Ruben Simei Ornales v. State ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-09-00729-CR

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Ruben Simei Ornales, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT NO. 2763, HONORABLE STEPHEN ELLIS, JUDGE PRESIDING

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O R D E R

PER CURIAM

Ruben Simei Ornales appeals a conviction for possession of more than four ounces of marihuana. His court-appointed counsel has filed a motion to withdraw supported by a one-page brief citing Anders v. California, 386 U.S. 738 (1967), and stating: "After having diligently searched the record and researched the law, Appellant's appeal is without merit."

While this was a guilty plea and the record is minimal, an Anders brief must do more than merely assert counsel's belief that the appeal is frivolous. Instead, an Anders brief should assist the appellate court in determining both that counsel has conducted the required detailed review of the case and that the appeal is indeed so frivolous that it may be decided without an adversary presentation. Penson v. Ohio, 488 U.S. 75 (1988); see also 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). The brief filed by appointed counsel in this cause does not satisfy these purposes. Counsel states that he has searched the record, but his brief does not summarize the testimony of the two witnesses and the other evidence. Counsel states that he has researched the law, but his brief does not mention or discuss the legal issues counsel resolved before filing his brief.

Counsel for appellant is ordered to tender a new brief fully complying with Anders, Gainous, and High by no later than October 8, 2010. No extension of time for filing will be granted. Counsel shall also deliver a copy of this new brief to appellant.

It is ordered September 8, 2010.

Before Justices Patterson, Waldrop and Henson

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