GRANT and Opinion Filed March 18, 2020




                                   S   In the
                          Court of Appeals
                   Fifth District of Texas at Dallas
                               No. 05-19-00463-CR

           GERALD JEFFERSON MUNOZ MONTANO, Appellant
                               V.
                   THE STATE OF TEXAS, Appellee

               On Appeal from the Criminal District Court No. 7
                            Dallas County, Texas
                    Trial Court Cause No. F18-00457-Y

                       MEMORANDUM OPINION
          Before Chief Justice Burns, Justice Myers, and Justice Carlyle
                           Opinion by Justice Carlyle
      Gerald Jefferson Munoz Montano was charged with engaging in organized

criminal activity by committing murder with the intent to establish, maintain, or

participate in a combination or in the profits of a combination or as a member of a

criminal street gang. Following a four-day trial, a jury found appellant guilty. After

hearing further evidence and deliberating over the course of a fifth day, the jury

sentenced him to 65 years in prison.

      The trial court appointed an attorney to represent appellant on appeal.

Appellant’s appointed attorney filed a brief concluding that Mr. Montano’s appeal
from the judgment of conviction that was the result of a five-day jury trial is wholly

frivolous, without merit, and without arguable grounds to advance. See Anders v.

California, 386 U.S. 738 (1967); Gainous v. State, 436 S.W. 2d 137, 138 (Tex. Crim.

App. 1969). In the brief, the attorney represents having notified appellant by letter

of his right to review the record and file a pro se response. See Kelly v. State, 436

S.W.3d 313, 319–20 (Tex. Crim. App. 2014).

        But, though the attorney listed the correct unit name for Mr. Montano on the

letter informing him of the Anders brief, the address the attorney listed is for a place

on the Bolivar Peninsula, the sliver of land separating Galveston Bay from the Gulf

of Mexico, not a place the Texas Department of Criminal Justice houses any

prisoners. And, the TDCJ identification number the attorney listed corresponds to

another man;1 thus, it is unlikely Mr. Montano has received the information the

attorney claims to have sent him. We also note we have received the attorney’s

motion to withdraw but that it was filed more than a week after the Anders brief.2

        A brief review of the clerk’s and reporter’s records demonstrates that the

attorney did not address any of the evidence admitted during trial, including exhibits



    1
       The TDCJ number corresponds to another of the attorney’s appellate clients, in an appeal from a
judgment of conviction and sentence arising, like this one, from a jury trial. The attorney filed an Anders
brief in that case as well.
    2
      Contrary to specific direction from the Court of Criminal Appeals, the attorney did not immediately
file a motion to withdraw or inform Mr. Montano of his right to file a pro se petition for discretionary
review should we conclude his appeal is frivolous. See Kelly, 436 S.W.3d at 318 & n.15; In re Schulman,
252 S.W.3d 403, 408 (Tex. Crim. App. 2008) (“the defense attorney is required to file a motion to withdraw
at the same time he files an Anders brief”).
                                                   –2–
currently missing from the reporter’s record. Indeed, the attorney provides only two

sentences of what could even arguably be called analysis when discussing the

evidentiary sufficiency. Though there may be other arguable issues, we conclude the

record presents at least a non-frivolous argument that the evidence did not

sufficiently support the conviction.

        We note the conviction was based, in part, on accomplice-witness testimony,

another potential avenue for non-frivolous argument in this appeal. Also, the

attorney did not discuss any of the numerous objections and rulings made during

voir dire and the multiple days of trial. And the discussion of punishment refers not

only to an incorrect punishment range but to the wrong section of the penal code.3

        After reviewing the brief, we are concerned about whether appellant’s

appointed attorney made a thorough and professional evaluation of the record. See

Anders, 386 U.S. at 744; Jeffery v. State, 903 S.W.2d 776, 780 (Tex. App.—Dallas

1995, no pet.). We have little or no confidence in the conclusion that appellant’s

appeal is “wholly frivolous.” See High v. State, 573 S.W. 2d 807, 811 (Tex. Crim.

App. [Panel Op.] 1978) (holding that an Anders brief filed in a contested case must

describe any objections raised and ruled on during trial and “discuss either why the

trial court’s ruling was correct or why the appellant was not harmed by the ruling of

the trial court.”).

    3
     Instead of citing the punishment section for Penal Code section 71.02, “Engaging in Organized
Criminal Activity,” which is found in subsection (b), the attorney cites Penal Code section 71.023(b), which
addresses the punishment for a different crime, “Directing Activities of Criminal Street Gangs.”
                                                   –3–
       We therefore strike the Anders brief filed by appellant’s appointed attorney

and remove the attorney from the appeal. By separate order, we will abate the case

so the trial court can appoint new appellate counsel to represent appellant. New

appellate counsel should investigate the record and file a merits brief within the

deadlines given in the court’s order. See In re Schulman, 252 S.W.3d at 408–09 (“If

the court of appeals decides that there are any colorable claims for appeal, it will:

(1) grant the original attorney’s motion to withdraw; and (2) abate the case and send

it back to the trial court to appoint a new attorney with directions to file a merits

brief.”).



                                           /Cory L. Carlyle/
                                           CORY L. CARLYLE
                                           JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
190463F.U05




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