Robert Earl Foster v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00422-CR
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ROBERT EARL FOSTER, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 13754JD
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ORDER
A grand jury indicted Robert Earl Foster for the third-degree felony offense
of theft of property in an amount between $30,000.00 and $150,000.00. See Tex.
Penal Code Ann. § 31.03. Following a trial, a jury convicted Foster and the trial
judge sentenced him to confinement in the Texas Department of Criminal Justice for
eight years. Foster timely appealed.
The attorney appointed to represent Foster in his appeal filed an Anders brief
which asserted that the attorney diligently reviewed the record and found no
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meritorious claims on which to appeal Foster’s sentence and that any appeal would
be frivolous. See Anders v. California, 386 U.S. 738, 744–45 (1967); High v. State,
573 S.W.2d 807, 810–13 (Tex. Crim. App. [Panel Op.] 1978). Court-appointed
counsel also filed a motion to withdraw requesting that he be permitted to withdraw
in the event this Court determines appointment of new counsel and re-briefing is
necessary. Foster filed a pro se response to court-appointed counsel’s Anders brief.
Our review of the record reveals that Foster’s court-appointed appellate
counsel also served as his court-appointed trial counsel. The record also establishes
the substantial likelihood that a conflict existed in the trial court between appointed
counsel and Foster. See Quinonez v. State, No. 07-19-00149-CR, 2020 WL 62630,
at *1 (Tex. App.—Amarillo Jan. 6, 2020, order) (not designated for publication)
(remanding for appointment of new counsel “without a potential conflict of interest
to independently represent Appellant” where same attorney represented defendant
at trial and on appeal and defendant was critical of counsel’s performance).
Therefore, we are not satisfied that counsel was able to “adequately discharge[ ] his
constitutional duty to review the record for any arguable error[.]” See Meza v. State,
206 S.W.3d 684, 689 (Tex. 2006). Accordingly, we must remand the case to the
trial court for appointment of new appellate counsel. See id.
It is, therefore, ORDERED that counsel’s motion to withdraw is GRANTED,
the appeal is ABATED and the cause is REMANDED to the trial court for
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appointment of new counsel for Appellant, Robert Earl Foster. A supplemental
clerk’s record containing the order appointing new counsel shall be filed with the
Court by November 16, 2020. Appellant’s brief shall be due thirty days after the
appeal is reinstated. The State’s brief shall be due thirty days after the Appellant’s
brief is filed. We remove the case from the submitted docket. The appeal will be re-
submitted after the briefs have been filed.
ORDER ENTERED October 16, 2020.
PER CURIAM
Before McKeithen, C.J., Kreger, and Horton, JJ.
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