emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”
How later courts described this case
- emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”
- “If grounds are deemed arguable, the Court of Appeals then must abate the appeal and remand the case to the trial court with orders to appoint other counsel to present those and any other grounds that might support the appeal.”
- “The court’s duty is to determine whether there are any arguable grounds and if there are, to remand to the trial court so that new counsel may be appointed to brief the issues.”
Written by the judges who cited it.
The opinion
Order issued November 20, 2014
In The
Court of Appeals
For The
First District of Texas
NO. 01-13-01027-CR
RODNEY MILUM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1347043
ABATEMENT ORDER
Appellant, Rodney Milum, pleaded guilty to the offense of sexual assault of
a child. After a trial by jury, he was found guilty and sentenced to two years with
the Texas Department of Criminal Justice. The court suspended his sentence in
favor of eight years’ community supervision. 41 conditions of community service
were imposed, including:
You may enter a church, synagogue or other place of worship only to
attend a public service. You may arrive fifteen (15) minutes prior to
service and you must depart the place of worship immediately
following the service. (Item number 26 in Conditions of Community
Supervision).
You may not access to the Internet through any manner of method,
beginning 10/18/2013 for any reason unless specifically ordered by
the Court. (Item number 32 in Conditions of Community
Supervision).
Milam’s court-appointed counsel on appeal, Melissa Martin, has filed a
motion to withdraw from representing Milum and an Anders brief in which she
opines that no valid grounds for appeal exist and that Milum’s appeal is frivolous.
See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); In re
K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Martin
did not address the conditions of community supervision in her brief. Specifically,
Martin did not address whether any of the conditions are overbroad or unrelated to
the offense. Milum has filed a pro se response arguing ineffective assistance of
counsel in regards to informing him of possible sexual offender registration
requirements. The State waived its opportunity to file an appellee’s brief.
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When this Court receives an Anders brief from an appellant’s court-
appointed attorney who asserts that no arguable grounds for appeal exist, we must
determine that issue independently by conducting our own review of the entire
record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing
court—and not counsel—determines, after full examination of proceedings,
whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991) (same); Martin v. Dep’t of Family & Protective Servs., No. 01-
07-00842-CV, 2009 WL 276759, at *1 (Tex. App.—Houston [1st Dist.] Feb. 5,
2009, pet. denied) (stating that reviewing court must conduct independent review
of entire record to determine whether arguable grounds for appeal exist). An
arguable ground for appeal is a ground that is not frivolous; it must be an argument
that could “conceivably persuade the court.” See In re Schulman, 252 S.W.3d 403,
407 n.12 (Tex. Crim. App. 2008) (quoting McCoy v. Court of Appeals of Wisc.,
Dist. I, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)). However, “[w]hen we
identify issues that counsel on appeal should have addressed but did not, we need
not be able to say with certainty that those issues have merit; we need only say that
the issues warrant further development by counsel on appeal.” Wilson v. State, 40
S.W.3d 192, 200 (Tex. App.—Texarkana 2001, no pet.) (citing Wilson v. State,
976 S.W.2d 254, 257 n.4 (Tex. App.—Waco 1998, no pet.)).
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Our role in this Anders appeal is limited to determining whether arguable
grounds for appeal exist. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim.
App. 2005). If we determine that arguable grounds for appeal exist, we must abate
the appeal and remand the case, and Milum is entitled to have new counsel address
the merits of the issues raised. Id. “Only after the issues have been briefed by new
counsel may [we] address the merits of the issues raised.” Id.
In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and
Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record and appointed
counsel’s Anders brief. The record on appeal suggests that there are arguable
grounds for appeal with regards to the conditions of community supervision
applied to Milum.
We abate this appeal and remand the cause for the trial court to appoint
new appellate counsel to represent Milum within 30 days of the date of this
order. The newly appointed counsel’s brief will be due 30 days from the date
counsel is appointed, regardless of whether this Court has yet reinstated the
appeal, and counsel is required to:
(1) fully investigate and make a conscientious examination of the record;
(2) address all arguable, non-frivolous grounds for appeal in a brief on the
merits;
(3) specifically address the issue of whether any or all the 41 conditions of
community supervision imposed by the trial court are invalid. See, e.g.
U.S. v. Tang, 718 F.3d (5th Cir. 2003); Barton v. State, 21 S.W.3d 287,
289 (Tex. Crim. App. 2000); Mitchell v. State, 420 S.W.3d 448 (Tex.
App.—Houston [14th Dist.] 2014); TEX. CODE CRIM. P. art. 42.12 §11
(a); cf. Doughty v. State, 2014 WL 5465697 (Tex. App.—Houston [1st
Dist.] October 28, 2014, no pet.);
(4) whether failure to object to any of the conditions of community
supervision constituted ineffective assistance of counsel;
(5) address any other grounds counsel deems appropriate.
See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (“The court’s
duty is to determine whether there are any arguable grounds and if there are, to
remand to the trial court so that new counsel may be appointed to brief the
issues.”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (“If
grounds are deemed arguable, the Court of Appeals then must abate the appeal and
remand the case to the trial court with orders to appoint other counsel to present
those and any other grounds that might support the appeal.”).
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We further order that a supplemental clerk’s record be filed with this court
containing the name, address, and state bar number of the new counsel appointed
within 30 days of the date of this order.
We grant counsel Melissa Martin’s motion to withdraw.
The appeal is abated, treated as a closed case, and removed from this
Court’s active docket. The appeal will be reinstated on this Court’s active docket
when Milum’s brief is filed in this Court.
It is so ordered.
Judge’s signature: _____/s/ Harvey Brown
X Acting individually
Panel consists of Justices Massengale, Brown, and Huddle.
Date: November 20, 2014
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