David Alexander Zuniga v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00058-CR
David Alexander ZUNIGA,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR4390B
Honorable Sid L. Harle, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 25, 2018
ABATED AND REMANDED; MOTION TO WITHDRAW GRANTED
David Alexander Zuniga was convicted by a jury of murder committed during the course
of a robbery when he was 17 years old. See TEX. PENAL CODE ANN. § 19.02(b) (West 2011). The
trial court followed the jury’s punishment recommendation and sentenced Zuniga to life in prison,
and assessed a $10,000 fine. Zuniga now appeals.
Zuniga’s court-appointed appellate attorney filed a brief containing a professional
evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967), and a
motion to withdraw. In the sixty-page brief, counsel discusses several potential appellate issues,
04-17-00058-CR
but concludes that none have merit and that this appeal is therefore frivolous. The brief meets the
Anders requirements. See id.; see also High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978);
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). As required, counsel provided Zuniga
with a copy of the brief and motion to withdraw, and informed him of the right to receive a copy
of the appellate record and to file his own pro se brief. See Kelly v. State, 436 S.W.3d 313, 319
(Tex. Crim. App. 2014); see also Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio
1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).
Zuniga thereafter filed a pro se brief raising an additional appellate issue not addressed in the
Anders brief, asserting that defense counsel’s ability to intelligently exercise his peremptory strikes
was impaired by the trial court’s failure to divulge the address information for the potential jurors
and that his counsel was ineffective. The State filed a brief responding to the pro se brief, asserting
lack of preservation, no error occurred, and an insufficient record to prove ineffective assistance
of counsel.
Once we determine that the procedural requirements of Anders have been satisfied, we
engage in an independent review of the briefs and the record to determine whether we agree with
counsel’s conclusion that the appeal is wholly frivolous, in which case we issue an opinion stating
there is no reversible error, or we conclude that arguable grounds for appeal exist, in which case
we remand the cause to the trial court. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App.
2005); Nichols, 954 S.W.2d at 86. If we determine that a nonfrivolous ground for appeal exists,
we must grant defense counsel’s motion to withdraw, abate the appeal, and remand the case to the
trial court for appointment of new counsel. See Nichols, 954 S.W.2d at 86 (noting that we cannot
order counsel to brief and argue an appeal that counsel considers frivolous). The new attorney is
then required to file a brief raising the nonfrivolous ground we have identified, as well as any
additional grounds that the attorney discovers. Bledsoe, 178 S.W.3d at 827; Stafford v. State, 813
-2-
04-17-00058-CR
S.W.2d 503, 511 (Tex. Crim. App. 1991). Only after Zuniga’s new counsel has briefed the issues
on appeal will we address the merits of the issues. 1
After reviewing the briefs and the record, we conclude that the appeal is not wholly
frivolous and there are arguable ground(s) for appeal, including whether Zuniga was subjected to
custodial interrogation without Miranda warnings and whether his statement should have been
suppressed under the Texas Family Code or the Texas Code of Criminal Procedure. See Bledsoe,
178 S.W.3d at 827. We therefore grant counsel’s motion to withdraw, abate the appeal, and
remand the cause to the trial court. The trial court shall, within thirty days from the date of our
opinion and order, appoint a new attorney on appeal to present all arguable grounds of error,
including but not limited to the nonfrivolous ground noted in this opinion. See id.; see also Nichols,
954 S.W.2d at 86.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
1
The dissent instead chooses to address the merits by determining “neither reversible error nor a legal point arguable
on its merits” exists, before new counsel is permitted to re-brief and argue an appeal on behalf of the appellant.
-3-