                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                    ORDER OF ABATEMENT

Cause Number:        01-18-00715-CR
Trial Court:         180th District Court of Harris County
Trial Court Cause
Number:              1552202
Style:               Fredrick Pierre Cooks v. The State of Texas


       Appellant was charted with the third-degree felony offense of evading arrest or detention
with a motor vehicle. The indictment alleged that Fredrick Pierre Cook (not Cooks) fled, using a
motor vehicle, from a peace officer attempting to lawfully arrest or detain him. The indictment,
however, does not allege all essential elements of the offense. See TEX. PENAL CODE
§ 38.04(b)(2)(A) (evading arrest or detention). Specifically, the indictment does not include the
element addressing Appellant’s previous conviction(s) for evading arrest. Id. Appellant pleaded
not guilty and was tried before a jury. The State did not introduce any evidence of the prior
evading-arrest convictions at the guilt-innocence phase of trial. Furthermore, the jury charge did
not ask the jury to find whether Appellant had been previously convicted of evading arrest.
Based on this charge, the jury found Appellant “guilty as alleged in the indictment.”

        Appellant’s appointed counsel has moved to withdraw from this appeal and filed a brief
concluding that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967).
Under Anders, if appointed counsel concludes after reviewing the record and applicable law that
the appeal is without merit, counsel must advise the court, file a motion to withdraw, and file a
brief discussing any issue that might arguably support the appeal. See id.; Kelly v. State, 436
S.W.3d 313, 318 (Tex. Crim. App. 2014). The appellate court must then perform an independent
examination of the record and the law to determine whether the appeal is frivolous. See Anders,
386 U.S. at 744. The question before us in not who will ultimately prevail but instead whether
any non-frivolous issue exists.

        Based on our independent review of the record and applicable law, we conclude that non-
frivolous issues may exist. First, the jury convicted Appellant without determining that Appellant
had been previously convicted of evading arrest, which was an element of the charged offense.
See Calton v. State, 176 S.W.3d 231, 237 (Tex. Crim. App. 2005) (en banc) (holding that a prior
evading-arrest conviction is an essential element under Section 38.04(b)(2)(A) and must be
proved at the guilt-innocence phase of trial). Second, there appears to be a discrepancy in the
name used to identify Appellant in the indictment, judgment, and other court documents that has
not been addressed. Accordingly, we strike counsel’s Anders brief, deny counsel’s motion to
                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                     ORDER OF ABATEMENT

withdraw, and abate this appeal. Appellant’s appointed appellate counsel is ordered to brief the
non-frivolous issues, the first in light of the decision in Calton, and this brief will be due
November 27, 2019. This appeal will be reinstated after the brief is received by this Court.

       It is so ORDERED.



Judge's signature: /s/ Sarah Beth Landau
                           Acting individually       Acting for the Court


Date: November 7, 2019
