an exhaustive list of arguable issues that could

be raised on appeal and, further, that we have not determined that any of these

arguments have merit.      We conclude that appellate counsel has met his

professional obligations under Anders and grant his motion to withdraw. But

based on the presence of arguable appellate issues, we abate the appeal and

remand the case to the trial court to appoint a new appellate attorney with

directions to file a brief on the merits. See Schulman, 252 S.W.3d at 409. The

trial court shall make the appointment and ensure that a supplemental record is

filed in this court no later than 28 days from the date of this order. Once the

supplemental record is filed in this court, we will automatically reinstate the

appeal and set a new briefing schedule.



      4
       Because the record on abatement was made after appellate counsel filed
his Anders brief, we cannot say that appellate counsel failed to diligently search
the record. Thus, denying the motion to withdraw would not be appropriate as it
was in Mason.


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                                       PER CURIAM

PANEL: GABRIEL, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013




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