Reset A A Font size: Print

Court of Appeals of Texas, Dallas.


No. 05-09-00593-CR

Decided: February 22, 2011

Before Justices O'Neill, Richter, and Lang-Miers


Opinion By Justice Lang-Miers

Appellant Gerome Ellis Alexander was charged under section 841.085 of the health and safety code with violating a requirement of his civil commitment as a sexually violent predator.   After the trial court denied appellant's motion to quash the indictment, appellant pleaded not guilty and his case was tried to a jury over the course of four days.   The jury found appellant guilty, found two enhancement paragraphs true, and assessed appellant's punishment at 25 years in prison.   On appeal, appellant's court-appointed counsel filed a motion to withdraw as counsel accompanied by a brief in which she cites Anders v. California, 386 U.S. 738 (1967), and concludes that “the record contains no reversible error and no jurisdictional defects are present.”   Counsel delivered a copy of the motion and brief to appellant.   We advised appellant he has a right to obtain a copy of the record and file a pro se response.   Appellant, however, did not request a copy of the record or file a pro se response.

After conducting our Anders review, we conclude that an arguable issue exists regarding appellant's pre-trial motion to quash the indictment, which was overruled by the trial court after a hearing.   Counsel states in her brief that the motion to quash was properly denied by the trial court, but she does not mention or address the surplusage argument raised in appellant's motion, nor does she address all of the constitutional challenges raised in that motion-at least some of which appear to be based on unsettled precedent, if not issues of first impression.   See generally Garner v. State, 300 S.W.3d 763, 767 (Tex.Crim.App.2009) (noting possible ground for appeal is meritorious, for purposes of Anders, if ground is based “wholly on unsettled precedent” and “extensive analysis” is required);  United States v. Condren, 18 F.3d 1190, 1193 n.8 (5th Cir.1994) (“Certainly, an issue of first impression ․ should be brought to the court's attention [in an Anders brief].”).   We also note that appellant's motion to quash refers to an amended indictment that is not contained in the clerk's record and counsel's brief does not acknowledge or explain that apparent discrepancy.

Additionally, although the record demonstrates that the trial court made several rulings adverse to appellant on evidentiary objections raised during trial by both sides, counsel does not identify or describe any of those objections, nor does she discuss why the trial court's rulings on those objections were either correct or not harmful to appellant.   See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978) (Anders brief filed in contested case must describe objections raised and ruled on during trial “and discuss either why the trial court's ruling was correct or why the appellant was not harmed by the ruling of the trial court.”);   see also Kiser v. State, No. 09-99-00522-CR, 2001 WL 997365, at *2 (Tex.App.-Beaumont Aug. 29, 1991, no pet.) (not designated for publication) (appellate court could not conclude counsel's brief met requirements of Anders because, among other omissions, “[t]here is no discussion of any objections ․ for which the error, if any, has obviously been preserved for appeal”).

We grant counsel's motion to withdraw.   We remove this appeal from the submission docket, abate the appeal, and remand the case to the trial court.   See In re Schulman, 252 S.W.3d 403, 409 (Tex.Crim.App.2008).   We order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits that addresses the motion to quash and any other plausible grounds for appeal.   See id.


Copied to clipboard