In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-17-00271-CR 

TIMOTHY DANFORTH, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the County Court at Law No. 2 

McLennan County, Texas 

Trial Court No. 2016-0698-CR2, Honorable T. Bradley Cates, Presiding 

 

November 1, 2018 

 

ORDER OF ABATEMENT AND REMAND 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Appellant Timothy Danforth has appealed his conviction by jury of the 

misdemeanor offense of resisting arrest, search or transportation,

1 and the resulting 

court-imposed sentence of 250 days in the county jail. Presenting the appeal, counsel 

has filed an Anders2 brief in support of a motion to withdraw. We will grant counsel’s 

 

1 TEXAS PENAL CODE ANN. § 38.03 (West 2018).

2 Anders v. California, 386 U.S. 738 (1967).
2

motion to withdraw, but abate the appeal and remand the case to the trial court for 

appointment of new counsel.

Appellant was charged by a two-count information with resisting arrest, search or 

transportation, and criminal trespass. The State proceeded to trial only on the resisting 

charge. During voir dire, the State sought to exercise peremptory challenges against 

three venire members. Appellant objected to each challenge under Batson v. Kentucky, 

476 U.S. 79, 86 (1986). The court sustained appellant’s Batson objection as to one 

member, and that member was seated on the jury. The court overruled the Batson 

objection as to the other two members.

After hearing evidence, the jury found appellant guilty and the court assessed 

punishment as noted. This appeal, and counsel’s motion to withdraw and Anders brief, 

followed.

As the United States Supreme Court has stated, “The so-called ‘Anders’ brief 

serves the valuable purpose of assisting the court in determining both that counsel in fact 

conducted the required detailed review of the case and that the appeal is indeed so 

frivolous that it may be decided without an adversary presentation.” Penson v. Ohio, 488 

U.S. 75, 81-82 (1988). Our Texas courts also have recognized that an Anders brief is 

filed in support of counsel’s motion to withdraw. See, e.g., In re Schulman, 252 S.W.3d 

403, 406 (Tex. Crim. App. 2008) (the brief “accompanies the motion to withdraw as an 

assurance to the appellate court that the attorney has indeed made a thorough and 

conscientious examination of the record, has provided the appellate court with the 
3

appropriate facts of the case and its procedural history, and has pointed out any 

potentially plausible points of error”).

In support of her motion to withdraw, counsel certified she has conducted a 

conscientious examination of the record, and in her opinion, it reflects no potentially 

plausible basis for reversal of appellant’s conviction. Anders, 386 U.S. at 744-45; In re 

Schulman, 252 S.W.3d at 406. Counsel has discussed why, under the controlling 

authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807, 813 

(Tex. Crim. App. 1978). Counsel also demonstrated that she has complied with the 

informational burdens that accompany the filing of an Anders brief. See Kelly v. State,

436 S.W.3d 313, 319 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d at 408. By 

letter, this Court notified appellant of his opportunity to submit a response to the Anders 

brief and motion to withdraw filed by counsel. Appellant has not filed a response.

In conformity with the standards set out by the United States Supreme Court, we 

do not rule on counsel’s motion to withdraw until we have independently examined the 

record. Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.).

After review of the Anders brief and the record in this case, we are not satisfied the appeal 

is so frivolous that we may decide it without an adversary presentation. Penson, 488 U.S. 

at 81-82. In particular, while the Anders brief discusses the Batson challenges made 

during voir dire, we do not find the discussion adequately addresses all potential issues 

concerning the court’s handling of those challenges.

Accordingly, we grant counsel’s motion to withdraw, abate the appeal, and remand 

the cause to the trial court. On remand, the trial court is directed to appoint new counsel 
4

to represent appellant in this appeal and to direct the trial court clerk to file with the 

appellate clerk a supplemental clerk’s record containing the order appointing new 

appellate counsel and the name, address, email address and state bar number of newly 

appointed counsel. The trial court is further directed to order the newly appointed counsel: 

(1) to file with the appellate clerk, within five days after new counsel’s appointment, a 

letter certifying that new counsel has complied with the requirements of article 26.04(j)(1) 

of the Code of Criminal Procedure with regard to the representation of appellant, TEX.

CODE CRIM. PROC. ANN. art. 26.04(j)(1) (West 2018); and (2) unless otherwise instructed 

by appellant, to file an appellant’s brief developing any ground that arguably supports 

reversal or modification of the judgment. Stafford v. State, 813 S.W.2d 503, 510 (Tex. 

Crim. App. 1991). The trial court is directed to appoint new appellate counsel on or before 

December 3, 2018, unless it notifies this Court of the need for additional time. Appellant’s 

appellate brief shall be due thirty days after the date on which new appellate counsel is 

appointed.

It is so ordered.

Per Curiam

Do not publish.