                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-14-00230-CR


                           DANIEL IVAN RODRIGUEZ, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 242nd District Court
                                      Castro County, Texas
                Trial Court No. B3515-1312, Honorable Edward Lee Self, Presiding

                                          November 25, 2014

                               ABATEMENT AND REMAND

                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Daniel Ivan Rodriguez was convicted after a jury trial of possession of a

controlled substance (methamphetamine) in an amount of four grams or more but less

than 200 grams. A jury assessed his punishment at five years confinement and a fine

of $5,000. We abate and remand for the appointment of new counsel.

      Appellant’s appointed counsel has filed a motion to withdraw, together with an

Anders1 brief, wherein he certifies that, after diligently searching the record, he has

concluded that the appeal is without merit. Along with his brief, he has filed a copy of a

      1
          Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
letter sent to appellant informing him of counsel’s belief that there was no reversible

error and of appellant’s right to appeal pro se. He has represented to the court that he

has furnished a copy of the record to appellant.                By letter, this court also notified

appellant of his right to file his own brief or response by November 17, 2014, if he

wished to do so. To date, no response has been received.

        In attempted compliance with the principles enunciated in Anders, appellate

counsel discussed various phases of the trial including 1) the indictment, 2) the motion

to suppress, 3) voir dire, 4) jury instructions, 5) sufficiency of the evidence, 6) objections

during trial, 7) the punishment phase, 8) the sentence assessed, and 9) the effective

assistance of counsel. Counsel also attempted to illustrate why none presented an

issue of arguable merit. See Garner v. State, 300 S.W.3d 763, 766 (Tex. 2009).

        Thereafter, we conducted our own review of the record to assess the accuracy of

appellate counsel’s conclusions and to uncover any error pursuant to In re Schulman,

252 S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d 503 (Tex.

Crim. App. 1991). Our investigation revealed an arguable issue pertaining to the entry

of the officer into appellant’s motel room without a warrant or permission of the

occupant, the subsequent search of the room once appellant was physically detained,

and the legitimacy of the purported consent given to the officer to conduct a search (i.e.,

the attenuation, if any, between the officer’s entry into and detention of appellant in the

room and the consent to search purportedly granted to the officer).2


        2
          Appellant’s counsel represented that appellant waived any issue regarding the legitimacy of the
detention and ensuing search by not objecting at trial. Because the complaint was previously raised via a
motion to suppress heard before trial began, appellant need not have again objected at trial; that is, the
motion to suppress coupled with an adverse ruling thereon preserved complaint regarding the search.
TEX. R. EVID. 103(a)(1); Thomas v. State, 408 S.W.3d 877, 881-82 (Tex. Crim. App. 2013). That trial
counsel may have uttered the phrase “no objection” when the State attempted to admit fruits of the
search no longer results in the automatic waiver of any complaint raised via a motion to suppress. See
Thomas v. State, supra. Appellant’s counsel’s suggestion to the contrary is mistaken.
                                                     2
      Counsel having represented to this court that no arguable issue appears of

record, his continuation as appellant’s attorney would pose a conflict of interest. So, we

grant the motion to withdraw. We also abate and remand the cause to the trial court

and order it to appoint, on or before December 23, 2014, new counsel to represent

appellant in this appeal. A copy of the order appointing new counsel shall be included

in a supplemental clerk’s record and filed with the clerk of this court on or before

December 29, 2014. The newly appointed counsel will then file an appellant’s brief 1)

conforming to the Texas Rules of Appellate Procedure and 2) addressing the arguable

issue mentioned above and any other issue deemed arguable.           The deadline to file

said appellant’s brief is January 28, 2015, unless extended by the court.

      It is so ordered.


                                                              Per Curiam


Do not publish.




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