Order issued May 28, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-14-00493-CR
                            ———————————
                        LUIS RUIZ SIERRA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1396147


                             ABATEMENT ORDER

      Appellant, Luis Ruiz Sierra, pleaded guilty to the felony offense of burglary

of a habitation with intent to commit a felony.1 The trial court found him guilty and



1
      See TEX. PENAL CODE ANN. § 30.02(a)(2) (West 2011) (“A person commits
      an offense if, without the effective consent of the owner, the person . . .
assessed punishment at thirty years in prison. Appellant’s court-appointed counsel

on appeal has filed a motion to withdraw from representing appellant and an

Anders brief in which he opines that no valid grounds for appeal exist and that

appellant’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S.

Ct. 1396, 1400 (1967). Appellant filed a pro se response in which he complains of

ineffective assistance of counsel and requests a reduction in his sentence. The State

has waived its opportunity to file an appellee’s brief in response to the brief

counsel filed on appellant’s behalf.

      When this court receives an Anders brief from an appellant’=s court-

appointed attorney who asserts that no arguable grounds for appeal exist, we must

independently determine whether any arguable grounds for appeal exist by

conducting our own review of the entire record. Id. (emphasizing that reviewing

court—and not counsel—determines, after full examination of proceedings,

whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.

Crim. App. 1991). An arguable ground for appeal is a ground that is not frivolous;

it must be an argument that could “conceivably persuade the court.” See In re

Schulman, 252 S.W.3d 403, 407 n.12 (Tex. Crim. App. 2008) (quoting McCoy v.

Court of Appeals of Wisc., Dist. I, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901



      remains concealed, with intent to commit a felony, theft, or an assault, in a
      building or habitation . . . .”).

                                         2
(1988)). In conducting our review, we consider any pro se response that the

appellant files in response to his appointed counsel’s Anders brief. See Garner v.

State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009).

      Our role in this Anders appeal is limited to determining whether arguable

grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005). If we determine that arguable grounds for appeal exist, we do not rule

on the ultimate merits of any arguable issues. Id. at 827. Instead, we must abate the

appeal and remand the case. Id. On remand, the trial court must appoint new

counsel to represent appellant, because appellant is entitled to have new counsel

address the merits of the issues raised. Id. “Only after the issues have been briefed

by new counsel may [we] address the merits of the issues raised.” Id.

      In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and

Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record, appointed counsel’s

Anders brief, and appellant’s pro se response to that brief. The record on appeal

reflects at least one arguable ground for appeal: whether appellant’s 30-year

sentence exceeds the statutory maximum for the second-degree felony offense of

burglary–for which he was indicted and to which he pleaded guilty–and was

therefore illegal and void.2


2
      See TEX. PENAL CODE ANN. § 12.32 (West 2011) (punishment range for first-
      degree felony offenses); id. § 12.33 (West 2011) (punishment range for
      second-degree felony offenses); id. § 30.02(c)(2) (specifying that burglary is
                                         3
      Accordingly, we strike the brief filed by appellant’s current appointed

counsel, grant counsel’s motion to withdraw, and abate this appeal and remand the

cause for the trial court to appoint new appellate counsel to review the existing

record and to present any grounds, including the ground described above, that

might support the appeal. We further order that a supplemental clerk’s record be

filed with this court containing the name, address, and state bar number of the new

counsel appointed.

      It is so ordered.



                                               Michael Massengale
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




      a second-degree felony offense when committed in a habitation); id.
      § 30.02(d) (enhancing burglary of habitation to first-degree felony only if
      any party to burglary entered the habitation with intent to commit a felony
      other than theft, or committed or attempted to commit a felony other than
      theft); see also Mizell v. State, 119 S.W.3d 804, 805, 806–07 (Tex. Crim.
      App. 2003) (“A sentence that is outside the maximum or minimum range of
      punishment is unauthorized by law and therefore illegal.”).

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