The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Charles Lynch v. The State of Texas
Appellate case number: 01-17-00668-CR
Trial court case number: 15-CR-3172
Trial court: 405th District Court of Galveston County
Charles Lynch appeals his conviction for possession of a controlled substance with intent
to deliver, 4-200 grams. Lynch’s attorney has filed a brief in which he concludes that after a review
of the record and pertinent law, the appeal is frivolous and without merit. See Anders v. California,
386 U.S. 738, 87 S. Ct. 1396 (1967). Lynch filed a pro se response.
Under Anders, if an appointed attorney concludes after reviewing the record and
applicable law that the appeal is without merit, he must advise the court, file a motion to
withdraw, and file a brief discussing any issue that might arguably support the appeal. See
id. at 744, 87 S. Ct. at 1400; Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014).
The appellate court must then perform an independent examination of the record and the
law to determine whether appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400. If the appellate court determines that there are arguable issues, it must abate the
appeal and remand with orders for the trial court to appoint new counsel. See Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The question before us is not who will
ultimately prevail but instead whether any non-frivolous issue exists.
After examining the record and applicable law, the court has determined that a
nonfrivolous issue may exist. For instance, on appeal, the defendant could potentially bring
a nonfivolous challenge concerning the extraneous offense evidence admitted in this case,
as well as on restitution. Accordingly, the court strikes appellant’s brief, grants the motion
to withdraw, abates the appeal, and remands the case to the trial court for a hearing to take
place for appointment of new counsel within 30 days of this order. A supplemental clerk’s
record and reporter’s record of the hearing shall be filed within 45 days if this order. The
appellant’s brief will be due within 30 days after new counsel is appointed.
It is so ORDERED.
Judge’s signature: /s/ Jennifer Caughey
Acting individually Acting for the Court
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
Date: October 23, 2018