Traci Lee Alaniz v. State ( 2020 )

Order filed October 8, 2020
In The
Eleventh Court of Appeals
__________
No. 11-19-00399-CR
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TRACI LEE ALANIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-19-0578-CR
ORDER
Appellant, Traci Lee Alaniz, pleaded guilty to the offense of murder, without
the benefit of a plea agreement. The trial court found Appellant guilty of murder,
and the jury assessed punishment at eighty years’ confinement.
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 conscientiously
examined the record and applicable law and states that he has concluded that the
appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967).
Following the procedures set out in Anders; Kelly v. State, 436 S.W.3d 313
(Tex. Crim. App. 2014); and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App.
2008), we conducted an independent review of the record. We note that, in the
punishment phase charge, the trial court included an instruction related to the
applicability of any good conduct that Appellant might be awarded by prison
authorities.
Because Appellant was convicted of murder, the trial court was required to
instruct the jury pursuant to Article 37.07, section 4(a) of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 37.07, § 4(a) (during penalty
phase of a trial in which the jury is to assess punishment, the trial court shall charge
the jury pursuant to Section 4(a) if the offense is listed in Article 42A.054(a)),
42A.054(a)(2) (listing Section 19.02 (murder) of the Texas Penal Code) (West Supp.
2020); see also Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002).
Effective September 1, 2019, the Texas legislature amended Article 37.07,
section 4(a) to delete all references to good conduct time. See Act of May 15, 2019,
86th Leg., R.S., ch. 260, § 1(a), 2019 Tex. Sess. Law Serv. 2019 (H.B. 1279).
The amended jury instruction applies to all defendants sentenced after
September 1, 2019, regardless of the date of the offense. See id. §§ 2–3. The jury
returned its verdict on Appellant’s punishment on December 10, 2019, and the trial
court formally sentenced Appellant on December 11, 2019. Accordingly, the trial
court erred when it included in the punishment phase charge any instruction related
to good conduct time that may be awarded to Appellant by prison authorities. See
Addison v. State, No. 05-18-01263-CR, 2020 WL 4251068, at *3–4 (Tex. App.—
Dallas July 24, 2020, no pet.) (mem. op., not designated for publication) (holding
2
that punishment phase charge was erroneous because it included language related to
good conduct time that was “not delineated in section 4(a)”).
Accordingly, we grant Appellant’s counsel’s motion to withdraw, abate this
proceeding, and remand the cause to the trial court for the appointment of new
appellate counsel. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005). We direct the trial court to appoint new counsel to represent Appellant on
appeal. The trial court shall furnish the name, address, telephone number, and state
bar number of new counsel in 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 on or before October 27, 2020. New appellate counsel is directed to address
the issue identified by this court and to raise any other substantive issues that counsel
deems arguable. Appellant’s brief is due to be filed in this court 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
October 8, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3