      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00531-CR



                                   Robert Milligan, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
         NO. 9010837, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found appellant Robert Milligan guilty of five counts of aggravated sexual

assault and one count of burglary of a habitation. For each count, the jury assessed a term of life

imprisonment.

                Appellant’s court-appointed counsel filed a brief in which he states that the appeal

is frivolous. See Anders v. California, 386 U.S. 738 (1967). Counsel reached this conclusion by

applying the so-called DeGarmo doctrine, by which a defendant who testified at the punishment

stage and admitted his guilt was deemed to have waived any error at the guilt-innocence stage.

DeGarmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985). This doctrine has been

largely, if not entirely, overruled. Leday v. State, 983 S.W.2d 713, 725 (Tex. Crim. App. 1998);

Gutierrez v. State, 8 S.W.3d 739, 745 (Tex. App.—Austin 1999, no pet.). Counsel’s conclusion

that the appeal is frivolous is therefore without legal foundation.
               The appeal is abated. Counsel for appellant, Mr. William B. Mange, is ordered

to tender a new brief based on an examination of the record and legal analysis that takes into

account the opinions in Leday, Gutierrez, and others decided since the demise of the DeGarmo

doctrine. Counsel shall tender this brief for filing no later than July 29, 2005. The filing of the

State’s brief and resubmission of the appeal will follow as provided by the appellate rules.




                                             ___________________________________________

                                             Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Filed: June 17, 2005

Do Not Publish




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