
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-11-00658-CR
NO. 03-11-00659-CR


David Preston Campbell, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NOS. CR22,208 & CR22,209, HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


		These are appeals pursuant to Anders v. California, 386 U.S. 738 (1967).  In
trial court cause number CR22,208 (appellate cause number 03-11-00658-CR), appellant
David Preston Campbell was charged with the offense of burglary of a building.  See Tex. Penal
Code Ann. § 30.02 (West 2011).  In trial court cause number CR22,209 (appellate cause number 03-11-00659-CR), Campbell was charged with the offense of theft from a person  See Tex. Penal Code
Ann. § 31.03(e)(4)(b) (West Supp. 2012).  Campbell pled guilty to both offenses.  The district court
found the evidence sufficient to support a finding of guilt in each cause, withheld such findings
at that time, and ordered a pre-sentence investigation report (PSI).  Following a sentencing hearing,
punishment was assessed at eighteen months in state jail for both charged offenses with the sentences
to run concurrently, but with no credit for time served.  These appeals followed.

 		In each cause, Campbell's court-appointed attorney has filed a motion to withdraw
supported by a brief concluding that the appeal is frivolous and without merit.  Counsel has sent
Campbell a copy of counsel's brief and advised him of his right to examine the appellate record
and to file a pro se brief.  See Anders, 386 U.S. at 744-45.  No pro se brief or other written response
has been filed.
		We have reviewed the record, including appellate counsel's briefs, and find that
the record contains at least one arguable ground for appeal.  See Garner v. State, 300 S.W.3d 763,
766 (Tex. Crim. App. 2009); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
Specifically, the record reflects that the district court denied Campbell's request to be given credit
for time served.  The arguable issue, as noted in a concurring opinion out of the Fort Worth Court of
Appeals, is "whether article 42.12, section 15 of the code of criminal procedure vests a trial court
with discretion--despite contrary mandatory language in article 42.03, section 2(a)(1) of the code of
criminal procedure--to deny a defendant's request for credit for time served between arrest and
sentencing when the defendant has been convicted of a state jail felony and is sentenced directly to
imprisonment in a state jail facility, rather than placed on community supervision."  In re Craven,
No. 02-09-00243-CV, 2009 Tex. App. LEXIS 8836, at *1 (Tex. App.--Fort Worth Nov. 13, 2009,
orig. proceeding) (Walker, J., concurring).  As the concurring justice observed, although other
courts of appeals--including this one--have found that a trial court does have such discretion, (1) "the
Court of Criminal Appeals has yet to determine in a published opinion" the precise issue of "whether
article 42.12, section 15(h) of the code of criminal procedure vests a trial court with discretion to
deny a defendant's request for credit for time served between arrest and sentencing in a case in which
the defendant is convicted of a state jail felony and sentenced directly to imprisonment in a state jail
facility."  See id. at *11.  We conclude that this issue has an arguable basis in law and is therefore
not frivolous.  See McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10 (1988); In re Schulman,
252 S.W.3d 403, 407 & n.12 (Tex. Crim. App. 2008); Bledsoe, 178 S.W.3d at 827.  By this holding,
however, we intend no comment as to the ultimate merits of this issue.  See Holloway v. State,
115 S.W.3d 797, 798 (Tex. App.--Austin 2003, no pet.); but cf. Craven, 2009 Tex. App. LEXIS
8836, at *11 (Walker, J., concurring).
		Because an Anders brief has been filed, we may not address the merits of any arguable
ground for appeal until the issue has been briefed by new counsel.  See Bledsoe, 178 S.W.3d at 827.
Accordingly, the appeals are abated.  The district court is instructed to appoint substitute counsel to
file a brief addressing the above issue, along with any other issue that counsel deems meritorious.
See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).  In each cause, present counsel's
motion to withdraw is granted.  See id. A copy of the order appointing substitute counsel shall be
forwarded to this Court no later than September 4, 2012.  Substitute counsel's brief will be due
thirty days after the date of appointment.

						__________________________________________
						Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Henson
Abated
Filed:   August 23, 2012
Do Not Publish
1.   See, e.g., Holloway v. State, 115 S.W.3d 797, 798 (Tex. App.--Austin 2003, no pet.); Hoitt
v. State, 30 S.W.3d 670, 676, 677 (Tex. App.--Texarkana 2000, pet. ref'd).
