In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-13-00186-CR 

________________________

ERIC URIAH CARRILLO, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 181st District Court 

Randall County, Texas 

Trial Court No. 23,880-B; Honorable John B. Board, Presiding 

 

February 24, 2014 

 

ORDER ON MOTION FOR EXTENSION OF TIME 

AND RESPONSE TO ANDERS BRIEF 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

Following a plea of not guilty, Appellant, Eric Uriah Carrillo, was convicted by a 

jury of robbery, twice enhanced,1and sentenced to forty-five years confinement and a 

$10,000 fine. Notice of Appeal was filed on June 7, 2013, the appellate record was 

complete on August 20, 2013, and Appellant’s brief was due September 19, 2013. On 

 

1

TEX. PENAL CODE ANN. § 29.02 (West 2011) and § 12.42(b) (West Supp. 2013).
2

September 18, 2013, court-appointed counsel, W. Brooks Barfield, Jr., filed a Motion to 

Withdraw supported by an Anders2brief certifying the appeal was without merit and he 

could not advance any grounds for reversal of Appellant’s conviction. By letter dated 

September 24, 2013, this Court notified Appellant that he had until October 24, 2013, to 

file a pro se response. 

APPELLATE PROCEDURAL HISTORY

On October 24, 2013, David Martinez filed a Motion to Substitute Counsel

together with a Motion for Extension of Time for Filing Appellant’s Response to Anders 

Brief. Mr. Martinez represented he had been retained by Appellant and needed time to 

review the appellate record and file a “brief.” By letter dated October 30, 2013, this 

Court acknowledged Mr. Martinez’s motions but advised him that considering the 

procedural status of the appeal, his motions would be “taken under advisement pending 

the filing and consideration of Appellant’s pro se response.” 

On October 28, 2013, Appellant, proceeding pro se, filed a document giving 

notice of his intent to file a “pro se brief or response” to the Anders brief filed by Mr. 

Barfield and requesting an extension of time in which to do so. Appellant was granted 

until December 2, 2013, to file his response. A subsequent extension was granted until

January 6, 2014.

On January 3, 2014, this Court received an inquiry from Appellant asking this 

Court to allow Mr. Martinez to substitute as his counsel and to allow him to file a brief on 

his behalf. Again considering the nature of an Anders appeal and the expiration of time 

 

2

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
3

to file a merits brief, this Court issued a letter on January 10, 2014, construing Mr. 

Martinez’s motion to substitute as a notice of appearance per Rule 6.2 of the Texas 

Rules of Appellate Procedure and granting an extension of time until February 7, 2014, 

in which Appellant could file a pro se response.

3

 The letter provided, “Mr. Martinez is 

permitted to assist Appellant in preparing his response” and noted that no further 

extensions of time would be granted absent exigent circumstances.

On February 17, 2014, after the deadline for filing a response to the Anders brief 

had expired, Mr. Martinez filed documents entitled Motion for Extension of Time for 

Filing Response to Ander’s [sic] Brief and Appellant’s Response to Ander’s [sic] Brief. 

By the motion, counsel represents he had not previously requested an extension when 

in fact he filed a motion for extension on October 24, 2013, signed by him and not by 

Appellant acting in a pro se capacity. Counsel then provides as grounds for the 

subsequent extension request what he characterizes as exigent circumstances—

formatting issues with a new computer, inability to locate his research and notes, and an 

illness on February 10, 2014—after the February 7th deadline.

Furthermore, the “response” filed by Mr. Martinez on behalf of Appellant actually 

purports to be a brief on the merits challenging the sufficiency of the evidence to 

support Appellant’s robbery conviction. The document even includes a “prayer”

requesting that this Court determine the evidence to be insufficient and dismiss the 

case. The response was submitted through and electronically signed by Mr. Martinez. 

It is not a pro se response to the Anders brief filed by Mr. Barfield. As such, it is in 

 

3

At this point the Court considers Mr. Barfield to be Appellant’s lead counsel and Mr. Martinez to 

be an attorney “other than lead counsel” who has entered an appearance on behalf of the Appellant. See 

TEX. R. APP. P. 6.2.
4

contravention to this Court’s directive for Mr. Martinez to assist Appellant in preparing a 

pro se response to the Anders brief filed by Mr. Barfield.

ANALYSIS

Appellant’s decision to retain appellate counsel while represented by courtappointed counsel who has already filed an Anders brief in support of a motion to 

withdraw and after the deadline for filing a merits brief does not dictate an appellate 

court’s review of an Anders appeal. That procedure is mandated by Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and its progeny. When 

faced with an Anders appeal and a motion to withdraw, an appellate court is tasked with 

assuring that counsel has provided his client with a diligent and thorough search of the 

record for any arguable claim that might support a plausible basis for reversal of the 

client’s conviction and determine whether counsel has correctly concluded the appeal is 

frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 

1895, 100 L.Ed.2d 440 (1988). The court must then make a separate inquiry and “itself 

conduct a full examination of all the proceeding[s]” to decide whether the appeal is 

frivolous. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

An Anders brief that is well taken does not involve the substitution of counsel. 

See Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006). This Court will review 

Mr. Barfield’s Anders brief and make an independent examination of the proceedings to 

determine whether the Anders brief is well taken. If this Court agrees with Mr. Barfield’s 

evaluation that no non-frivolous issues exist, his motion to withdraw will be granted and 
5

Appellant’s conviction will be affirmed.

4

 See Penson, 488 U.S. at 80. If, however, this 

Court finds an arguable issue, Mr. Barfield will be discharged and Appellant will be

entitled to new representation. In the absence of the appearance of new lead counsel,

this Court will follow established procedures to abate the appeal and remand the cause 

to the trial court for a determination on the issue of counsel. See In re Schulman, 252 

S.W.3d 403, 409 (Tex. Crim. App. 2008).

CONCLUSION

Mr. Martinez’s Motion for Extension of Time for Filing Response to Ander’s [sic]

Brief is denied and Appellant’s Response to Ander’s [sic] Brief is stricken. The appeal 

will proceed on the record by submission without oral argument.

It is so ordered.

Per Curiam

Do not publish.

 

4

The Fourteenth Amendment guarantees a criminal appellant the right to counsel on a first 

appeal as of right. Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). 

However, it does not demand that States require appointed counsel to press upon their appellate courts 

wholly frivolous arguments. Penson, 488 U.S. at 84. An attorney, whether appointed or retained, is 

under an ethical obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252 S.W.3d at 407 

(citing McCoy, 486 U.S. at 436).