                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00116-CR


GABRIEL ARMANDARIZ                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
                      TRIAL COURT NO. 10506

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      OPINION AND ORDER OF ABATEMENT AND REMAND
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      After a lengthy jury trial, Appellant Gabriel Armandariz was convicted of

capital murder and sentenced to life without parole. Armandariz timely filed a

notice of appeal, and appellate counsel was appointed for him by the trial court.

Armandariz’s court-appointed appellate counsel filed a motion to withdraw and a

brief in support of that motion. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967). Armandariz then filed a motion in this court asking that we grant

him access to the appellate record. We granted that motion and directed the trial
court clerk to make the appellate record available to Armandariz and provide us

notification when the appellate record was made available to him. See Kelly v.

State, 436 S.W.3d 313, 320–21 (Tex. 2014) (discussing appellate court’s

responsibility to ensure that appellate record is made available to appellant).

      While the trial court clerk provided us notice certifying that all documents

contained in the appellate record were made available to Armandariz,

Armandariz wrote us to complain that he did not receive certain exhibits

contained in the appellate record, including certain exhibits that were electronic

files put on disks. We then ordered the trial court clerk to make the alleged

missing portions of the record available to Armandariz. We stated in our order

that “it appears that several of the exhibits that [Armandariz] seeks are electronic

files that were put on disks,” noted that this may “present some added difficulty”

in ensuring that Armandariz has access to the record, and referenced Kelly’s

offered solution to this difficulty in that “copies of electronic files can be sent to

the warden of [Armandariz’s] unit with explicit instructions to provide [Armandariz]

with supervised access to a computer upon which to review said files.” See id. at

321 n.24 (“Several of the courts of appeals . . . have expressed concerns about

how electronic copies can be made available to pro se appellants who are

incarcerated. It occurs to us that . . . courts of appeals could order the trial-court

clerk or its own clerk to send an electronic copy of the record to the warden of the

appellant’s unit with explicit instructions to provide the appellant with supervised

access to a computer upon which to review it or print it out.”).


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       The trial court clerk then notified us that she had mailed the alleged

missing portions of the record—printouts of the paper documents and a disk

containing audio and video exhibits—to both Armandariz and the warden of his

prison unit.   The trial court clerk’s letter to the warden provided the specific

instruction that “Mr. Armandariz is to have supervised access to a computer upon

which to review the above mentioned audio/video exhibits.” The trial court clerk

has subsequently notified us that she received a letter from Gaye Karriker, the

Unit Access to Courts Supervision of the Coffield Prison Unit, in which Karriker

told the trial court clerk, “I am returning the CD containing audio and video

exhibits in reference to the above named/numbered offender. All other contents

of the package have been delivered this date. TDCJ offenders are not permitted

access to CD’s nor computer equipment with which to view the contents of the

CD.”

       Although the trial court clerk diligently complied with our order, the record

does not reflect, and we are not satisfied, that Armandariz has received access

to the complete appellate record. See id. at 320 (“Once the appellant has filed

his motion to make the appellate record available with the court of appeals, we

think that the onus should shift to the court of appeals to ensure that, one way or

another, this request is satisfied.”). As such, we may not move forward with

determining the validity of the Anders brief filed by Armandariz’s court-appointed

appellate counsel. See id. (“[T]he appellate court may not rule on the motion to




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withdraw and the validity of the Anders brief until the appellant has been given

access to, and an adequate opportunity to review the appellate record.”). 1

      Because Armandariz has not received access to the complete appellate

record, we abate the appeal and remand the cause to the trial court. Upon

remand, the trial court shall within fourteen days of the date of this opinion

either: (1) appoint new appellate counsel for Armandariz;2 or (2) bench warrant

Armandariz back to the trial court so that he has an opportunity to review the CD

that was returned by his prison unit. Within twenty-one days of the date of this

opinion, the trial court shall notify this court of its compliance by filing a

supplemental clerk’s record and/or a supplemental reporter’s record of any

proceedings held in the trial court including any order signed by the trial court.

Upon receipt of supplemental records, this court will take appropriate action to

reinstate this appeal.


      1
       Armandariz has filed a pro se response to the Anders brief; one of the
complaints he raises in it is his lack of access to the complete appellate record in
preparing his response. Thus, despite Armandariz’s pro se response, the issue
of his lack of access to the complete appellate record remains, and Kelly
prohibits us from ruling on the validity of the Anders brief. Id. at 321–22 (holding
appellate courts may not rule on validity of Anders brief until satisfied that
appellant has been able to access appellate record to prepare response).
      2
        Although we have not conducted an independent evaluation of the record
to determine whether Armandariz’s court-appointed appellate counsel is correct
in determining that the appeal is frivolous, we note that this is a capital murder
case that involved sixteen days of voir dire and twenty-one days of trial. The
reporter’s record contains sixty-four volumes. In light of this extensive record, the
trial court may exercise discretion to appoint new counsel to determine whether
there are any arguable issues capable of being briefed that should be raised.


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      The clerk of the court is directed to transmit a copy of this order to the

appellant, the attorneys of record, the trial court judge, and the trial court clerk.



                                                      /s/ Sue Walker
                                                      SUE WALKER
                                                      JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

PUBLISH

DELIVERED: May 12, 2016




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