

NO. 07-10-00417-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D
 

MARCH
29, 2011
 

 
MICKEY CHARLES ROBINETT, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 355TH DISTRICT COURT OF HOOD
COUNTY;
 
NO. CR11394; HONORABLE RALPH H. WALTON JR., JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and PIRTLE, JJ.
 
 
ON ABATEMENT AND REMAND
 
Appellant Mickey Charles Robinett
appeals from his jury convictions for aggravated sexual assault, inducing a
child to engage in sexual conduct, and indecent exposure and the resulting
concurrent sentences.  Appellant’s
appointed counsel filed a motion to withdraw, together with a brief pursuant to
Anders v. California, 386 U.S. 738,
744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), wherein
he certified that, after diligently searching the record, he found the appeal
without arguable merit.  Along with his
brief, he also filed a copy of a letter he sent to appellant informing him of
his conclusion and of appellant’s right to appeal pro se.  This court notified
appellant of his right to file his own brief or response.  Appellant has not done so.
            It is the duty of a criminal defense attorney to
zealously represent the interests of his client on appeal. In
re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App.
2008). If the appointed attorney finds the
"case to be wholly frivolous, after a conscientious examination of it, he
should so advise the court and request permission to withdraw." Id., quoting Anders,
286 U.S. at 744. The brief filed in an Anders situation is "an assurance to the
appellate court that the attorney has indeed made a thorough and conscientious
examination of the record, has provided the appellate court with the
appropriate facts of the case and its procedural history, and has pointed out
any potentially plausible points of error."  252 S.W.3d at 406.
When
we receive a brief filed pursuant to Anders,
we may not simply accept counsel’s conclusion that the appeal is baseless.  Instead, we too must review the record to
determine if there is an arguable ground for appeal. Stafford
v. State,
813 S.W.2d 503, 511 (Tex.Crim.App. 1991).
This
case involved a thirteen-count indictment. 
Six counts were waived by the State and seven were submitted to the
jury.  The jury trial spanned three days.
Ten witnesses testified for the State. 
Appellant called three witnesses and testified on his own behalf. The
jury found appellant guilty of all seven submitted counts and appellant was
sentenced to concurrent sentences of 60 years for each of the two aggravated
sexual assault of a child convictions, 20 years for each of the four sexual performance by a child convictions and 10 years for the
indecency with a child conviction.  In
analyzing the record, counsel raised an issue concerning the court’s decision
on the proper outcry witness.  Having
reviewed the record, we find the court’s decision on that issue presents an
arguable appellate issue, at least as to some counts.  We note also that appellate counsel
identified other rulings on evidentiary matters that were adverse to appellant,
but did not explain why they do not present arguable appellate points.  We do not comment on the ultimate merit of
these or any other potential appellate issues, but we do find further briefing
is necessary. 
Accordingly,
we abate the matter and remand the cause to the 355th Judicial
District Court of Hood County, Texas. See Stafford, 813
S.W.2d at 511. On remand, the trial court is ordered to appoint a new attorney to represent appellant
in his appeal. Next, the trial court shall cause the name, address, and state
bar number of the newly appointed counsel to be included in a supplemental clerk’s
record. That supplemental record shall be filed by the trial court with the
clerk of this court on or before April 28, 2011.  Appellant’s newly-appointed counsel shall
prepare and file an appellant’s brief addressing the outcry witness issue and
any other arguably meritorious issues counsel identifies.  The brief shall be due thirty days from the
date of the trial court’s order appointing counsel.
Finally,
because the opinion expressed by appellant's current attorney could be viewed
as creating a conflict of interest, we grant his motion to withdraw.
It
is so ordered.
                                                                                    Per
Curiam
Do
not publish.

