David Bocanegra, Jr. v. State ( 2013 )

Order filed May 30, 2013
In The
Eleventh Court of Appeals
__________
No. 11-12-00038-CR
_________
DAVID BOCANEGRA, Jr., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 4
Travis County, Texas
Trial Court Cause No. C1CR11205953
ORDER
The jury convicted David Bocanegra, Jr. of assault-family violence. The
trial court assessed his punishment at confinement in the Travis County Jail for a
term of 270 days. We abate the appeal and remand to the trial court for
appointment of new appellate counsel.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel asserts that he has professionally
and conscientiously examined the record and applicable law and that he has
concluded that the appeal is frivolous. Counsel has provided Appellant with a
copy of the brief and advised Appellant of his right to review the record and file a
response to counsel’s brief. A response has not been filed.1 It appears that court-
appointed counsel has attempted to comply with the requirements of Anders v.
California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim.
App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v.
State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684
(Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.
1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.).
In addressing an Anders brief, a court of appeals may only determine (1) that
the appeal is wholly frivolous and issue an opinion explaining that it has reviewed
the record and finds no reversible error or (2) that arguable grounds for appeal
exist and remand the cause to the trial court so that new counsel may be appointed
to brief the issues. Schulman, 252 S.W.3d 403; Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005). Following the procedures outlined in Anders and
Schulman, we have independently reviewed the record, and we disagree with
court-appointed counsel’s conclusion that an appeal would be frivolous. We note
that the trial occurred over the course of multiple days. Over ten witnesses testified
during the guilt/innocence phase. In the court’s perspective, an appeal arising from
a contested trial on guilt/innocence is not readily amenable to disposition under
Anders.
Accordingly, we grant counsel’s motion to withdraw, abate this proceeding,
and remand the case to the trial court for appointment of new appellate counsel.
See Bledsoe, 178 S.W.3d at 826–27. We direct the trial court to appoint new
1
By letter, this court granted Appellant thirty days in which to exercise his right to file a response
to counsel’s brief.
2
counsel to represent Appellant on appeal. The trial court shall furnish the name,
address, telephone number, and state bar number of new counsel by its order
appointing new counsel. The order shall be included in a supplemental clerk’s
record, which shall be filed with the clerk of this court by June 27, 2013.
Appellant’s brief shall be due thirty days from the date of the trial court’s
appointment of new counsel. All other appellate deadlines shall be in accordance
with the Texas Rules of Appellate Procedure.
The motion to withdraw is granted, the appeal is abated, and the cause is
remanded to the trial court in accordance with this order.
PER CURIAM
May 30, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
3