COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00052-CR

NO. 02-14-00053-CR

NO. 02-14-00054-CR

DOUGLAS BRAY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NOS. F-2013-0106-A, F-2013-2036-A, F-2013-2037-A

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ABATEMENT ORDER

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Appellant made an open plea of guilty to aggravated assault with a deadly 

weapon, assault against a public servant, and harassment of a public servant. 

See Tex. Penal Code Ann. §§ 22.01(b)(1), 22.02(b), 22.11(a)(2) (West 2011 & 

Supp. 2014). The jury assessed appellant’s punishment at five years’ 

confinement for the aggravated assault and ten years’ confinement for the 

assault-against-public-servant offense and for the harassment-of-a-publicservant offense. See id. §§ 12.33–.34 (West 2011). The jury recommended 
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community supervision for the public-servant-related offenses, and the trial court 

suspended the imposition of the ten-year sentences and placed appellant on ten 

years’ community supervision, to run concurrently with his other sentence.

On December 31, 2014, these appeals were submitted to the court as 

frivolous appeals pursuant to Anders v. California. See 386 U.S. 738, 87 S. Ct. 

1396 (1967). In reviewing the tendered brief and supplemental brief, the clerk’s 

record, the supplemental clerk’s record, and the reporter’s record in each case, 

as required by Anders, we have determined that counsel could have raised at 

least one arguable issue in each case, namely, ineffective assistance of counsel 

with regard to trial counsel’s having failed to raise (and thereby having failed to 

preserve for appellate review) a defensive issue with regard to appellant’s mental 

state at the time that he committed the offenses despite having appellant’s 

competency to stand trial assessed and an objection to appellant’s sentences as 

violating the Eighth Amendment’s prohibition against cruel and unusual or 

excessive punishment. Additionally, with regard to cause numbers 02-14-00053-

CR and 02-14-00054-CR, counsel could have raised ineffective assistance of 

counsel with regard to trial counsel’s failure to object to the imposition of 

$4,468.75 in appointed counsel fees as a term or condition of community 

supervision when the record reflects that appellant was indigent; counsel also 

could have examined whether conviction of both of these offenses, involving the 

same public servant and the same encounter, violated the Fifth Amendment’s 
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multiple punishments prohibition, and whether this needed to be preserved as an 

argument for appeal.

Without expressing a view as to whether reversible error is actually shown 

in the records before us, or whether there are other arguable issues that counsel 

could have raised, we conclude that appellant’s court-appointed counsel should 

have provided full briefing on the merits rather than by way of Anders. Because 

we have determined that the record in each case supports at least one arguable 

issue, we are obligated to order the trial court to appoint new counsel to 

represent appellant. See Penson v. Ohio, 488 U.S. 75, 83–84, 109 S. Ct. 346, 

351–52 (1988); see also Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 

1991) (stating that if grounds are deemed arguable, the court of appeals must 

abate the appeal and remand the case to the trial court with orders to appoint 

other counsel to present the arguable grounds and any others that might support 

the appeal).

Therefore, we grant counsel’s motions to withdraw, abate the appeals, and 

remand these causes to the trial court for the appointment of new counsel. A 

supplemental clerk’s record containing the trial court’s order appointing new 

counsel in each cause shall be filed in this court on or before February 13, 2015. 

Upon our receipt of the supplemental records, the appeals shall be automatically 

reinstated, and the court will set briefing deadlines.

While these cases are on remand in the trial court, the trial court shall also:
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1. Modify the judgments in all three cause numbers by obtaining appellant’s 

thumbprint in accordance with code of criminal procedure articles 38.33 and 

42.01. See Tex. Code Crim. Proc. Ann. art. 38.33 (West 2005), art. 42.01, 

§ 1(13), (23) (West Supp. 2014); see also Norton v. State, 434 S.W.3d 767, 

773–74 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (ordering trial court to 

modify judgment to include thumbprint); Sparkman v. State, 55 S.W.3d 625, 

629 (Tex. App.—Tyler 2000, no pet.) (remanding case to the trial court to 

obtain appellant’s thumbprint on judgment); and

2. Modify the judgment in trial court cause number F-2013-2036-A to reflect that 

appellant was convicted of third-degree felony assault against a public 

servant under penal code section 22.01.

The clerk of this court shall transmit a copy of this order to appellant, the 

attorneys of record, the trial court judge, the trial court clerk, and the court 

reporter.

DATED January 14, 2015.

PER CURIAM

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

GABRIEL, J., concurs.