Order filed October 18, 2019

 

In The

Eleventh Court of Appeals __________

No. 11-19-00190-CR

__________

BILLY MARSHALL SHERMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR15259

O R D E R

The trial court convicted Appellant, Billy Marshall Sherman, of the offense of 

online solicitation of a minor with the intent to commit the offense of sexual 

performance by a child. The trial court assessed Appellant’s punishment at 

confinement for ten years. The trial court sentenced Appellant in absentia. We abate 

the appeal.
2

Appellant’s court-appointed counsel has filed a motion to withdraw. The 

motion is supported by a brief in which counsel professionally and conscientiously 

examines the record and applicable law and concludes that this appeal is frivolous. 

Counsel has provided Appellant with a copy of the brief, a copy of the motion to 

withdraw, and a copy of the clerk’s record and the reporter’s record “except for the 

sealed part of the exhibits.” Counsel advised Appellant of his right to review the 

record and file a response to counsel’s brief. Counsel also advised Appellant of his 

right to file a petition for discretionary review with the clerk of the Texas Court of 

Criminal Appeals seeking review by that court. See TEX. R. APP. P. 68. It appears 

that court-appointed counsel has attempted to comply with the requirements of 

Anders v. California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. 

Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). 

Appellant has not filed a pro se response to counsel’s Anders brief. Following 

the procedures outlined in Anders and Schulman, we have independently reviewed 

the record, and we disagree with court-appointed counsel’s conclusion that the 

appeal is frivolous. Of particular concern to this court is the fact that Appellant was 

not present when the trial court pronounced Appellant’s sentence. See TEX. CODE 

CRIM. PROC. ANN. art. 42.03, § 1(a) (West 2018). 

Accordingly, we grant counsel’s motion to withdraw, abate this proceeding, 

and remand the cause to the trial court for the appointment of new appellate counsel. 

See Bledsoe, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). We direct the trial 

court to appoint new counsel to represent Appellant on appeal. The trial court shall 

furnish the name, address, telephone number, and state bar number of new counsel 

in its order appointing new counsel. The order shall be included in a supplemental 

clerk’s record, which shall be filed with the clerk of this court on or before
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November 1, 2019. Appellant’s brief is due to be filed in this court thirty days from 

the date of the trial court’s appointment of new counsel. 

The motion to withdraw is granted; the appeal is abated; and the cause is

remanded to the trial court in accordance with this order. 

PER CURIAM

October 18, 2019

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

 1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.