Jose Angel Cordova v. State ( 2010 )

NO. 07-09-00371-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 27, 2010

JOSE ANGEL CORDOVA, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B14880-0303; HONORABLE EDWARD LEE SELF, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER

Upon review of appellant’s petition for discretionary review, we withdraw our opinion and judgment of April 19, 2010.  See Tex. R. App. P. 50.  We do not withdraw our granting of original appellate counsel’s motion to withdraw.

            Appellant’s original appellate counsel, Peter I. Clarke, filed a brief complying with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), and a motion to withdraw.  Appellant was notified of his right to file a pro se response but did not file one.  Based on representations made in a later-filed motion in this Court, Clarke became ill and another attorney was appointed for appellant for the limited purpose of advising appellant of his right to file a pro se petition for discretionary review. In our April 19th opinion, we agreed with Clarke’s evaluation that the record did not present any arguable grounds that would support an appeal and affirmed the trial court’s judgment.  See Cordova v. State, No. 07-09-00371-CR, 2010 Tex.App. LEXIS 2826, at *2-*3 (Tex.App.—Amarillo Apr. 19, 2010, pet. filed).

            On June 9, 2010, we granted a motion to substitute counsel filed by attorney James B. Johnston indicating that appellant had retained Johnston’s services and that interim appellate counsel had fulfilled his obligation to advise appellant of his right to file a pro se petition for discretionary review.  Johnston sought an extension of time in which to file a motion for rehearing.  He did not, however, file a motion for rehearing.  Nor has Johnston moved to withdraw as counsel in this Court. Accordingly, he remains attorney of record in this appeal.

            On June 22, 2010, Johnston filed a petition for discretionary review on behalf of appellant in which he presented a succinct argument that certain issues concerning the interpretation and application of Article 42.12 of the Texas Code of Criminal Procedure are arguable grounds for an appeal in this case.  See Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 2009).  Having concluded that the issues raised in the petition for discretionary review present an arguable basis for appeal, we withdraw our opinion affirming the trial court’s judgment and direct Johnston to file a brief on appellant’s behalf fully developing the issues raised in the petition for discretionary review or other issues that would support an appeal, if any.  We reset the briefing schedule to make appellant’s brief on the merits due thirty days from the date of this order.

            It is so ordered.

                                                                                                Per Curiam

Do not publish.