Gerardo Arredondo v. State

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: Gerardo Arredondo v. The State of Texas

Appellate case number: 01-16-00312-CR

Trial court case number: 1403754

Trial court: 339th District Court of Harris County

Appellant, Gerardo Arredondo, was charged with capital murder. Arredondo

entered a plea of “not guilty.” A jury found Arredondo guilty as charged in the

indictment. See TEX. PENAL CODE ANN. § 19.03 (West 2011). The trial court

assessed punishment at life imprisonment without possibility of parole. See TEX.

PENAL CODE ANN. § 12.31 (West 2013). Appellant timely filed a notice of appeal.

Appellant’s court-appointed counsel on appeal has filed a motion to withdraw

from representing appellant and an Anders brief in which he represented that no valid

grounds for appeal exist and that appellant’s appeal is frivolous. See Anders v.

California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se

response. The State has waived its opportunity to file an appellee’s brief to reply to

the brief counsel filed on appellant’s behalf.

When this Court receives an Anders brief from an appellant’s court-appointed

attorney asserting that no arguable grounds for appeal exist, we must independently

determine whether any arguable grounds for appeal exist by conducting our own

review of the entire record. Id., 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) (quoting same passage from Anders). 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.)).

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. Id. We do not rule on the ultimate merits of any

arguable issues. Id. On remand, the trial court must appoint new counsel to represent

appellant, because appellant is entitled to have new counsel address the merits of the

issues. 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, and we conclude that this appeal warrants further

development by counsel. Accordingly, we (1) grant counsel’s motion to withdraw,

and (2) abate this appeal and remand the cause to the trial court to appoint new

appellate counsel to present any grounds that might support the appeal.

In addition to any other grounds for appeal, the court directs counsel to

consider the issue of whether the lesser included offense of murder should have

been submitted in the charge of the court and whether such an error, if any,

caused harm. 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.

It is so ORDERED.

Judge’s signature: /s/ Jane Bland

 Acting individually Acting for the Court

Before Justices Higley, Bland, and Brown.

Date: July 18, 2017